Friday, February 26, 2016

More Virginia Divorce Uh-Ohs: 3 More Big Legal Mistakes You Can Make in a Divorce

As always, before reading my post, please review my disclaimer by clicking on the link above or clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces.  I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is.  It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often.  Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.

1.  Failing to request spousal support in your pleadings

If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality?  The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.

It is a basic rule in law that in court, you cannot get what you do not ask for.  Moreover, the way that you ask for something is in a written document called a "pleading."  "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint."  When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial.  As a result, in order to get something at trial, you must have asked for it in your initiating pleading.

In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support.  As a result, spousal support must be specifically requested.  If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is.  As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).

Fortunately, if you fail to do this, you will likely be able to correct it.  Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings.  Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away).  I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue).  Nonetheless, if you discover you have this issue, you should move to fix it ASAP.

2.  Failing to request a determination of spousal support when there is a J&DR Order

This issue is related to the first, but on the flip side.  The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court.  Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.

Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite.  It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce).  Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce.  For more about J&DR spousal support, see my blog post on spousal support.

Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order.  In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order.  If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.

Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order.  Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown.  So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time.  Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.

3.  Failing to include provisions in a written order

For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders.  Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it.  This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.

This also sometimes creates problems for parties that are caught unaware.  Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders."  In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down.  I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it.  The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.

Now, there is a way to fix this.  If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision.  Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision.  Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling.  Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.

Conclusion

Not all mistakes are immediately fatal in a divorce.  Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time.  Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce.  If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, 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.

Wednesday, February 17, 2016

Virginia and US Supreme Court Vacancy Crises - The Basics

As always, before reading my post, please review my disclaimer by clicking the link above or by clicking on this link.

Introduction

The other day I had someone ask me what I thought about the "vacancy crisis" on the Supreme Court.  My response was "which one?"  See, while you probably already know about the US Supreme Court having a bit of a vacancy crisis arising from the death of Justice Scalia and no one really knowing when or if that vacancy will be filled, in Virginia our own Supreme Court has been dealing with a vacancy crisis of its own since last summer.  Neither seem likely to end soon, and both have gotten me a good number of questions.  So, with this post, I'll give a basic breakdown of what the issues are in each vacancy and where I see them likely to be headed.

Background on the Virginia Supreme Court Vacancy

Last summer, Virginia Supreme Court Justice Leroy Millette announced his retirement.  Now, in Virginia, judges are elected by the General Assembly without any input from the Governor.  However, when the General Assembly is not in session, the Governor can appoint someone who will sit on the bench until 30 days after the next session of the General Assembly begins.

Last summer, the Republican-controlled General Assembly was not in session, so the Democratic Governor (Terry McAuliffe) decided he would make a recess appointment, as had been done 31 times previously for the Virginia Supreme Court over the past 100 years.  All 31 previous times, even when the Governor and General Assembly have been of different parties, the Governor's choice has then been elected to a full term on the Court, so Governor McAuliffe took this appointment very seriously.  He reached out to the bar associations and members of the General Assembly Courts of Justice Committees for recommendations.  Finally, he settled on Fairfax County Circuit Court Judge Jane Marum Roush - a judge recommended to him by Dave Albo, the Republican Chair of the House Courts of Justice Committee, and unanimously supported by the major state bar associations due to fairly impeccable credentials.  With Del. Albo standing next to them, Governor McAuliffe announced his pick of Judge Roush shortly thereafter, and she ascended to the Supreme Court (this was also personally exciting for me, as I have appeared in front of Justice Roush more times than any other judge in my legal career to date).

Well, the Republican leadership in the General Assembly pitched a fit.  They were mad that Governor McAuliffe spoke to the Courts of Justice Committees, instead of the actual Republican leadership (Speaker of the House and Senate Majority Leader) something that some previous governors had done, but others had not.  The Republican leadership openly admitted that Justice Roush was well qualified for the position, but due to this alleged "breach in protocol," they announced that, for the first time in more than 100 years, they would kick the Governor's choice off the bench and put forward their own nominee.

In August, the General Assembly reconvened for a special session, but in the Senate, where Republicans have only a 21-19 majority (and the Lieutenant Governor, who casts the tie-breaking vote, is a Democrat), all did not go according to plan.  Retiring Republican Senator John Watkins called the Republican Party out on its shenanigans, and refused to support their efforts to advance their own nominee.  As a result, no new justice was named.  The Senate then, along the same 20-20 vote with the tie broken by the Lieutenant Governor, voted to adjourn their session, without the consent of the House of Delegates.  This move was of questionable constitutionality, since the Virginia Constitution forbids one house of the General Assembly from adjourning without the consent of the other, but the syntax of the constitutional provision makes it very unclear if that requirement applies to special sessions or only regular sessions.  As a result, the Senate determined on its own that its actions were constitutional, the (Democratic) Attorney General agreed, and there was not much the House of Delegates could do.  As a result of this adjournment, once the 30 days had elapsed ending Justice Roush's term, Governor McAuliffe re-appointed her.

Fast forward to the current session, Republicans still hold a 21-19 majority in the Senate, and they have dug in their heels.  The Speaker of the House of Delegates declared that Republicans can never support Roush now because she a) lobbied legislators to keep her job, and b) accepted the re-appointment that Republicans claim was unconstitutional.  With Senator Watkins out of the Senate, most observers considered Justice Roush doomed, but then freshman Republican Senator Glen Sturtevant, the very Senator who was elected to Senator Watkins' former seat, announced that he himself would not support the Republican effort to remove Roush.  Then, a Democratic Senator, Louise Lucas, announced she would support that effort, only to change her mind a few hours later after meeting with Governor McAuliffe.

So, where are we now?  The thirty days on the current session has expired, Justice Roush is now off the Supreme Court bench, but the election of a new justice any time soon seems unlikely.  There are about thirty days left in the General Assembly session when it will end automatically, and require a two thirds majority of each house to extend (not likely).  Governor McAuliffe has already announced that if there remains a vacancy at that time, he will appoint Justice Roush yet again.

Background on the US Supreme Court Vacancy

This vacancy has much less back story required than the Virginia vacancy.  On February 13th, Justice Antonin Scalia passed away in his sleep.  Scalia was seen as the mouthpiece of the conservative wing of the Supreme Court.  However, the Constitution authorizes the President to appoint Supreme Court Justices, who must then be approved by a majority of the US Senate (interestingly enough, the President can also appoint someone who automatically takes the bench until the next session of Congress, so in this case until 2017, if the Senate is in recess, as it is this week, but President Obama has opted to not use that power, which has not been used to put a Justice on the US Supreme Court since the 1950's).

With Barack Obama sitting as President, most expect he would nominate a liberal justice to replace the conservative Scalia.  As a result, many senators in the Republican-controlled Senate have already said they will refuse to even allow a vote on a President Obama nominee, insisting that the next president should pick.  This would create a vacancy that could last an unprecedented 340+ days.  As of now, Obama has not yet announced a nominee, but has declared he will put one forward.

Implications of the Vacancies

While both courts have a vacancy at the moment, this means each court has an even number of justices (6 in Virginia out of the usual 7, and 8 in the US Supreme Court out of the usual 9), however, the impact is much more profound in the US Supreme Court than in Virginia.  This is for a couple of reasons.

First of all, Virginia has the concept of "senior justices."  These are justices who have reached a certain age and number of years of service on the court, and have retired from "active duty" on the court.  There are currently four senior justices.  In any given case, where there are less than seven justices available (traditionally due to a justice being sick, unavailable, or recused from a case, but the presence of a vacancy can also be a reason), a senior justice can be called on to sit on the case, and cast a vote and write opinions just as if he or she was still an active justice.  As a result, it is unlikely that the Virginia Supreme Court will face any split decisions as a result of this vacancy.  Moreover, from a political standpoint, the Virginia Supreme Court has had a conservative/Republican majority of either 4 or 5 for some time - Justice Millette was seen as a moderately liberal/Democratic justice, as has been Justice Roush.  As a result, the vacancy is unlikely to change the balance of power on the Virginia Supreme Court.  Additionally, the Virginia Supreme Court has much fewer "political" cases than the US Supreme Court, so divided cases, or at least ideologically divided cases, in the Virginia Supreme Court are actually fairly rare.

The US Supreme Court, however, is quite different.  The US Supreme Court has had since the late 1980's and early 1990's a 5-4 conservative/Republican majority (although Justice Kennedy, a part of that majority, at times votes with the court's liberal wing).  Justice Scalia's death not only leaves the court with 8 justices, but it leaves the court with 4 liberal justices and 4 conservative justices.  While the US Court system does have the concept of "senior justices" and there are presently three of them (former Justices O'Connor, Souter and Stevens), senior justices can only sit on Circuit Court of Appeals panels, not on the Supreme Court.  As a result, it is very probable that as long as the vacancy remains, we could have a slew of 4-4 decisions.  In the case of a tied decision in the Supreme Court, the lower court decision stands, but is not binding precedent on the rest of the country.  As a result, major hot-button constitutional issues likely cannot be decided until the vacancy is filled.

How I see things playing out

Setting aside what I'd like to happen or what I think should happen, I honestly don't foresee either of these crises resolving any time soon.  The Republicans clearly have the power to block any Obama nominee, and the Republicans in the Virginia General Assembly have basically backed themselves into a corner on Justice Roush.

My prediction in Virginia is that the disagreement will not resolve this session and the session will end with a vacancy, at which time Governor McAuliffe will re-appoint Justice Roush.  At some point, I believe cooler heads will prevail and Justice Roush will be elected to a full term on the court, although one possible way out for everyone would be for President Obama to nominate Justice Roush to a seat on the federal 4th Circuit, which several people have suggested.  Regardless, I expect that by this time next year, this crisis will have been resolved, likely with Justice Roush serving a full term on the Virginia Supreme Court, but I do not anticipate that to happen this session.

My prediction in the US Supreme Court is that President Obama will nominate DC Circuit Court Judge Sri Srinivasan.  Judge Srinivasan is probably the most qualified "democratic" jurist in the country, and in a normal year would be a largely non-controversial pick.  Given that 2016 is an election year, however, and that Judge Srinivasan has the potential to tip the balance of the Supreme Court, I expect the Republicans in the Senate to still refuse to give him a vote.  This will become an issue in the election.  Regardless, I have trouble seeing anyone picked by Barack Obama being confirmed to this seat, and I expect that a year from now, the US Supreme Court will still have a vacancy, and the new president's pick will be going through the confirmation process.