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
I believe I have mentioned before that one of my favorite parts of being a lawyer is that it keeps me on my toes because the law is constantly changing. Everything I've written in the past could well prove false in the future with a stroke of the Governor's pen or a new appellate opinion. While caselaw is its own monster, late April and early May is an interesting time to be a lawyer in Virginia - at this point, we know all of the new laws that will take effect this year, but they won't take effect until July 1st (except for emergency laws), so we have some time to get ready.
As I did in 2014 and 2015, I have reviewed the new laws being implemented this year that I consider relevant to this blog, and will summarize them below. As noted, all laws listed here do not go into effect until July 1st.
Strengthening Protective Orders
One of the major legislative compromises of this session was a deal reached between Governor McAuliffe and the Republicans in the legislature regarding guns. McAuliffe agreed to allow a finding of Attorney General Herring which ended Virginia's reciprocity with most states for concealed carry permits to be reversed in exchange for the criminalization of possessing a firearm when a family abuse protective order is entered against you. Under HB 1391 and SB 49, it is now going to be a felony to possess a firearm if a family abuse permanent protective order has been entered against you (previously it was just a misdemeanor to buy or transport a firearm while under a permanent protective order).
Additionally, HB 610 now makes it a felony to stalk someone who holds a protective order against you, or to assault and batter such a person if the assault and battery caused any bodily injury. Previously it was only a felony of the assault caused "serious bodily injury."
Finally, HB 1087 and SB 323 makes it a felony if you violate a protective order while possessing a firearm (it is typically only a misdemeanor to violate a protective order and there was previously no enhancement for using a firearm while violating one). While this would seem unnecessarily cumulative with HB 1391 and SB 49, it's actually not, because HB 1087 and SB 323 apply to all protective orders, including preliminary protective orders, emergency protective orders, and non-family abuse protective orders, while HB 1391 and SB 49 apply only to final/permanent family abuse protective orders.
Child and Spousal Support for Support Prisoners
One of the oddities of support law is that the harshest tool the court has available for someone who refuses to pay support is sending them to jail - but sending them to jail will typically prevent them from making any support payments at all. HB 428 orders any city or county with a prisoner who is in a prison work program to pay between $20 and $40 per week to the Department of Social Services for them to provide as support to the spouse and/or children of the prisoners. Obviously that's not a whole lot of support, but when you're usually getting nothing, something is still an improvement.
Legal Age for Marriage Changed
In Virginia, the law has been for some time that the legal age for marriage is 18 without parental consent, 16 with parental consent, and, in some circumstances involving pregnancy, can be as young as 14. However, with the modern awareness that some parents don't always act in their child's best interests, and with an increasing amount of concern about coerced or forced marriage, there has been a growing consensus towards getting rid of "parental consent" marriages that could really be "parental coercion" marriages. HB 703 now sets a uniform age of marriage in Virginia at 18, and parental consent is no longer involved. A minor under the age of 18 may petition a court for emancipation in order to get married, in which case a judge must make a series of findings, including that there is no parental coercion (or any other kind of coercion) involved and that the minor is mature enough to make this major decision.
Spousal Support when Divorce Denied
Just a couple months ago, I mentioned that one of the major divorce uh-ohs is not requesting spousal support in your pleadings, and I noted that you should include such a request in all of your initial pleadings, in case one gets struck. This was based on a case from 2014 where a woman had her complaint for divorce struck when she failed to prove her grounds of divorce, and then the divorce was granted based on her husband's counter-claim, where he did prove his ground. The woman requested spousal support in her complaint, but not in her answer to the husband's counter-claim, and the husband did not say anything about spousal support in any of his pleadings. The Court of Appeals held that since the woman failed to prove her grounds of divorce and her complaint was struck, her entire complaint was gone, including the request for spousal support, and she was stuck with nothing.
The General Assembly decided this was unfair and has now enacted SB 71. SB 71 provides that if a party fails to prove their ground of divorce and their complaint or counter-complaint for divorce gets struck as a result, their request for spousal support still survives. It's still a best practice to request spousal support in all of your initial pleadings, but if you make the mistake the poor woman in 2014 did, you now have an avenue for relief.
More Spousal Support Changes
Another recent case of some controversy is one from 2013 where a husband was ordered to pay pendente lite spousal support and he did so by using funds that were unquestionably marital funds. As a result, when it came time for the trial in the case, he had greatly depleted the marital funds available for division, while just tucking away his post-separation earnings to build up a large stockpile of separate money. The Court of Appeals held that this was acceptable under Virginia Law, and he was in no way obligated to pay the pendente lite support using separate money without a court order saying so. SB 70 now reverses that equation - a party ordered to pay pendente lite spousal support (or child support) must do so using post-separation earnings unless the court orders otherwise.
Additionally, the factors that are used to determine spousal support have long had an oddity - the law required that the court consider what led to the breakup of the marriage when deciding whether or not to award spousal support at all, but once the decision has been made to award support, then the cause of the breakup of the marriage is not one of the factors the court is to consider when setting the amount and duration of the support award. Now, practically speaking, these things still got into the factors because they were often treated as either "negative non-monetary contributions to the well-being of the family" or "such other factors" as the court sees proper to consider - two things that are properly part of the statutory factors. However, HB 668 has now expressly made whatever leads to the breakup of the marriage a factor for the court to consider when setting the amount and duration of spousal support.
Landlords Can't Kick Tenants Out in a Tenant's Assertion
The first time I ever took a tenant's assertion to trial, the landlord's attorney caught me off-guard by trying to turn one of the tenant's tools into a double-edged sword. My client was seeking relief in the form of a rent abatement, future escrow payments, and other such remedies, but one of the remedies available in a tenant's assertion is the power of the judge to terminate the lease and order possession returned to the landlord. This is a tool often used by tenants who both want a rent abatement and to just get out of the property because the relationship with the landlord has broken down so badly - but in this case, my client didn't want to leave for many reasons. The landlord, however, knowing there was still almost a year left on my client's lease, thought my client was too much of a trouble maker (she was suing him, after all) and wanted her out. In my case, the judge felt this demand was ridiculous - my client was entitled to the services she'd bargained and contracted for - but I later learned that not all judges felt this way, and this was a common tactic of landlords to get rid of troublesome tenants.
HB 1209 and SB 377 finally take this power away from landlords. The law is now being changed such that the lease termination remedy of a tenant's assertion can only be invoked by the court if it was requested by the tenant and possession can only be ordered returned to a landlord in accordance with an unlawful detainer action. This is one more step in the very long process to try to equalize the power between landlords and tenants in Virginia courts - although some would say there's still a long way to go.
Conclusion
To me, there's little more exciting than the routine changes in the law I practice. But it is also my job, not yours, to keep track of these laws. If you think that your legal situation may have changed because of a change in law, you should consider talking to an attorney. If your situation is in a field I practice, review my initial consult policy, then call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your consultation. Our initial consultations are free for up to half an hour!
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