As always, before reading my blog post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
[UPDATE: Some information in this blog post is no longer accurate due to changes in the law. Please see my blog post on changes in the law for 2019 for more information.]
Introduction
I have repeatedly covered on this blog the concept of "self-help" in landlord/tenant law. Self-help is when a landlord or tenant takes matters into their own hands, without the court, and for a tenant typically includes withholding rent. In residential leases, self-help is strictly forbidden by law. Today, however, I want to touch on a different but related topic - delayed rent.
Say you are a tenant and you've had a financial issue arise. You know you will have the money to pay your rent in a few weeks, but you don't have it right now. What should you do? Well, recommendation one is to talk to the landlord and see if he will agree to accept a delayed payment (if he does, get that agreement in writing). If that doesn't work, recommendation two is to try to scrape the money together to pay. If that doesn't work, recommendation three is to prepare to utilize a little known feature of Virginia landlord/tenant law called the "redemption tender" or "redemption payment." I will get into the risks and drawbacks of this approach later in this post - there's a reason it is my third recommendation, not my first - but executed properly, this process can buy you about a month to get a late rent payment in without facing eviction.
In today's blog post, I will discuss the way "redemption tenders/payments" work, how to execute them, and their risks and drawbacks.
VRLTA vs. Non-VRLTA Leases
Any long-time reader of my blog knows that the first question you need to ask when dealing with landlord/tenant matters is which landlord/tenant law applies to your lease. The basic breakdown of figuring that out can be found here. Once you figure out which law applies, the next question is to ask what the difference between the two laws may be. In this case, the law is largely the same. "Redemption tenders/payments" for non-VRLTA leases are governed by Virginia Code Section 55-243 and for VRLTA leases they are governed by Virginia Code Section 55-248.34:1. The relevant provisions of the two code sections are identical, so for most purposes this post applies equally to both kinds of leases. Note, however, that the non-VRLTA provision does not have a non-waiver rule, meaning that a lease could probably waive your right to use this procedure. I will say, however, that to date I have never seen a lease that waives the right to a "redemption tender/payment."
So What Is a Redemption Tender/Payment?
"Redemption tenders" and "redemption payments" are two processes that, if completed properly, will cause an unlawful detainer action (a civil case for eviction) to be dismissed entirely (thus "redeeming" your right to live on the property) if the reason for the unlawful detainer is non-payment of rent. In other words, to take advantage of this provision of law, you will have had to not pay your rent, been served with a pay or quit notice, not paid in accordance with that notice, and had an unlawful detainer action filed against you.
A "redemption tender" is a fairly limited option primarily available to those with lower incomes. A redemption tender is a letter signed by a governmental entity or a non-profit charity promising payment in full of the amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs - within 10 days after the first return day on the unlawful detainer. If presented to the court at the return day, the return day will be continued for 10 days. If the payment is made to the landlord before that time is up, the unlawful detainer is dismissed and your lease is resumed. If it is not, possession is granted to the landlord immediately, without a trial.
A "redemption payment" occurs when at your court date (specifically, the first return) you pay the landlord, the court, or the landlord's attorney the full amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs. If you do this, the unlawful detainer will be dismissed, and your lease is resumed.
Limitations
There are some limitations on this option. For example, this option is only available for residential leases, not commercial leases (unless provided for in the lease). Additionally, a "redemption payment" can only be done once in any given 12 month period. Finally, if you dispute the amount owed to the landlord, then a redemption is not available to you as the court is unlikely to be willing (and in the case of a redemption tender, is not allowed) to hear an argument on this for the purpose of a redemption.
Risks and Drawbacks
So, the risks and drawbacks of the "redemption" approach should be very clear. The risk is mainly that you will not handle it properly - that you will underpay, still get evicted, and now be out the money that you paid. If you have done one before, you may forget when your last "redemption payment" was and try to do it a second time in 12 months, getting evicted in the process. The final risk, if you have a non-VRLTA lease, is that you may have missed a lease provision waiving your right to a redemption, in which case you will be out of luck. I would also note that as this is a very rarely used provision of law, you also risk appearing in front of a judge who does not understand it (and has never seen it before) and may not apply it properly.
This approach also has drawbacks. First and foremost, it is much more expensive than paying your rent on time or having an agreed delay. You will have to pay not only the rent, but the court costs and attorneys' fees of your landlord and any late charges included in your lease. You also lose your ability to contest the amount you owe - if you disagree with what your landlord claims you owe, you either have to go to trial (and risk eviction) or suck it up and pay what your landlord claims. Finally, you create a public record (since a lawsuit has been filed) of your non-payment of rent that future potential landlords may discover.
For these reasons, I consider redemption to be a last resort option.
Conclusion
"Redemption tenders" and "redemption payments" are last resort options for tenants who simply cannot pay their rent on time for a month but know they will have the money later. If you are considering making a redemption payment or have a tenant who is attempting to do so, you may want to consult with an attorney to make sure it is being done right. You can contact me by calling (703)281-0134 or e-mailing me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Thursday, October 30, 2014
Thursday, October 23, 2014
No Blog Post This Week
Hi all. It looks like I've come down with whatever's been going around, so it does not look like I'm going to have the wherewithal to do a blog post this week. I'll be back next week though!
That being said, it's always a good time to remember that just because you haven't paid your rent, doesn't mean the landlord can kick you out without a court order - and this is true whether you are covered by the Virginia Residential Landlord and Tenant Act or not. You can read more about that here.
That being said, it's always a good time to remember that just because you haven't paid your rent, doesn't mean the landlord can kick you out without a court order - and this is true whether you are covered by the Virginia Residential Landlord and Tenant Act or not. You can read more about that here.
Thursday, October 16, 2014
Defining Marital Property in Virginia
As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most important and well-known topics that comes up in divorce law is the division of property. It is also a topic that I have almost completely avoided on this blog. It's not that I don't think it's important - it most certainly is important. Rather, I have had trouble coming up with ways to talk about it while keeping blog posts on the topic of a reasonable length. You see, I can go on and on about the weird rules of spousal support, or how you calculate child support, but in my personal opinion, nothing about divorce law is more complicated than the laws surrounding the division of property.
Virginia is an "equitable division" state. We are also not a "community property" state. What this means is that we do not consider all property owned by married couples to be eligible for division, and when property is divided, there is no presumption that it should be divided 50/50. As a result, there are very complicated statutes on property division, and very, very many volumes of case law interpreting it. Today, I've decided to start addressing some of these issues, and to do so I'm starting at the beginning - what property actually gets divided?
Today's blog post will give a brief overview of the meaning of marital property - the property that gets divided in a divorce. Even this is a complicated concept with volumes of case law, so today's post will remain fairly basic.
Marital Property, Separate Property and Hybrid Property
So, as you can probably guess from the names, marital property is property that is considered to belong "to the marriage," while separate property belongs "to the person." Marital property is divided in a divorce, separate property is not - it stays with its owner. Hybrid property is property that is itself both separate and marital, so only the marital portion of hybrid property is divided.
All property you own prior to the marriage is generally considered your separate property. Similarly, any property you acquire after you separate is also considered your separate property. Some examples of this may be a retirement account that you owned before you were married - it is your separate property. A bank account that only has money in it that you earned after you separated - also your separate property.
All property you acquire during the marriage, however, is generally considered to be marital. Money you earn during the marriage, for example, is marital property, and the things it purchases are marital property.
But what happens when you mix separate and marital property?
Transmutation vs. Tracing
The general rule is that if you mix separate and marital property, the whole property becomes "transmuted" to marital property. There is an exception, however, where the owner of the separate property can "completely trace" his property.
I will give two examples. If you had a bank account before marriage but then started depositing your marital income into that account, the account will become marital. Money is fungible, and as a result, there is no realistic way to figure out what portion of the bank account is now marital and what portion is not.
On the other hand, if you use an entirely separate bank account to pay half the down payment on the house, and you can prove that the money was, in fact, used for the down payment, you now know what share of the initial equity in the house was separate, and can use that to calculate the portion of the house that remains separate.
Marital Contributions to Separate Property
There is another rule of some importance to know as well. If you bring separate property into the marriage, but then contribute marital property to it, or either party makes significant efforts to assist it during the marriage, and the property has a "substantial" increase in value, it might become hybrid property. There are several situations where this comes up - for example, a separately owned house brought into marriage where substantial work and improvements are then performed on it during the marriage. A recent Virginia Supreme Court case also counted as hybrid a pre-marital retirement account to which no contributions were made during the marriage, but on which the spouse who owned it had done a great deal of work in terms of active trading to increase its value during the marriage.
Retirement Plans
Now, I've alluded to retirement plans a couple of times, but they are one of the harder bits of property to define, so I do want to address that as well. Retirement plans come in two forms - defined contribution (such as an IRA or 401k) and defined benefit (such as a pension). Both are considered property in divorce, not merely future potential income, although payments from these plans can be considered income for the purpose of determining support (the interplay between income for support and income for property division is a whole other issue probably worthy of its own post). As a result, both are divisible, even if you are nowhere near retirement age yet.
For defined contribution plans, the "marital share" is generally considered to be all contributions made during the marriage, and the earnings and losses thereon. Contributions (and their earnings and losses) from before the marriage and from after the separation are generally considered a separate portion.
For defined benefit plans, there are a number of approaches that can be taken to determining the marital share, but the most common I have seen is the fraction formula. In the fraction formula, the percentage of the defined benefit plan that is considered marital is equal to an equation defined as x / y * 100 (you can leave out the 100 if you are just going for a decimal fraction rather than the percentage). In that formula, x is the number of months you were employed by the employer offering this plan where your month of work was credited towards your plan and you were married and not separated. For the denominator, y is the total number of months of work credited towards your plan as of the date you retire, whether married or not. Usually x will be defined by the date of divorce, but y will not be, and that's alright - y is not expected to be known yet as of the divorce date and the division can still be done with y unknown.
Now, it is worth noting that unlike the other areas of law in property division, there is a specific rule regarding division of retirement accounts. Specifically, once you have determined the marital share of a retirement plan, the non-owning spouse cannot be awarded more than 50% of the marital share of a retirement account. This was done to prevent people from potentially having their retirement savings wiped out by a divorce.
Restricted Stock Options
Another complicated area of property law is restricted stock options - these being stock options frequently awarded by employers which cannot be exercised until a certain date. If that date is after the separation, then you don't really have these options before the separation, so there is some debate in the law about whether they are marital or not. The general rule as it stands right now is that if they were earned during the marriage (so, for example, they were given as a bonus for work done during the marriage), they are marital, regardless of when they vest. If, however, they were given by employers not as compensation for work done, but rather as merely an incentive to continue working for that employer, then they are separate if they vest after the separation date.
This is an area of law that is still evolving, however, and I cannot say the above is the final word on the matter.
Separate Property Acquired During the Marriage
Now, there are some exceptions to the rule that property acquired during the marriage is marital that are worth discussing. The first exception is that property acquired during the marriage solely with separate property (so, for example, a TV bought with money from a separate, pre-marital bank account) is still separate. The second is that anything inherited during the marriage is separate property, unless the inheritance is from a will that specifically bequeathed the inheritance to the couple, rather than just one of the parties. The third is that any gifts that are given by someone other than the person's spouse to the person during the marriage also remain separate property.
Ownership Presumptions
I'm going to wrap things up here because this post is already longer than I'd like, but I do want to note that the law does have some presumptions regarding ownership that are worth remembering.
First and foremost, any property that is jointly owned is presumed to be marital. You can rebut this presumption with some strong evidence, but it is fairly unusual that a court will consider something jointly owned to be entirely separate - at best, you will sometimes get a finding of hybrid property.
Second, the law also presumes that property that is separately titled is separate. That being said, this presumption is much easier to rebut, because as soon as you show that the property was actually acquired during the marriage, the presumption switches to it being marital property.
Nonetheless, it is important to know these presumptions because of their impact on the burden of proof. If property is jointly owned, the party trying to prove separate ownership has the burden to prove it. If the property is separately owned, the party trying to assert marital ownership has the burden to establish that it was acquired during the marriage, but then the other party would have the burden to establish that it was still separate property.
Conclusion
The law surrounding property division is, in my opinion, the most complicated part of property law. Consider that this entire blog post only even talked about what property gets divided - we didn't even touch how that division is actually done - and we didn't even talk about all the topics in that arena. This is one of the biggest reasons why you should get an attorney if you have any property at all that needs to be divided. If you are involved in a divorce and have property to be divided, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our consultations are free for up to half an hour!
Introduction
One of the most important and well-known topics that comes up in divorce law is the division of property. It is also a topic that I have almost completely avoided on this blog. It's not that I don't think it's important - it most certainly is important. Rather, I have had trouble coming up with ways to talk about it while keeping blog posts on the topic of a reasonable length. You see, I can go on and on about the weird rules of spousal support, or how you calculate child support, but in my personal opinion, nothing about divorce law is more complicated than the laws surrounding the division of property.
Virginia is an "equitable division" state. We are also not a "community property" state. What this means is that we do not consider all property owned by married couples to be eligible for division, and when property is divided, there is no presumption that it should be divided 50/50. As a result, there are very complicated statutes on property division, and very, very many volumes of case law interpreting it. Today, I've decided to start addressing some of these issues, and to do so I'm starting at the beginning - what property actually gets divided?
Today's blog post will give a brief overview of the meaning of marital property - the property that gets divided in a divorce. Even this is a complicated concept with volumes of case law, so today's post will remain fairly basic.
Marital Property, Separate Property and Hybrid Property
So, as you can probably guess from the names, marital property is property that is considered to belong "to the marriage," while separate property belongs "to the person." Marital property is divided in a divorce, separate property is not - it stays with its owner. Hybrid property is property that is itself both separate and marital, so only the marital portion of hybrid property is divided.
All property you own prior to the marriage is generally considered your separate property. Similarly, any property you acquire after you separate is also considered your separate property. Some examples of this may be a retirement account that you owned before you were married - it is your separate property. A bank account that only has money in it that you earned after you separated - also your separate property.
All property you acquire during the marriage, however, is generally considered to be marital. Money you earn during the marriage, for example, is marital property, and the things it purchases are marital property.
But what happens when you mix separate and marital property?
Transmutation vs. Tracing
The general rule is that if you mix separate and marital property, the whole property becomes "transmuted" to marital property. There is an exception, however, where the owner of the separate property can "completely trace" his property.
I will give two examples. If you had a bank account before marriage but then started depositing your marital income into that account, the account will become marital. Money is fungible, and as a result, there is no realistic way to figure out what portion of the bank account is now marital and what portion is not.
On the other hand, if you use an entirely separate bank account to pay half the down payment on the house, and you can prove that the money was, in fact, used for the down payment, you now know what share of the initial equity in the house was separate, and can use that to calculate the portion of the house that remains separate.
Marital Contributions to Separate Property
There is another rule of some importance to know as well. If you bring separate property into the marriage, but then contribute marital property to it, or either party makes significant efforts to assist it during the marriage, and the property has a "substantial" increase in value, it might become hybrid property. There are several situations where this comes up - for example, a separately owned house brought into marriage where substantial work and improvements are then performed on it during the marriage. A recent Virginia Supreme Court case also counted as hybrid a pre-marital retirement account to which no contributions were made during the marriage, but on which the spouse who owned it had done a great deal of work in terms of active trading to increase its value during the marriage.
Retirement Plans
Now, I've alluded to retirement plans a couple of times, but they are one of the harder bits of property to define, so I do want to address that as well. Retirement plans come in two forms - defined contribution (such as an IRA or 401k) and defined benefit (such as a pension). Both are considered property in divorce, not merely future potential income, although payments from these plans can be considered income for the purpose of determining support (the interplay between income for support and income for property division is a whole other issue probably worthy of its own post). As a result, both are divisible, even if you are nowhere near retirement age yet.
For defined contribution plans, the "marital share" is generally considered to be all contributions made during the marriage, and the earnings and losses thereon. Contributions (and their earnings and losses) from before the marriage and from after the separation are generally considered a separate portion.
For defined benefit plans, there are a number of approaches that can be taken to determining the marital share, but the most common I have seen is the fraction formula. In the fraction formula, the percentage of the defined benefit plan that is considered marital is equal to an equation defined as x / y * 100 (you can leave out the 100 if you are just going for a decimal fraction rather than the percentage). In that formula, x is the number of months you were employed by the employer offering this plan where your month of work was credited towards your plan and you were married and not separated. For the denominator, y is the total number of months of work credited towards your plan as of the date you retire, whether married or not. Usually x will be defined by the date of divorce, but y will not be, and that's alright - y is not expected to be known yet as of the divorce date and the division can still be done with y unknown.
Now, it is worth noting that unlike the other areas of law in property division, there is a specific rule regarding division of retirement accounts. Specifically, once you have determined the marital share of a retirement plan, the non-owning spouse cannot be awarded more than 50% of the marital share of a retirement account. This was done to prevent people from potentially having their retirement savings wiped out by a divorce.
Restricted Stock Options
Another complicated area of property law is restricted stock options - these being stock options frequently awarded by employers which cannot be exercised until a certain date. If that date is after the separation, then you don't really have these options before the separation, so there is some debate in the law about whether they are marital or not. The general rule as it stands right now is that if they were earned during the marriage (so, for example, they were given as a bonus for work done during the marriage), they are marital, regardless of when they vest. If, however, they were given by employers not as compensation for work done, but rather as merely an incentive to continue working for that employer, then they are separate if they vest after the separation date.
This is an area of law that is still evolving, however, and I cannot say the above is the final word on the matter.
Separate Property Acquired During the Marriage
Now, there are some exceptions to the rule that property acquired during the marriage is marital that are worth discussing. The first exception is that property acquired during the marriage solely with separate property (so, for example, a TV bought with money from a separate, pre-marital bank account) is still separate. The second is that anything inherited during the marriage is separate property, unless the inheritance is from a will that specifically bequeathed the inheritance to the couple, rather than just one of the parties. The third is that any gifts that are given by someone other than the person's spouse to the person during the marriage also remain separate property.
Ownership Presumptions
I'm going to wrap things up here because this post is already longer than I'd like, but I do want to note that the law does have some presumptions regarding ownership that are worth remembering.
First and foremost, any property that is jointly owned is presumed to be marital. You can rebut this presumption with some strong evidence, but it is fairly unusual that a court will consider something jointly owned to be entirely separate - at best, you will sometimes get a finding of hybrid property.
Second, the law also presumes that property that is separately titled is separate. That being said, this presumption is much easier to rebut, because as soon as you show that the property was actually acquired during the marriage, the presumption switches to it being marital property.
Nonetheless, it is important to know these presumptions because of their impact on the burden of proof. If property is jointly owned, the party trying to prove separate ownership has the burden to prove it. If the property is separately owned, the party trying to assert marital ownership has the burden to establish that it was acquired during the marriage, but then the other party would have the burden to establish that it was still separate property.
Conclusion
The law surrounding property division is, in my opinion, the most complicated part of property law. Consider that this entire blog post only even talked about what property gets divided - we didn't even touch how that division is actually done - and we didn't even talk about all the topics in that arena. This is one of the biggest reasons why you should get an attorney if you have any property at all that needs to be divided. If you are involved in a divorce and have property to be divided, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our consultations are free for up to half an hour!
Tuesday, October 14, 2014
Classic Law is Your Friend: Using Common Sense in Virginia Legal Matters
Today's classic blog post discusses situations where, in reality, you may be better off listening to your common sense than the strictest rules of law. It was originally posted on November 6, 2013 and was titled "Common Sense vs. The Law - When Doing What Makes Sense IS the Right Choice."
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
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 involved in this post apply only to the Commonwealth of Virginia.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea. [Remember, however, that every situation is unique, and if you aren't sure which way to go, you are best off speaking with an attorney who can address your specific case.]
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law [or more specifically, their rights under the law] and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following [at least usually] is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
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 involved in this post apply only to the Commonwealth of Virginia.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea. [Remember, however, that every situation is unique, and if you aren't sure which way to go, you are best off speaking with an attorney who can address your specific case.]
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law [or more specifically, their rights under the law] and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following [at least usually] is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Thursday, October 9, 2014
Same-Sex Marriage in Virginia: Untangling the Legal Complexities
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 shall apply only to the Commonwealth of Virginia.
Introduction
As discussed on Monday, same-sex marriage is now legal in Virginia. While this is obviously a very exciting time for many same-sex couples in Virginia, the reality is the old laws are still on the books (just no longer enforceable), and in general your same-sex relationship will still be in the legal limbo it was in before Monday unless you take concrete steps to change it. Today I will address some of the important steps same-sex couples in Virginia need to take in order to take advantage of the change in law. Please note that some of these steps need to be followed even by couples that were already legally married in other states but resided in Virginia.
First of all, you need to get married
While Virginia law covering who can and can't get married has changed, Virginia law regarding how you get married hasn't. This means that if you had a religious marriage ceremony (or a civil one) in Virginia previously, you aren't suddenly legally married. In order for a marriage conducted in Virginia to be legally valid, you must follow a three step process, and it must be followed in this order:
Of course, this provision only applies to same-sex couples who previously got married in Virginia. If you were legally married in another state, then you don't need to get married again - your marriage will now be recognized in Virginia.
Re-title your property
There are many advantages that states give to married couples that will become available to you automatically with the change in law (if you were already legally married elsewhere) - and of course federal advantages were given to you with the Supreme Court's decision in Windsor back in June. However, some of these advantages are not automatically given, meaning you need to take action. One of them is how your home is titled.
In general, there are three ways property can be titled - tenancy in common, joint tenancy and tenancy by the entirety. A tenancy in common creates the idea that you each own half the property, you can each fully dispose of your half as you wish, but a creditor can also attach to your half and force the sale of the property. A joint tenancy means you each jointly own the whole property, but this can be broken up at any time by either of you, and creditors are sometimes able to get in and take a lien on the property. A tenancy by the entirety means you each own the whole property as a single entity, thus neither of you can break up the tenancy by the entirety without the agreement of the other, and only a creditor who is a joint creditor (as in, you both owe that creditor money) can come in and place a lien on your property.
A tenancy by the entirety is legally only available to a married couple. As such, if you bought property jointly before the change in law, even if you were legally married in another state, Virginia law did not recognize your marriage and you were, at best, made joint tenants. You should see a property lawyer ASAP to get your property re-titled as a tenancy by the entirety to take advantage of its availability.
Re-title your bank account
The above goes double for a joint bank account. Even a joint bank account that is owed as a "joint tenancy" can have up to half of it garnished by a creditor of just one owner (with some very rare exceptions). If a bank account is owned as a tenancy by the entirety, however, a creditor of just one owner cannot touch the account in a garnishment. You should go to your bank and ask to have your account re-titled as a tenancy by the entirety - be aware they may require you to close your current account and open a new one.
Review your estate plan
The change in law will have an impact on a wide array of issues in estate planning - too numerous for me to list. This would be a very good time to go to your estate planning attorney and review your wills, medical directives, etc. to make sure they do what you want them to. Same with your beneficiary designations on life insurance policies, retirement plans, etc.
Review your insurance policies
Many health, homeowners and auto insurance policies provide benefits for families, but require you to be married to take advantage. Again, these won't be changed automatically just because the law has changed - you need to update your marital status with the companies and potentially apply for new policies.
Consider a marital agreement
Perhaps one of the most confusing aspects of same-sex marriage will be what happens if you get divorced. Usually, most property acquired during a marriage is considered "marital property" at the time of divorce - but how do you define "during a marriage" in this case? If you were only married in Virginia, then you were clearly not legally married previously, so the clock will only start ticking once you get legally married - but what if you were legally married in another state, then lived in Virginia where your marriage wasn't recognized? We can have guesses as to what the courts will say, but the best plan to prevent problems if a divorce becomes necessary is a marital agreement.
Marital agreements are just like pre-marital agreements, except they happen after you are already married. I get into more detail about these agreements in a blog post from last August, but the key is you can resolve property issues by a marital agreement pretty much however you want. If you want all property from the time your non-legally recognized marriage was performed in Virginia to be recognized as marital, your marital agreement can do that.
Look, no one wants to think their marriage might end, but somewhere around 35% of marriages do, and you really should prepare yourself. If you don't, you could be in for a much more expensive divorce than usual because of the extra legal complications.
Get extra copies of your completed marriage license
As I said before, the old laws will remain on the books until actually removed by the General Assembly - they are not automatically removed just because they are unenforceable. Combine this with the fact that most government employees were trained under the old law, and you are bound to run into at least some trouble somewhere along the way in updating your records, property, etc. Having copies of your marriage license on hand to prove that you are, in fact, married would be one of the easiest ways to get past this problem. You can get copies of your Virginia marriage license from the court in which it was issued or from the Virginia Office of Vital Records in Richmond.
Conclusion
The sudden change in Virginia law for same-sex marriages could create a number of legal issues for same-sex couples here. If you would like to talk to an attorney about what you should do to protect yourself and take advantage of the new law, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Introduction
As discussed on Monday, same-sex marriage is now legal in Virginia. While this is obviously a very exciting time for many same-sex couples in Virginia, the reality is the old laws are still on the books (just no longer enforceable), and in general your same-sex relationship will still be in the legal limbo it was in before Monday unless you take concrete steps to change it. Today I will address some of the important steps same-sex couples in Virginia need to take in order to take advantage of the change in law. Please note that some of these steps need to be followed even by couples that were already legally married in other states but resided in Virginia.
First of all, you need to get married
While Virginia law covering who can and can't get married has changed, Virginia law regarding how you get married hasn't. This means that if you had a religious marriage ceremony (or a civil one) in Virginia previously, you aren't suddenly legally married. In order for a marriage conducted in Virginia to be legally valid, you must follow a three step process, and it must be followed in this order:
- You must obtain a marriage license from any Circuit Court in Virginia.
- You must be married by a person (minister, rabbi, civil officiant, etc.) certified to perform marriages in Virginia within 60 days after the license is issued.
- The person performing your marriage must return the now-completed marriage license to the court where it was issued within 5 days after performing the marriage.
Of course, this provision only applies to same-sex couples who previously got married in Virginia. If you were legally married in another state, then you don't need to get married again - your marriage will now be recognized in Virginia.
Re-title your property
There are many advantages that states give to married couples that will become available to you automatically with the change in law (if you were already legally married elsewhere) - and of course federal advantages were given to you with the Supreme Court's decision in Windsor back in June. However, some of these advantages are not automatically given, meaning you need to take action. One of them is how your home is titled.
In general, there are three ways property can be titled - tenancy in common, joint tenancy and tenancy by the entirety. A tenancy in common creates the idea that you each own half the property, you can each fully dispose of your half as you wish, but a creditor can also attach to your half and force the sale of the property. A joint tenancy means you each jointly own the whole property, but this can be broken up at any time by either of you, and creditors are sometimes able to get in and take a lien on the property. A tenancy by the entirety means you each own the whole property as a single entity, thus neither of you can break up the tenancy by the entirety without the agreement of the other, and only a creditor who is a joint creditor (as in, you both owe that creditor money) can come in and place a lien on your property.
A tenancy by the entirety is legally only available to a married couple. As such, if you bought property jointly before the change in law, even if you were legally married in another state, Virginia law did not recognize your marriage and you were, at best, made joint tenants. You should see a property lawyer ASAP to get your property re-titled as a tenancy by the entirety to take advantage of its availability.
Re-title your bank account
The above goes double for a joint bank account. Even a joint bank account that is owed as a "joint tenancy" can have up to half of it garnished by a creditor of just one owner (with some very rare exceptions). If a bank account is owned as a tenancy by the entirety, however, a creditor of just one owner cannot touch the account in a garnishment. You should go to your bank and ask to have your account re-titled as a tenancy by the entirety - be aware they may require you to close your current account and open a new one.
Review your estate plan
The change in law will have an impact on a wide array of issues in estate planning - too numerous for me to list. This would be a very good time to go to your estate planning attorney and review your wills, medical directives, etc. to make sure they do what you want them to. Same with your beneficiary designations on life insurance policies, retirement plans, etc.
Review your insurance policies
Many health, homeowners and auto insurance policies provide benefits for families, but require you to be married to take advantage. Again, these won't be changed automatically just because the law has changed - you need to update your marital status with the companies and potentially apply for new policies.
Consider a marital agreement
Perhaps one of the most confusing aspects of same-sex marriage will be what happens if you get divorced. Usually, most property acquired during a marriage is considered "marital property" at the time of divorce - but how do you define "during a marriage" in this case? If you were only married in Virginia, then you were clearly not legally married previously, so the clock will only start ticking once you get legally married - but what if you were legally married in another state, then lived in Virginia where your marriage wasn't recognized? We can have guesses as to what the courts will say, but the best plan to prevent problems if a divorce becomes necessary is a marital agreement.
Marital agreements are just like pre-marital agreements, except they happen after you are already married. I get into more detail about these agreements in a blog post from last August, but the key is you can resolve property issues by a marital agreement pretty much however you want. If you want all property from the time your non-legally recognized marriage was performed in Virginia to be recognized as marital, your marital agreement can do that.
Look, no one wants to think their marriage might end, but somewhere around 35% of marriages do, and you really should prepare yourself. If you don't, you could be in for a much more expensive divorce than usual because of the extra legal complications.
Get extra copies of your completed marriage license
As I said before, the old laws will remain on the books until actually removed by the General Assembly - they are not automatically removed just because they are unenforceable. Combine this with the fact that most government employees were trained under the old law, and you are bound to run into at least some trouble somewhere along the way in updating your records, property, etc. Having copies of your marriage license on hand to prove that you are, in fact, married would be one of the easiest ways to get past this problem. You can get copies of your Virginia marriage license from the court in which it was issued or from the Virginia Office of Vital Records in Richmond.
Conclusion
The sudden change in Virginia law for same-sex marriages could create a number of legal issues for same-sex couples here. If you would like to talk to an attorney about what you should do to protect yourself and take advantage of the new law, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Monday, October 6, 2014
BREAKING NEWS: Same-Sex Marriage Legal in Virginia
Hi all - this is not a regular blog post. As many of you may know, the US Supreme Court today denied cert. (i.e. refused to hear) in a number of same-sex marriage cases, including one involving Virginia. This means the Fourth Circuit's ruling mandating same-sex marriage in Virginia is in force, and same-sex marriage is now legal in Virginia.
This is only step one for same-sex Virginia couples, however. Step two is the actual issuance of marriage licenses. Most counties, including Fairfax, are awaiting the issuance of the "mandate" from the Fourth Circuit which officially effectuates the Fourth Circuit's ruling. That is expected to come at some point today. Many counties had prepared same-sex marriage licenses prior to the Supreme Court's stay of the Fourth Circuit ruling on August 20th, and as a result, those counties have the licenses ready to go. This means I expect the first same-sex marriage licenses in Virginia will be issued later today. Attorney General Mark Herring has stated that he has the same expectation.
Those of you in Fairfax County can follow Fairfax County's license issuance status on twitter using the handle @ffxcircuitcourt.
I will likely have a blog post about some of the legal implications of this ruling later this week.
This is only step one for same-sex Virginia couples, however. Step two is the actual issuance of marriage licenses. Most counties, including Fairfax, are awaiting the issuance of the "mandate" from the Fourth Circuit which officially effectuates the Fourth Circuit's ruling. That is expected to come at some point today. Many counties had prepared same-sex marriage licenses prior to the Supreme Court's stay of the Fourth Circuit ruling on August 20th, and as a result, those counties have the licenses ready to go. This means I expect the first same-sex marriage licenses in Virginia will be issued later today. Attorney General Mark Herring has stated that he has the same expectation.
Those of you in Fairfax County can follow Fairfax County's license issuance status on twitter using the handle @ffxcircuitcourt.
I will likely have a blog post about some of the legal implications of this ruling later this week.
Thursday, October 2, 2014
No Post this week
Hi all. Having just returned from vacation yesterday, I'm still overwhelmed with work that piled up while I was gone. As a result, I can't spend the time I'd like to on a post, and I don't like to make a post if I am not satisfied with its quality. As a result, I'm afraid there won't be a blog post this week.
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