Not Paying for the Rest of Your Life - Terminating Spousal Support in Virginia

As always, before reading this blog 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

If you've been ordered to pay spousal support (formerly known as "alimony") as a result of your divorce in Virginia, you probably have one question - when can you stop?  The answer to that question is somewhat complicated, and depends in part on whether your support was agreed to or court ordered, whether or not the reason you want payments to stop is "self-executing," and whether there are any lingering issues.

In this blog post, I am going to do a basic overview of the law regarding the termination of spousal support.  Please note that I am referring to spousal support ordered as part of a divorce (either by the court or by contract) - not spousal support ordered in the J&DR Court, Separate Maintenance, or pendente lite spousal support (for more on the different types of spousal support, see my blog post on the subject).

What can cause spousal support to be terminated?

So, to start off, you might want to know in what situations existing spousal support can be terminated.  There are, in fact, seven situations in which ongoing spousal support terminates:

1. The support payor dies;
2. The support payee dies;
3. The support payee remarries;
4. The support payee cohabits with another "in a relationship analogous to marriage" for more than one year;
5. If support was ordered for a defined duration, the defined duration ends;
6. There has been a "material change of circumstances" since the original support order and the court orders support eliminated; or
7. Another condition set in the parties' agreement has occurred.

So, where does all of this come from?  Numbers 1 through 4 are found in Virginia Code Section 20-109.  Number 5 is a natural result of a court being authorized to order or the parties being authorized to agree to a defined duration of support.  Number 6 is a result of the court's power to modify support (also found in Code Section 20-109).  Number 7 is a result of parties' power to set support by agreement in a manner the court must honor.

Exceptions to spousal support termination

So, as you might imagine, all of the above have exceptions.  Numbers 1 through 4 can be waived by agreement (note, however, that unlike most issues with spousal support in agreements, waiving numbers 1 through 4 can only be accomplished expressly - such as by saying, for example, "spousal support will not terminate upon remarriage of the payee" - silence, or even saying something like "spousal support cannot be modified or terminated except as stated in this agreement" keeps numbers 1 through 4 in effect).  Number 5, if the support was set by a court order, can be overcome because defined duration support can be extended to a longer duration or to indefinite support if a motion to modify is filed prior to the expiration of the support and the court grants it.  Number 6 is not available for support set by agreement unless the agreement expressly allows for it.  Number 7 is only available in support set by agreement.

One of the terminating conditions has occurred - now what do I do?

So, say you think one of the terminating conditions has occurred - you might be wondering what you do next.  Well, that depends in part on whether or not the termination is what we call "self-executing."  A termination event is self-executing if its occurrence is obvious and indisputable - if there can be no reasonable argument as to whether or not something has occurred.  In the list above, numbers 1, 2, 3 and 5 are always self-executing (so long as they are applicable to your case), while Numbers 4 and 6 are never self-executing.  Number 7 can be self-executing, or it can not be, depending on how the agreement is written.

If you are dealing with a situation that involves self-executing support termination, you are free to simply stop paying when the event occurs.  However, if you are dealing with a situation that is not self-executing, you must file for your termination in court, and continue paying until the court rules you no longer have to.  If you stop paying, even after a terminating event has occurred, if it is not self-executing you can be found in contempt of court and rack up a substantial arrearage (the court can only make the termination date effective the date you filed your motion, no earlier).

Now, I would note that last year we saw a Court of Appeals opinion that reigned in the harshness of the non-self-executing rule, but it was vacated when a motion to rehear was granted, and the parties settled before rehearing, so the Court of Appeals opinion actually is not good law right now and there's no guarantee a different panel of the Court of Appeals would reach the same conclusion (even that panel was a 2-1 decision), so we must assume that the rules regarding non-self-executing terminations remain in effect.

How to file the motion

If you are dealing with a situation that solely involves termination of support (say number 4 above, or one of the conditions laid out for termination in an agreement that isn't self-executing), then you file a "Motion to Reopen and Terminate Spousal Support."  If, however, your reason for wanting support to terminate could also be a reason for wanting it to be reduced if the court determines termination isn't proper (such as in most cases where number 6 above would apply), you should file a "Motion to Reopen and Terminate or Reduce Spousal Support."

Reasons to go to court with self-executing terminations

Now, despite what I said about above self-executing termination events, the reality is there are some situations where you might want to go to court anyways.  First and foremost, if you believe a self-executing termination event has occurred (such as the payee's remarriage) but you are wrong, you could be hit with contempt and a large arrearage.  If you file in court to get an order terminating your support, you'll be protected from that possibility.

That being said, there are a couple other reasons to potentially go to court even with a self-executing termination.  For example, if the reason your support is terminated is because your ex has re-married, you may have a claim to get some of your previously paid support back.  Specifically, Virginia Code Section 20-110 places an affirmative duty on a payee former spouse to tell the spousal support payor if he or she remarries.  If the payee spouse fails to inform you of the remarriage, and as a result you make payments after the remarriage, you are entitled to be reimbursed those payments plus interest, costs and attorneys' fees.

Another reason is that if you ever fell behind on your payments or your ex ever claims that you missed a payment and you and your ex do not agree on how much you still owe, you may want to get a court order terminating your support since it will also establish what arrearage, if any, you owe and how and when it is to be paid.

Conclusion

Terminating spousal support is almost as complicated as establishing it.  Doing it without an attorney can set you up for a whole lot of trouble.  If you are paying spousal support and think it should terminate (or if you are receiving it and your ex has stopped paying improperly), please 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!

Virginia Parental Placement Adoption - When the Families Find Each Other

As always, before reading this post, please review our 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

There are many situations in which an adoption might occur in Virginia - one of them, a step-parent adopting their step-child, I have previously covered on this blog.  However, when most people think of "adoption" they think of the image you see on TV - a family adopting a baby or child completely unrelated to them biologically.  In Virginia, there are three basic forms of what I call "stranger adoption" - parental placement adoption, agency adoption, and foster care adoption.

Agency adoption is probably what most people think of in an adoption.  This is when an agency, either a public agency (such as the state's Department of Social Services) or a private adoption agency, already has custody of the child and the biological parents' custodial rights have already been terminated, and the adoptive parents apply to adopt a child through the agency.  Foster care adoption is a sub-set of agency adoption where a child has been placed in foster care pending his or her adoption or the termination proceedings against his or her biological parents, and then after at least 18 months in the foster parents' home, the foster parents decide they would like to adopt the child.  Parental placement adoption occurs where the birth parents and the adoptive parents find each other, and arrange an adoption without involvement by the state or any agencies.

In today's blog post, I am going to cover some of the basics of how parental placement adoption works in Virginia.

Pros and Cons of Parental Placement

First off, for any set of adoptive parents, the first decision to make is what method to choose for adopting.  Parental placement has several pros and several cons.  To many, the biggest pro is that parental placement adoption is substantially cheaper than agency adoption.  In Northern Virginia, between legal fees and other costs, you can expect to spend between $8,000 to $15,000 on a parental placement adoption.  An agency adoption, on the other hand, can cost you $20,000 or more.

Another pro of parental placement adoptions is that you know a lot more about where the child is coming from - you are much less likely to end up surprised by a child with severe issues than if you adopt from an agency.  Finally, many adoptive parents prefer parental placement adoptions because it allows them to form a relationship with the biological parent(s), and they know this is something the biological parent(s) have chosen, instead of something that has been forced on them.

There are some cons to consider, however.  Perhaps the biggest is that a so-called "closed" adoption (where the biological parents don't know who adopted their child) is virtually impossible - you may not be required to provide those parents any information, but they may well be able to find you since they know who you are to begin with.  Another con is that, unlike in an agency adoption, when you begin the adoption process with a parental placement adoption, the biological parents have not yet lost their parental rights, and they can withdraw their consent without cause at any time up until 7 days after their parental rights are terminated, at which time they would get to take the child back.  No contract promising to let you adopt is legally enforceable in Virginia, so if they change their mind, there is really nothing you can do about it.  If you are uncertain of the biological parent(s)' level of commitment to the process, those 7 days in particular can be nerve-wracking.

Babies vs. Children

As you might expect, the vast majority of parental placement adoptions involve infants.  Usually the biological parents and adoptive parents have met prior to the baby being born and begun to make arrangements.  As a result, I will be talking in the rest of this post under the assumption that the adoption will be of a new-born infant.  However, it will be fairly obvious when something I say is specifically applicable to the adoption of newborns, and the process is the same whether the child is a newborn or not.

Who Should Have an Attorney

Ideally, all parties (the adoptive parents and each biological parent) should have an attorney to guide them through the process.  The rules are complicated, and I cannot hope to get to all of them in this blog post.  This process would be daunting for anyone to go through unrepresented, but the adoptive parents are likely the ones most in need of representation.

Exchange of Funds

Many people feel, reasonably, that if a child is going to be the child of the adoptive parents, those parents should share in some of the costs of caring for that child prior to the adoption.  However, out of a great deal of fear of a market opening up to "sell" children, the exchange of funds between adoptive and biological parents in a parental placement adoption is heavily regulated.  Adoptive parents can only pay for very specific things (some examples include the biological mother's pregnancy-related medical costs, food for the biological mother to eat when she is no longer able to work due to the pregnancy, and the biological parent(s)' attorney's fees).  Any funds given outside of these allowed amounts can cause an entire adoption to fall through.  It is usually best to work out a contract with the biological parents of what you will pay and how.  This contract will be legally enforceable, and can be provided as evidence to the court if questions are later raised of improper payments.

Home Study and Father's Consent

Generally in a parental placement adoption, the first two formal steps to be taken are a home study and obtaining the biological father's consent to the adoption.  This is because if you are adopting a newborn, these two steps can be completed before the child has even been born.  A home study is a process whereby a certified agency will conduct an evaluation of you, your home, and the biological parents to determine if an adoption is proper.  A parental placement adoption cannot be allowed to proceed unless the court that will eventually handle the adoption is provided with a positive home study report.  Additionally, the biological father can consent to a parental placement adoption by signing a simple affidavit that can be prepared by your attorney at any time prior to the child's birth.  If the biological parents are unmarried, this is particularly convenient, because once ten days have passed after the biological father signs the consent, he cannot take it back, and does not have to be further involved in the process at all.

Taking Custody of the Child

The next step is to actually take custody of the child.  If you are not adopting a newborn, this is simple enough - it literally just involves the biological parent giving you the child, and signing a sort of power of attorney that you can show to the child's doctors and school officials while the adoption is pending to show that you now have the child.  For a newborn, this is a little more complicated, as this involves having the hospital release the child to you.  Some hospitals simply refuse to do this, and make the biological mother take the child out of the hospital and hand the child off to the adoptive parents once they are off hospital grounds.  Most hospitals, however, will let the adoptive parents take the child home as long as the biological mother signs a number of waivers.

Juvenile Court Hearing

On the day the child is born, or the day the adoptive parents take custody of the child, a petition can be filed in the local Juvenile and Domestic Relations District Court to conduct what's called a "birth mother's consent hearing."  The court cannot hold the hearing until the child is at least three days old, but it will usually schedule a hearing for pretty shortly thereafter.  As part of the process, the court will appoint a Guardian ad Litem, an attorney whose job it is to represent the child, to ensure the child's interests are protected.  It will be the adoptive parents' responsibility to pay the Guardian ad Litem.

At the hearing, the court will ask the biological mother a number of questions to ensure that she is really, truly consenting to this adoption, that it was not coerced, and that funds have not been paid improperly.  The court will also review the home study report, the biological father's consent form, and ask for the opinion of the Guardian ad Litem, who by the time of the hearing will have interviewed the adoptive parents and the biological mother (and the child if the child is old enough).  Assuming the Guardian ad Litem approves and no issues occur with the biological mother's testimony, the J&DR Court Judge will then sign an Order which formally grants the adoptive parents legal and physical custody of the child, and terminates the biological parents' parental rights.  The biological mother has 7 days from then to withdraw her consent, and if she does not, the order is effectively final.

Circuit Court Petition

Once those 7 days have passed, the biological parents are no longer part of the process.  Now the adoptive parents can file their Petition for Adoption in the local Circuit Court.  There a judge will review the home study report and the order of the J&DR Court, and if everything is in order, the judge will enter what's called an "Interlocutory Order."  This Order grants the adoption on a probationary basis to the adoptive parents.  Thereafter, the same agency that conducted the home study must conduct three "investigative visits" to the home of the adoptive parents to review how they are handling parenthood of the child.  The three visits must be completed within six months of each other, and in most cases are usually conducted once a month for three months.

Once the agency completes its three investigative visits, it prepares and sends to the court a report on its investigation.  Assuming the report is positive, the Circuit Court then has the power to enter the Final Order of Adoption.  The Final Order of Adoption is the final document making the full adoption official, changing the name of the child (if desired by the adoptive parents), and formally making the child the legal child of the adoptive parents.  Once the Final Order of Adoption has been entered, the adoption is over.  As an added bonus, except in very rare and limited circumstances, once the Final Order of Adoption has been on the books for at least 6 months, its validity cannot be challenged by anyone for any reason.

Beware of Emotional Scammers

Just one note of caution - while you may not be able as adoptive parents to give biological parents much money, that doesn't mean there aren't scams out there.  Some people try to scam others out of funds, but most just do it for attention.  In the adoption world, we refer to these people as "emotional scammers."  They just thrive on the attention they get from the hopeful adoptive parents, and most adoptive parents are too hopeful to catch the warning signs (especially since they aren't being asked for any money).  As you can imagine, this is frequently devastating to an adoptive couple, and I always warn my hopeful adoptive parent clients to tell me if anything ever seems off, and to just try not to get their hopes up until they actually have the child in their custody.

Conclusion

A parental placement adoption is a very rewarding way to adopt a child, but it is also replete with procedural pit-falls.  For example, the manner of obtaining the birth father's consent, or negating your requirement to obtain it, can be different depending on whether the birth father is an assumed, acknowledged, or putative father - and this is just one of the many hurdles faced when people try to tackle this kind of adoption alone.  As a result, if you are interested in pursuing a parental placement adoption, I would strongly encourage you to hire an attorney from the outset.  Our firm handles these types of adoptions, and if you are interested in our services you can 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!