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 apply only to the Commonwealth of Virginia.
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog. Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner. Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).
"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"
This is a question I get asked a lot in some form or another. If your ultimate goal is to simply get out of your lease, both approaches present problems. This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating. This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem. On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.
On balance, you're probably better off going with the 21/30 notice if lease termination is your goal. This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months. Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.
At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed. A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.
"I fell on hard times and was no longer able to afford my rent. Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me. Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"
Talk to a lawyer, immediately. Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession. This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard. If they don't agree, however, you may have a problem.
Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more. However, there is a big exception.
First, you need to figure out whether or not your lease is covered by the VRLTA. If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck. You would be better off holding on to the money to help you move. If your lease is under the VRLTA, however, you can make the payment to the leasing office. From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation. If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction. If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid. If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.
"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant. What about if you are undocumented?"
The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice. As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce. As a result, yes, you absolutely may file for divorce even if you are here illegally. That being said, you can expect some obstacles. First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally. Second, our trials are public record. If you are trying to remain low key, going to court is not a great way to do this.
In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.
"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support. Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"
Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married. Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery). If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery. This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.
Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating. But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life. I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married. So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.
That being said, a "relationship" does not have to equal "sex." As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case. It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context. If you can keep your pants on until you're divorced, you should be ok.
Conclusion
As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today. You can expect a couple more of these in the next month or two. If you need further assistance regarding any issue raised today, you should 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!
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