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
Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own. It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post. Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.
Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.
What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?
So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing. Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy. If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?
Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid. However, you could take several approaches. You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case. Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed. The first option is much less expensive for you, but also less likely to be accepted. The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.
However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.
My husband left and I have no idea where he is - how do I get divorced?
Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers. The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person. However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").
In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties. A court cannot impact a person directly without having in personam jurisdiction. However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over. Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).
This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage. This is important because the rules for service of process for in rem jurisdiction are different. In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper). Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.
Now, to be clear, the court can only grant you a divorce. It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).
My kid turned 18 and graduated high school - why am I still paying child support?
In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law. A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed. A non-self executing provision calls for changes after a certain event, but you must get a court order first. The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties? If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.
When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent. In virtually all other situations, child support termination is not self-executing. Let's break down the reason why.
Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0. However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE. Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise. As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered. You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.
The other changes from the above, simple scenario, are a bit more obvious. If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious. Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.
My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?
I get this inquiry a lot and unfortunately, the answer is usually "nothing." The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.
Now, the two big defenses to a lease non-renewal are discrimination and retaliation. Federal law bans housing discrimination on the basis of the "protected classes." In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney. You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.
Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited. This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.
However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.
Conclusion
I do hope to do more of these "short topics" posts in the future. Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs. If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consults are free for up to half an hour!
