Friday, July 3, 2020

Relevant Changes in Virginia Law - 2020 Edition

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

Every year, I put together a blog post with changes to the law that have occurred in Virginia relevant to my blog.  Usually I do this in the spring, after the new laws are enacted but before they go into effect, but as you may have noticed there is a bit of a pandemic going on, so my time to put together this blog post has been limited.

There are actually a lot of interesting changes in law happening in Virginia this year - this was inevitable with the change in party control that happened following the 2019 elections - but many of the big ticket items are not particularly relevant to this blog.  I do recommend, however, that you read one of the many fine articles written about some of these laws, as they impact everything from Confederate statues to gun control to casino gambling to state holidays to marijuana possession.  As usual, though, this blog post will just focus on changes in the law that impact the topics covered here.

The laws referenced herein all went into effect on July 1, 2020.

Step-Parent Adoption Background Check

One change in the law involves a law that didn't get enacted.  In my 2018 law change update, I noted that a new law had passed requiring the step-parent in all step-parent adoptions to pass a criminal background check.  As I noted at the time, however, in recognition of the disruption this change might cause, the law was effectively a test, and expired July 1, 2020.  Sure enough, the requirement proved exactly as disruptive and problematic as I feared it would, and the bills seeking to extend this law all failed - so as a result, the step-parent adoption background check provision was allowed to expire.

Pregnancy Expenses in Child Support

There is often a big blind spot in child support law, particularly involving unmarried parents, where a father only has to support the child after the child is born, while the mother has to bear all the costs of having the child.  The Virginia General Assembly looked to address some of that imbalance this year with the adoption of SB 428.  Under the terms of this law, if a petition for child support is filed within six months of a child being born, the noncustodial parent can be ordered to pay, in proportion to the parties' gross incomes, any "reasonable and necessary" expenses of the mother's pregnancy and childbirth that was not covered by insurance.  Now, the statute does not define these expenses and as a result, they are arguably not limited to medical expenses, but could include things like child birth classes, pre-natal vitamins, and other such costs of a pregnancy.

Modification of Contractual Spousal Support Language

Once again, in my 2018 law change update I noted that a rather major change was made to the law regarding modification of spousal support that had been set by a contract or property settlement agreement.  As I noted at the time, the law had previously been that if the contract did not lay out exactly how the spousal support was to be modifiable, then the support could not be modified no matter what.  In 2018, the law was changed so that the default was that for all new contracts/agreements made after July 1, 2018, the default was that such support could be modified the same was as if it had been set by a court instead of an agreement, unless the agreement contained specific language that was included in the new Code Section to make the support non-modifiable.  Well, this caused some problems because a number of people who really did want their spousal support agreement to be non-modifiable failed to use the exact language stated in the Code, and so the support was found to be modifiable even though this was clearly not the intent of the parties.  As a result, this year the General Assembly passed HB 1501 which again amended the law.  Now, it remains the default that spousal support set in agreement is modifiable (as was put in place by the 2018 law change), but now, to make that support non-modifiable, you just have to have language in the agreement indicating that it is non-modifiable, you do not have to use the specific words contained in the law.

Pendente Lite Spousal Support Guidelines

As has been discussed on my blog previously, if you need spousal support while waiting for your divorce to finalize, you can file for pendente lite spousal support - a motion that provides support just temporarily, until the case concludes.  I noted in my previous blog post that pendente lite spousal support in the J&DR Court involves a formula for setting the support amount, and that in the Circuit Court (where divorce cases are held) many localities have adopted their own formulas but there is no uniform rule.  HB 1500 has now changed this by applying the J&DR formula to pendente lite hearings in the Circuit Court as well.  It also adjusted the formula to take into account changes in tax law, so the formula is now 26% of the payor's gross income less 58% of the payee's gross income where there is also at least one minor child in common between the parties, and 27% of the payor's gross income less 50% of the payee's gross income where there are no minor children in common.  As before, however, these formulas apply only to pendente lite rulings - the final determination of spousal support is still made without reference to any formulas.

Tenants' Rights and Responsibilities

One of the biggest disadvantages tenants have in landlord/tenant law is a simple lack of knowledge of the law that a more sophisticated landlord usually has.  HB 393 seeks to address some of that imbalance by requiring the Virginia Department of Housing and Community Development to put together a plain language list of tenants' rights and responsibilities.  The law now requires that this list be provided by a landlord to all prospective tenants before signing a lease, and prohibits the landlord from taking any legal action against tenants (including eviction) for a lease violation unless and until the rights and responsibilities list has been provided to the tenant.

Fifth Amendment and Adultery

As I have addressed before, adultery remains highly relevant to Virginia family law, but proving adultery has occurred is exceptionally difficult because adultery, while almost never enforced, remains technically a crime in Virginia, and as a result a party who commits adultery can avoid having to admit having done so by pleading the Fifth.  This has been a matter of some concern and consternation in the family law field for some time, leading to a range of potential solutions to decrease the cost of divorce litigation while easing the process for a spouse to prove that he or she was a victim of adultery.  This year, the General Assembly looked to do that by adopting SB 433.  SB 433 amends a provision of Virginia Law that prohibits courts from holding it against a party to a civil case if that party invokes a constitutional right (which would include pleading the Fifth).  Now there is a specific exception holding that in any civil case for divorce, spousal support, custody, or visitation filed after July 1, 2020, "if a party or witness refuses to answer a question about [adultery] on the ground that the testimony might be self-incriminating, the [court] may draw an adverse inference from such refusal."  In other words, the judge can (but is not required to) decide that you pleading the Fifth when asked about adultery means you are, in fact, guilty of adultery.  This is a major change in family law that could substantially impact how family law cases involving accusations of adultery are litigated moving forward.

Conclusion

So those are the big changes impacting the topics covered by this blog.  Those are not the only changes in these fields, I'd note, so if you have a question about how any of this year's law changes impact you - ask your attorney!  If you don't have an attorney, then check out our initial consult policy in the link at the top of the page or by clicking here, and feel free to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or give us a call at (703)281-0134.  Our initial consultations are free for up to half an hour!