As always, before reading this 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.
Update: Some of the information contained in this blog post is outdated due to changes in the law. Please review the 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
I can say over and over again that family law in general, and divorce law in particular, is too complicated for most people to go it alone. That you really should have an attorney to represent you in the divorce process. That the cost of an attorney is generally worth it, even in "simple" cases. Yet, time and again, we have clients walk in our doors who represented themselves for some or all of their divorces, and now want us to clean up the messes they made.
With that in mind, knowing that at least some of you still won't hire an attorney and will try to do it yourself, in today's blog post I will discuss five of the biggest legal mistakes people make in their divorce cases that I've seen, many of which cannot be fixed or undone after they've happened. Please read and take heed.
1. Agreeing to pay indefinite spousal support without a modification mechanism.
This is by far the most common mistake I see that people have made for which there is absolutely nothing I can do to fix it. I deal with many people who understand that, when things change, child support can be modified, even when the child support is fixed by a signed agreement. What many people don't realize, however, is that the same is not true of spousal support.
The Virginia Code contains a provision stating that when two parties to a divorce sign a spousal support agreement, the court is prohibited from ordering anything contrary to that agreement. As a result, any spousal support agreement you sign is permanently binding on the court. This means that, unless your agreement itself spells out how and when spousal support can be modified, the spousal support can never be modified without the other side agreeing to that modification.
This is important to remember, because an amount that sounds reasonable for you to pay now may not be so reasonable when you're sick, disabled, retired, laid off, or your spouse suddenly hits the $20 million lotto jackpot - but if you signed a spousal support agreement without a built in modification mechanism, then none of that matters, you're still stuck paying, and if you can't, then you could end up found in contempt of court and find yourself in jail.
This is why I've often told clients that if they are going to pay support indefinitely, they're better off getting that ordered by a court than they are agreeing to it - since court ordered spousal support can be modified. So please, whatever you do, do not sign an agreement that commits you to pay a certain amount of spousal support without a guaranteed end date or a modification mechanism.
2. Agreeing to pay child support for your adult child without a modification mechanism.
Your love and care for your child doesn't end when that child turns 18, so for many parents, there is a gut instinct that says their support shouldn't end then either. So, while Virginia law terminates child support at age 18 (or, if the child is still living at home after turning 18 and is a full time high school student, then the earlier of turning 19 or graduating from high school), many parents agree to support their child past age 18 - with frequent termination dates I see being age 21, 22, or graduation from college.
While this is an admirable choice for non-custodial parents to make, the courts no longer view this support as "child support." Once the child is no longer an age where the court can order support, all the protective mechanisms that kick in for court ordered child support goes away, including the court's power to modify support. As a result, once the child reaches the age where the court can no longer order support, the agreement governs the support. This means that if the child support was ever modified, it automatically reverts back to what it was set at in the agreement, and becomes unmodifiable, much like agreed spousal support.
And, like agreed spousal support, the way around this rule is to build in a modification mechanism into the agreement. The most common one I use is "Upon the child reaching the age of majority, child support shall remain the same as it was for the last payment due prior to the child's majority, and shall be modifiable in the same manner as if the child were still a minor." Include that in the agreement, and you're golden, but otherwise you can end up with some very wacky results.
3. Not taking action to protect marital assets.
I'm always surprised to discover how much people think they know about divorce law vs. how much they actually know. Rarely is this gap greater than it is in the field of post-separation use of marital funds. I've had multiple clients walk in the door saying they discovered their spouse had spent x huge sum of dollars of jointly owned funds since separating, and asking me to get it back. Here's the thing - the Court of Appeals says not so fast.
Under Virginia Law there are two types of post-separation uses of marital funds - proper purposes and waste. When funds are used for proper purposes, the money is gone. When they are wasted, then the person who wasted those funds must reimburse the "marital estate." Note, however, there's no middle ground. There's no "unfair" or "uneven" or "just used for one party's benefit." If money is used for a proper purpose, even if it solely benefits one party, it's gone, and you cannot get it back.
So, what constitutes a "proper purpose"? This is literally everything except what one would reasonably call waste (solely unnecessary expenses). According to the Court of Appeals, "proper purposes" include things like rent, the mortgage, groceries, other living expenses, a child's school tuition (even private school and college tuition), and even paying your own attorneys' fees. The appellate opinions on this are so strong that many attorneys, myself included, will often advise clients with no income or funds of their own to take some of the marital funds before they separate to live off of until a support arrangement can be set up.
There are actions you can take, however, to prevent this from happening. You can get into court pretty quickly to get a judge to freeze marital accounts. Now, if your spouse earns a lot less than you, you might get ordered to pay some support in the meantime, so you have to calculate if that is a risk you are willing to take - but you do need to understand that if you don't take steps to protect your marital assets, they could be taken, and there could be nothing you can do about it once they are gone.
4. Failed to object to an appealable order.
As an attorney who does handle family law appeals, every now and then someone walks in my door to appeal an order they had lost on in the trial court while representing themselves. To date, every single person in this situation who has walked in my door has shown me a final order in which they did not list any objections, and then their time to file a motion to reconsider has passed.
To appeal a case, you must show the Court of Appeals that you objected to the order at the time it was entered in a manner sufficient to allow the trial court to fix its own error before you appeal. This can be done in two ways - either by listing your objection on the order itself, or by filing and getting a ruling on a motion to reconsider. If you fail to object on the order itself, anything you cover in a motion to reconsider which has been denied will generally be accepted by the appellate courts, but remember that once 21 days from entry of the final order have passed, the court loses its jurisdiction to rule on the motion to reconsider, so unless a suspending order is entered, if that time runs out without a ruling on the motion, you're out of luck. As a result, by far the safest bet is objecting on the order itself.
Objecting on the order is fairly easy. With rare exception, you are given the option to "endorse" every order - this is where you sign at the end of the order indicating that you've read it. Above your name, there will likely appear the word "Seen." The simplest way to object is to write in there "Seen and objected to because [list of what you object to and why.]" While saying "Seen and objected to" on its own is not sufficient, it is sufficient, if you have nothing else to add, to say "Seen and objected to for the reasons stated in open court." However, no matter how good your case is for appeal, if you have no objection and no motion to reconsider ruling, you likely have no appeal.
5. Ignoring discovery.
Once when I was about four months in to my current job, I had a potential client walk in the door to ask for representation at his divorce trial a month later. He had been representing himself to that point, so I asked to see discovery. When I dug in, I found he'd never sent discovery requests to the other side (it was now too late), and not only had he failed to respond to their requests, but an order had been entered forbidding him from presenting any evidence at all at trial. Needless to say, at that point, there was little good my representation is going to do.
Discovery is serious and ignoring it has serious consequences. Failing to respond to the other side's discovery requests and get you hit hard with court sanctions. Failing to make discovery requests of your own can leave you with absolutely nothing to go on in court. In short, ignoring discovery is practically just giving away your whole case.
There's not much I can add to this one but this occurs far more often than you think.
Conclusion
If you're getting divorced, get a lawyer. There are far too many legal pitfalls and problems for most people to handle on their own. If you don't, however, please at the very least remember these big mistakes I see all the time. Obviously these aren't the only mistakes I see, but these are perhaps the ones that are the combination of most common and most damaging. If you'd like to consider hiring an attorney to help you avoid these mistakes (or try to fix the ones you've already made), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (although I would advise you to review my initial consultation policy first). Our initial consultations are free for up to half an hour!
Friday, January 29, 2016
Friday, January 15, 2016
Annulments in Virginia - A Brief Primer
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world. Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with. As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).
In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments. In today's post, I will do a very brief primer on what Virginia law is regarding annulments.
Advantages of Annulment vs. Divorce
Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get? Well, annulments do offer several advantages. Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order. Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place. Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.
Void vs. Voidable Marriages
Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages. In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into. In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry. Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry. A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem. A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.
So, what kinds of invalid marriages are void and what kinds are voidable? The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:
Some examples of invalid marriages that are merely voidable are:
So, the most common form of annulment we see is a claim of fraud. Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth. Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.
If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).
Cohabitation and Two Year Marriage Rule
After all of that, however, we get to a big catch. For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years. Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.
This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.
Conclusion
Annulments are an ancient element of family law that is rarely available and even more rarely useful today. Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while. If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do). Our initial consultations are free for up to half an hour!
Introduction
As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world. Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with. As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).
In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments. In today's post, I will do a very brief primer on what Virginia law is regarding annulments.
Advantages of Annulment vs. Divorce
Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get? Well, annulments do offer several advantages. Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order. Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place. Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.
Void vs. Voidable Marriages
Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages. In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into. In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry. Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry. A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem. A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.
So, what kinds of invalid marriages are void and what kinds are voidable? The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:
- Bigamous marriages;
- Incestuous marriages;
- Marriages where either party is under 18 without consent of their parents;
- Marriages where either party is under 16 (with an exception for pregnancy).
Some examples of invalid marriages that are merely voidable are:
- Marriage based on some form of fraud;
- Marriage involving at least one party that lacked capacity to consent;
- Marriage where one party was impotent at time of marriage;
- Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
- Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
- Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
- Marriage where either party had ever been a prostitute without the other's knowledge;
- Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).
So, the most common form of annulment we see is a claim of fraud. Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth. Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.
If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).
Cohabitation and Two Year Marriage Rule
After all of that, however, we get to a big catch. For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years. Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.
This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.
Conclusion
Annulments are an ancient element of family law that is rarely available and even more rarely useful today. Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while. If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do). Our initial consultations are free for up to half an hour!
Friday, January 1, 2016
New Year, Updates on the Blog
It's the Friday two weeks after my last blog post, so I'm due for another, but as it is New Year's Day and I have been off work today, I cannot say the inspiration for a post is flowing. As a result, I'm going to use this post just to give some updates about this blog.
First, after receiving about 40 requests for initial consultations over the course of the past several months from people outside of the geographic area I handle cases in, I decided it was time to add my initial consultation policy to this blog, so it is now linked at the top of the blog with my disclaimer, comment policy, etc. This policy outlines what conditions must be met in order for you to meet with me for a free initial consultation (the key one being the physical location of your case), while also discussing what to do if you want to discuss a legal issue with me but don't qualify for an initial consultation. I'd recommend anyone who'd like to discuss an issue with me to read this policy first.
Second, my second child is due to be born in March. As this blog was started after I'd already returned to work following the birth of my first child, I have no base knowledge as to how this is going to affect my posting schedule. Needless to say, however, I would expect that from around February until maybe May or so, you can expect some erratic posting.
Third, as always, I remain open to suggested blog topics from readers, and to other attorneys or related professionals who wish to do a guest post. Just shoot me an e-mail at SLeven@thebaldwinlawfirm.com.
Fourth, I've had a few people reach out to me and ask some questions about the firm I work for - as you can find elsewhere in this blog, I am employed by The Baldwin Law Firm. My boss, Roy Baldwin, has been practicing law in Northern Virginia since the 1970's. I worked for the firm the summer after my first year of law school, then began full time in December of 2010. At that time there was another attorney working at the firm, but he left in February of 2011, so for nearly two years thereafter, it was just me and Mr. Baldwin as a two attorney firm. In February of 2013, a new associate was hired while I was on paternity leave, and then in November of 2013, Mr. Baldwin's son, Nate, joined the firm, making us a four attorney firm (a big shock to my system after having been one of two for so long). In February of 2015, our other associate moved on to open the first Northern Virginia office of a national family law firm, leaving us as a three attorney firm, which is where I anticipate we will stay for some time. You can learn a lot more about us at our website: http://www.thebaldwinlawfirm.com.
Fifth and finally, this one is just for fun - I've mentioned a few times that the "wheels of justice turn slowly" and that some cases truly can drag on for ages. I've had two people write to me and ask me what the longest-lasting case I've been involved with in my career to date is. In reality, that's a complicated question for an attorney who does family law - cases can go on for years and years in many instances since things like custody and support can routinely be changed. So, if you're talking about "the longest case" in the sense of the same people fighting about the same basic issues, then there is a case where I assisted in handling a custody dispute in the summer after my first year of law school (summer of 2008) when I had my summer job at my current firm - and those two parents are still fighting over custody and support for their kids to this day with the most recent trial having just been held four months ago.
If you're talking about "the longest case" in the sense of from when a particular complaint or motion was filed until the trial happened and that particular complaint or motion was resolved (so, no post-trial modifications involved), then there was a case I took a few counties away in which DCSE sued my client for alleged missed child support payments (he claimed he had paid in full), and the combination of some complicated issues and a loaded court docket caused this one to go quite long. Specifically, the case was filed in November of 2012, and the actual trial did not occur until September of 2014, so that case went nearly two years without there being any appeals or post-trial issues involved.
And that's all I have to start off the new year. I'll see you all again in two weeks!
First, after receiving about 40 requests for initial consultations over the course of the past several months from people outside of the geographic area I handle cases in, I decided it was time to add my initial consultation policy to this blog, so it is now linked at the top of the blog with my disclaimer, comment policy, etc. This policy outlines what conditions must be met in order for you to meet with me for a free initial consultation (the key one being the physical location of your case), while also discussing what to do if you want to discuss a legal issue with me but don't qualify for an initial consultation. I'd recommend anyone who'd like to discuss an issue with me to read this policy first.
Second, my second child is due to be born in March. As this blog was started after I'd already returned to work following the birth of my first child, I have no base knowledge as to how this is going to affect my posting schedule. Needless to say, however, I would expect that from around February until maybe May or so, you can expect some erratic posting.
Third, as always, I remain open to suggested blog topics from readers, and to other attorneys or related professionals who wish to do a guest post. Just shoot me an e-mail at SLeven@thebaldwinlawfirm.com.
Fourth, I've had a few people reach out to me and ask some questions about the firm I work for - as you can find elsewhere in this blog, I am employed by The Baldwin Law Firm. My boss, Roy Baldwin, has been practicing law in Northern Virginia since the 1970's. I worked for the firm the summer after my first year of law school, then began full time in December of 2010. At that time there was another attorney working at the firm, but he left in February of 2011, so for nearly two years thereafter, it was just me and Mr. Baldwin as a two attorney firm. In February of 2013, a new associate was hired while I was on paternity leave, and then in November of 2013, Mr. Baldwin's son, Nate, joined the firm, making us a four attorney firm (a big shock to my system after having been one of two for so long). In February of 2015, our other associate moved on to open the first Northern Virginia office of a national family law firm, leaving us as a three attorney firm, which is where I anticipate we will stay for some time. You can learn a lot more about us at our website: http://www.thebaldwinlawfirm.com.
Fifth and finally, this one is just for fun - I've mentioned a few times that the "wheels of justice turn slowly" and that some cases truly can drag on for ages. I've had two people write to me and ask me what the longest-lasting case I've been involved with in my career to date is. In reality, that's a complicated question for an attorney who does family law - cases can go on for years and years in many instances since things like custody and support can routinely be changed. So, if you're talking about "the longest case" in the sense of the same people fighting about the same basic issues, then there is a case where I assisted in handling a custody dispute in the summer after my first year of law school (summer of 2008) when I had my summer job at my current firm - and those two parents are still fighting over custody and support for their kids to this day with the most recent trial having just been held four months ago.
If you're talking about "the longest case" in the sense of from when a particular complaint or motion was filed until the trial happened and that particular complaint or motion was resolved (so, no post-trial modifications involved), then there was a case I took a few counties away in which DCSE sued my client for alleged missed child support payments (he claimed he had paid in full), and the combination of some complicated issues and a loaded court docket caused this one to go quite long. Specifically, the case was filed in November of 2012, and the actual trial did not occur until September of 2014, so that case went nearly two years without there being any appeals or post-trial issues involved.
And that's all I have to start off the new year. I'll see you all again in two weeks!
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