Virginia Step-Parent Adoption: Completing the Family

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

Update (4/27/18):  Some of the information contained in this post is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

In today's world, more and more children are growing up with step-parents.  Step-parents often feel like full parents, yet frequently no one else treats them that way.  Fortunately, for the right situations, the law in Virginia makes it fairly easy for a step-parent to actually legally adopt their step-child.  This can be a very life-affirming, enriching decision, and is one of the most rewarding practices I have engaged in during my legal career.  In today's post, I hope to discuss what situations warrant a step-parent adoption, how the process differs from a "normal" adoption, and some considerations.

When A Step-Parent Can Adopt

The situations in which a step-parent can adopt a minor step-child are laid out in Virginia Code Section 63.2-1241.  There are two conditions required for a step-parent adoption.  First, the spouse of the step-parent (so, the biological or adoptive parent of the child whose marriage makes the step-parent a step-parent) must consent to the adoption and indicate that consent by actually joining the step-parent's petition.  The second condition is that one of the following eight situations must apply:

1. The second birth parent or adoptive parent is dead,
2. The second birth parent or adoptive parent consents to the adoption,
3. The second birth parent is the father of the child and he denies paternity,
4. The first birth parent is the mother and she swears under oath that she does not know who the father is and that his identity cannot reasonably be discovered,
5. The child is the result of surrogacy and the second birth parent consents to the adoption,
6. The step-parent's spouse is the adoptive parent of the child, was unmarried at the time of the adoption, and as a result there is no other parent,
7. The child is at least 14 years old and has lived in the step-parent's home for at least five years, or
8. The second birth parent or adoptive parent does not consent to the adoption, but the Circuit Court, after a hearing, determines that the second parent's refusal to consent to the adoption is contrary to the best interests of the child.

Now, it should be noted that by far the most common situations for step-parent adoptions are situations 1 and 2 above, but it is worth noting that the other possible situations exist.  Because of their infrequency, I will not cover situations 3 through 7 in this blog post, but the process I describe below will be largely similar for those situations - there just may be one or two minor differences.  While situation 8 is also rare, it is the only one that likely requires a court appearance, and so I do think it is worth covering briefly.

Second Parent Refuses Consent for Adoption

The adoption of your child by someone else terminates your rights as a parent of that child.  As far as the law is concerned, you are no longer that child's parent.  You get no visitation rights, no elder support rights, no inheritance rights, no hospital visit rights, and the list goes on.  As a result, for many parents, the thought of a child's step-parent (who is a step-parent due to marriage with the other parent) is not something the parent can support.  Unless situation 7 above applies, however, the parent's refusal to consent to the adoption will probably prevent the adoption.  Even if situation 7 does apply, the parent can still step in and object, and there is a reasonable chance they can still prevent the adoption.

There is a public policy in Virginia that it is always in a child's best interest to have a relationship with both parents, and "primary consideration" is given to the birth parents.  This means that, where there is no consent, the court will likely not approve a step-parent adoption, removing one of the biological parents from the picture, unless there is some evidence that the other parent is actually unfit to remain a parent.  This could be something like abuse, neglect, or desertion.  If the other parent hasn't utilized his visitation in 8 years, then that's one thing.  If the other parent is still a part of the child's life, however, either with or without court-ordered visitation, it is just extremely unlikely a court will find that the refusal of consent was not in the child's best interest.

As a result, the main reason that this situation is so rare is that adoptions in this situation are rarely successful.  If the other parent cares enough to object, the chances are the other parent has remained involved enough to prevent the adoption and so no adoption will even be attempted.  If the other parent is so uninvolved in the child's life as to warrant an adoption over that parent's objection, usually the other parent will either consent to the adoption, or not respond to the petition for adoption (which gets treated as consent).

Process Basics

A step-parent adoption, process wise, is dramatically different from a "normal" adoption.  There is no home study done, no guardian ad litem appointed for the child, no report from the Department of Social Services, rather the process is extraordinarily simple.  Specifically, the step-parent and the step-parent's spouse must submit their petition to the circuit court for the county or city in which they reside, along with evidence that one of the eight conditions above applies (death certificate for 1, signed affidavit of other parent for 2, etc.), a draft Final Order of Adoption, a completed Virginia State Form VS-21, and the applicable filing fees.  As long as all paperwork is completed properly, unless the Court feels that further investigation is required (very rare), the Final Order of Adoption should be signed and returned to you within a matter of three or four weeks.  The adoption is official as of the date of signing the Final Order of Adoption, and like all adoptions in Virginia the records of the adoption are sealed.

Some Considerations:  Child Support

One of the first things you need to be aware of before deciding to do a step-parent adoption is the adoption's effect on child support.  If your spouse is receiving child support from the child's other parent, you should be aware that the other parent will be in his or her rights to terminate child support immediately upon the completion of the adoption.  This is because once that parent is no longer legally considered a parent, that parent's duty to support the child ends with the ending of that person's parentage.  If your family relies on child support to help make ends meet, this is something to seriously think about before doing a step-parent adoption.

Some Considerations:  Other Relatives

Another factor to consider is that step-parent adoption is different from other adoptions in terms of its impact on other family members.  Specifically, in a normal adoption, family members of the parent(s) giving up the child are also no longer considered family, and as such have no family rights at all.  Virginia Code Section 63.2-1215, however, carves out an exception for step-parent adoptions.  In the case of step-parent adoptions, only the rights of the other parent are terminated, but the rights of that parent's family members are not - meaning that, legally speaking, the child retains his or her former grandparents, uncles, aunts, siblings, etc.  This is important because those family members retain the right, if they believe the situation warrants it, to sue for visitation with, and even custody of the child.  The child, however, also retains his or her inheritance rights from those family members, along with hospital visitation rights, and other legal advantages given to familial relationships.  It is also important to note that this exception largely does not go the other way.  The child, specifically, will not owe any duty to those family members that he or she may have without the adoption.

A Note About Adult Adoption

So, let's say you decide you can't afford to give up child support, or the other parent objects to the adoption and you know you cannot win over that parent's objection, but you still want to adopt the child some day.  Most people do not realize that you actually can, in some circumstances, adopt as your legal child an adult.  There are legal benefits to a parent-child relationship that extend beyond the minority of the child - hospital rights, inheritance rights, tax treatments, etc. - and as a result, Virginia has created laws that allow for adult adoption.

There are four situations in which an adult adoption is allowed, two of which apply here.  Specifically, adult adoption is allowed by a step-parent who has acted "in loco parentis" (in place of the parents) for at least three months, or by a step-parent (or other adult, for that matter) in whose house the child had resided for at least three months prior to turning eighteen.

Now, if one of those conditions is met (and pretty much any step-parent who would want to do an adult adoption will at least meet one of them), because the child is now considered an adult, the court's paternalistic instincts are gone.  Instead, only one question is asked - does the child consent to the adoption?  If the answer is yes, the adoption will be approved no matter who else objects, even if both natural parents object.  The only exception would be if it is proven that the child, while an adult, still lacks the mental capacity to make such a choice (a very hard thing to prove).  If the answer is no, then the court is absolutely barred from granting the adoption.

Conclusion

While the process for a step-parent adoption in Virginia is easy, the paperwork is complicated and hard to get right.  As a result, it is a good idea to have an attorney when going through this process.  If you are interested in a step-parent adoption, or in objecting to a step-parent adoption, please 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!

Why The Virginia Residential Landlord and Tenant Act Really Matters

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

UPDATE:  Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law.  Please see my blog post of April 24, 2014 for details.

Update (4/27/18):  Please note that much (in fact, pretty much all) of the below post is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

If you are a regular reader of my blog, it's not news to you that we have two entirely separate systems of law that govern residential leases in Virginia - the Virginia Residential Landlord and Tenant Act ("VRLTA") and the Common Law/Title 55 Chapter 13 (shortened here to "common law" for simplicity).  I've discussed repeatedly that there are many differences between the VRLTA system and the common law system for leases, so it is very important that you know which law your lease falls under.  In fact, this is so important, that one of my very first blog posts (specifically my third post) explained in detail how to tell which type of lease you have.  I'm glad I did that now - that particular blog post remains by far my most-viewed post (it has been viewed about the same number of times as my other 43 posts combined), and has been the source of nearly every client inquiry I have received from this blog.

In addition to providing that explanation, I've also occasionally explained how the difference actually matters.  My original post about the differences between the two explained what I consider to be the most important difference - the VRLTA forbids you from waiving your rights as a tenant, while the common law does not.  But I've also covered other important differences.  My post on security deposits covered the fairly extensive differences between the VRLTA and common law in handling security deposits.  In my post covering notice termination by a tenant, I covered the different ways the VRLTA and common law handle your security deposit in such a case.  Today, however, I want to cover some of the other differences that are important to know about, but which don't necessarily warrant their own post.  There are too many to do in one post, however, so I anticipate having at least one more post on this topic in the future.

Notice Termination to a Tenant

Many people will remember that I once called the VRLTA a "double-edged sword," pointing out that it provides advantages to both a landlord and tenant, even though it is generally regarded as a pro-tenant law.  Notice termination to a tenant is one of those areas which help a landlord.

If a tenant breaches a lease by doing something other than not paying rent (so, for example, keeping a pet on the property when pets are forbidden), the VRLTA, and specifically Virginia Code Section 55-248.31 allows the landlord to provide a notice termination, or 21/30 notice, of his own to the tenant.  There is no equivalent provision in the common law or Title 55, Chapter 13.  In other words, a common law landlord could be stuck.

Now there is a way around this for a common law landlord - the lease itself could provide the landlord with a way to terminate the tenancy in the case of a non-monetary breach.  When I write leases for landlords in common law lease situations, I usually just copy Section 55-248.31 in large part and use the same 21/30 notice set-up.  You don't have to do this, but due to the VRLTA this is something courts are very familiar with, so it can be advantageous to use a set-up courts already know.

If your common law lease contains no provision, however, for non-monetary breaches, all that can be done is a lawsuit for damages - not an eviction - so if you are a landlord, this is something to pay a great deal of attention to.

(Note:  I've had another attorney tell me that I am wrong about the lack of a 21/30 notice option for landlords in the common law, to which I asked him to show me the code section and/or common law case backing up his position.  He still hasn't, and until someone does, I am going to stand by my position, as I have found no code section and no caselaw saying otherwise)

Interest on Security Deposit

As discussed in my previous post on security deposits, the common law has nothing to say about security deposits, but the VRLTA does.  One of the interesting VRLTA provisions about security deposits is Virginia Code Section 55-248.15:1(B), which deals with long-term security deposits.  Recognizing the time-value of money, the General Assembly decided that if a security deposit is held for a long period of time, it should accumulate interest to the benefit of the tenant.  As a result, any security deposit held for more than 13 months in a VRLTA lease, must accrue interest according to the law, to be credited toward the security deposit.  There is no such requirement for common law leases unless one is written into the lease.

While this sounds great in theory, the law itself is rather stingy.  The interest rate is set at "four percentage points below the Federal Reserve Board discount rate as of January 1 of each year."  Well, as you probably know, we've been in a recession for a while, and the Fed cut the discount rate.  In fact, the discount rate has been at or below 4% since mid-January of 2008, so it's been more than five years since the VRLTA actually required any landlords to apply interest to a security deposit.

Rules and Regulations

Another area where the VRLTA is advantageous to landlords is in the area of Rules and Regulations.  The VRLTA in Virginia Code Section 55-248.17 allows a landlord to make rules and regulations regarding a tenant's use of the property so long as the rules meet six requirements:

1. The rules must be designed to "promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally."
2. The rules must be reasonably related to their purpose.
3. The rules must apply to all tenants equally, or at least in a manner that is fair.
4. The rules must be clear, not vague.
5. The rules must not be a means of the landlord to avoid the landlord's regular obligations.
6. The tenant(s) must actually be given a copy of the rules.

Properly adopted rules are then treated as part of the lease, and as such a breach of the rules is treated as a breach of the lease.  The advantage to having this allowance is that if problems arise, the landlord can address them with rules instead of a new lease.  The biggest area where rules become an advantage, in my experience, is as a means of resolving conflicts between tenants (or at least keeping the peace between them).

Again, this is a right the common law does not include.  It can be included in a common law lease, however, and then that right becomes applicable.

"Self-Help" Exception

The last topic I want to discuss in today's post is one I am very hesitant to raise because it involves a provision of the VRLTA that presents a substantial amount of risk to a tenant.  Nonetheless, it is there, and I think it does need to be covered.  Most readers are well-acquainted by now with my tirades against the use of "self-help" in a landlord/tenant dispute, such as a landlord changing the locks or a tenant withholding rent.  Well, the VRLTA has an exception.

Virginia Code Section 55-248.25 creates an affirmative defense to an eviction action for nonpayment of rent in the case of a landlord's noncompliance with the lease.  The actual mechanics of what a tenant must prove to use this defense closely mirrors a tenant's assertion, but the remedies to the tenant for a win are more limited.  The court could reduce the amount the tenant owes (but then the tenant still has to pay the amount owing within a reasonable time), the court could decide the lease should be terminated and still order immediate possession to the landlord, or the court could refer the matter to a municipal agency.

I strongly discourage any tenant from trying to take advantage of this provision.  The main reason is that it is fraught with perils.  First, if you are not positive that you have a VRLTA lease, the provision may end up not even applying, and you will get evicted.  Second, if you don't meet all the pre-conditions (proper notice to the landlord, for example), you cannot use this defense, and you will get evicted.  Third, even if you meet all the preconditions, you have to pay the money into the court's escrow, or else you cannot bring the defense and you will get evicted.  Fourth, you have to prove that the landlord is in violation of the lease, and if you fail, you will get evicted.  Fifth, even if you succeed, the court could decide on the remedy of terminating the lease, and then you will get evicted.

If you are going to go through the trouble of providing notice, preparing a case, and paying your rent into escrow with the court, do yourself a favor and just file a tenant's assertion.  There are more remedies available, and if you lose, you will not get evicted.  Nonetheless, this provision does exist, and no similar provision exists for common law leases, so I thought it did need to get mentioned.

Conclusion

While I continue to believe that the most important difference between a VRLTA lease and a common law lease is the VRLTA's prohibition on a lease waiving a tenant's rights, there are other important differences too, and today's post has covered some of them.  If you have any questions about the rules that apply to your lease, or if you are engaged in a dispute with your landlord or your tenant, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss your case.  Our initial consultations are free for up to half an hour!

Living the Not So Good Life - Retirement and Child/Spousal Support

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

Update (4/27/18):  Please note that some of the information in the blog post below is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

If you go back 100 years or so, when our modern laws about spousal support (then, of course, just known as alimony) and child support were starting to emerge, "retirement" was a vague, largely unheard of concept.  Most people were either wealthy, or worked until they died.  As a result, there was not much of a need for our support laws to take retirement into account.

Of course, this has not been the case for some time now, and the vast majority of workers expect to retire some day (usually with a dream that involves some combination of travelling and beaches).  But what about people who have children later in life, and hit retirement age while still owing child support?  Or what about people who are ordered by a court to pay long-term (or even indefinite) spousal support?  Support orders are supposed to take into account the life circumstances of the parties, including their incomes, so how does support change when you hit retirement?

In fact, retirement is a complicated issue in support law - but often one that leaves retirees or those desiring to retire greatly disappointed.  I hope to address those issues here.

"Material Change"

The first rule to remember is that if you already have a child support or spousal support order, it cannot be modified by a court unless the party seeking the modification proves that there has been a "material change in circumstances" since the last time a support order was entered.  A material change is generally seen as some change in circumstances that directly affects the factors that go into determining support (income, expenses, age of children, etc.) which is not simply a minor change (for example, a change in income of $5 per month).  However, it is important to note that there is no material change in circumstances, legally speaking, if the only "material change" is one brought about by the "voluntary conduct" of the party seeking the change.

Now, there are two key distinctions to make to that last rule.  First, the conduct must be voluntary for that rule to kick in.  Something beyond your control (your car gets totaled in an accident that wasn't your fault so now you have the expenses of a new one, you got laid off from work, etc.) is not voluntary, so it still counts as a material change.  Second, if you are the party seeking the change, it must be your voluntary conduct that caused the material change.  If the other party's voluntary conduct caused a material change (such as switching to a new, higher paying job), you can still file.

So, how does this apply to retirement?  Well, it generally means that retirement is not, in and of itself, a sufficient reason to get support changed.  Courts presume you would not retire if you have not lined up enough money to pay your bills (including your support bills) in retirement, and as such treat retirement as voluntary conduct - and not a material change in circumstances.  If, however, you are forced into retirement (for example, your company has a maximum age, you are given the option of retirement in lieu of termination, you need to retire due to health, etc.), then that can constitute a material change.  If you just on your own, however, decide you are of the age where you want to retire, that will not count as a material change, and if that is the only material change you can allege, then you will not be able to modify your support.

Voluntary Underemployment

Now, many people who retire frequently will find other material changes to get their foot in the door for modification.  If it's been many years since the last support order, it's very likely your needs will change.  In fact, the Division of Child Support Enforcement (note, this is just DCSE, not the courts) considers the passage of 3 years' time to automatically be a material change, and while the courts do not follow the same rule, if it's been at least 3 years, the odds are pretty good you can find something.

If you do get your foot in the door, however, don't think you are walking down easy street.  As I have discussed before, when considering your income, you have the burden to show the court that you are not "voluntarily" unemployed or underemployed.  If you do not meet that burden, the court will assign to you the income it thinks you should be making.  If you retired voluntarily, the odds are the court will assign to you the income you would be making if you were still working.

However, voluntary unemployment is a one-way street.  "Income" is considered to be income from any source, and if, between your pension, withdrawals from a 401(k) and/or IRA, and other forms of non-wage income you actually make more money in retirement than you did working, your higher current income will be used.

Because of how the court views retirement as voluntary conduct, and voluntary unemployment, it is very unlikely that an individual can actually get his or her support obligations cut (or increased, for that matter, if you are the one receiving support) due to retirement.  There are, however, two big exceptions to this rule.

Exception 1:  Split Pensions

If you work in a job that provides a pension, and some of that work occurred while you were married, chances are your ex-spouse is entitled to some of that pension.  Once you retire and start receiving your pension, your ex-spouse will start receiving his or her portion of your pension as well.  Once that begins, your ex-spouse will now have more income, which produces both a material change, and a basis to reduce support.

Exception 2:  Agreement

It is not uncommon for an agreement which establishes indefinite spousal support to also have a retirement clause.  Remember that when spousal support is set by signed agreement, that agreement is binding and not modifiable by a court.  As a result, if the agreement says something different than the above regarding retirement (for example, "Retirement after age 62 is automatically considered involuntary"), the terms of the agreement win out.

Planning for Retirement Support

Given the above, it is important then to plan for support payments in retirement.  You should presume that when you retire, you will have to continue support at its current levels (except that child support will terminate when the child becomes an adult), and include these costs in your retirement financial planning.  Remember also, however, that there comes a point when retirement is no longer voluntary.  If you retire at age 60, but start having physical ailments that would prevent you from working at age 65, then that could be a material change in circumstances - your unemployment had gone from voluntary to involuntary because if you were still working you would have had to retire.  As such, you will not be stuck forever, but as long as your health remains good, you will still have to pay your support.

This is, in my opinion, another reason why when negotiating spousal support you should be very hesitant about ever agreeing to indefinite support unless there is something like a retirement clause.  The chances are, when you have indefinite support, you will be paying long after you retire.

Conclusion

Retirement presents a panoply of challenges in regards to legal support obligations, most of them not very favorable to the retiree.  If you are involved in a support situation and are considering retirement, retired, or the other party is retiring, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation to discuss the matter.  Our initial consultations are free for up to half an hour!

This Week's Post Cancelled Due to Inclement Weather

For those of you not paying attention, it's snowing out there!  My office is closed, my son has a cold, and I'm snowed in.  These things have combined to make today a bad day to do a blog post, so I'm afraid I'm going to have to say no post this week.

Stay tuned, however.  Next week I'm planning to cover the controversial topic of how retirement affects child and spousal support obligations.

Legal FAQ Part IV

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

Introduction

Well, it's Thursday and I haven't had time to put together a post yet this week.  Now that I sit down to do so, I'm realizing my time is short, and I am again having a little bit of writer's block.  Now that I realize I haven't done a "Legal FAQ" since October, I figure I'm due for one.  As with my previous ones, today I will answer a few questions that I am frequently asked by friends, family members and clients about the legal system, but which, in my opinion, don't warrant a full blog post on their own at this time.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III

Will Amanda Knox get extradited to Italy?

I've been getting this question a lot recently from friends who follow the very controversial, very public Amanda Knox case.  Now that she's been convicted again, presumably our extradition treaty with Italy would kick in.  In my opinion, however (and in the opinion of most legal experts I've seen interviewed), Amanda Knox is in no danger of being extradited to Italy - at least not from the United States.

While we do have an extradition treaty with Italy that would seem to require us send her to Italy, to some extent treaties are similar to any other law - they must be constitutional.  Further, there are two ways to challenge the constitutionality of a law - facial challenges, and "as applied" challenges.  An "as applied" challenge says "this law is constitutional on its face, so the law can survive, but as applied in this particular case, the application of this law is unconstitutional."  I believe Amanda Knox has, essentially, a bullet-proof "as applied" challenge to the extradition treaty.

Essentially, while the treaty itself is constitutional, using it in her case would not be.  This is because sending her to Italy would subject her to a violation of her rights under the U.S. Constitution.  Specifically, the 5th Amendment bars someone who has been acquitted of a crime from being re-tried for that same crime (known popularly as "double jeopardy").  While double jeopardy is actually a very complicated area of constitutional law, it's applicability here is pretty clear.  Knox was tried and acquitted by a jury, then re-tried and convicted.  That is a violation of double jeopardy, and as such, Knox could make a strong challenge to any extradition effort.  So strong, in fact, that I believe the State Department will not even try to extradite her.

Now, I would note that Knox is protected from extradition from the U.S.  If she travels to another country that has an extradition treaty with Italy (for example, almost any E.U. country), and that country does not have the same protections, she could be extradited from there.  As a result, unless her conviction is overturned, Knox will have to spend the rest of her life being very careful about where she travels if she ever leaves the country.

Why doesn't Congress ask the Courts if a law is constitutional before it's passed?

Over the years, I've gotten a few questions about this one - and it makes some sense.  Why do we have Congress pass laws, put them into force, and possibly actually affect people before there can be a constitutional challenge?  If a law's constitutionality is in question, why not just ask the courts to rule on it first?

Well, the answer to that lies in the Constitution itself.  Article III, Section 2 of the Constitution gives our courts the authority to decide various forms of "cases" and "controversies."  This is, fittingly enough, known as the "cases and controversies" doctrine.  In other words, for our federal courts to take action, they are constitutionally required to have before them an actual "case" or "controversy," meaning a live dispute between two or more parties.  This has long been held to mean that the federal courts cannot issue "advisory opinions," which is what answering a question about a hypothetical law would be.

Interestingly, many other doctrines you may have heard about also arise from the "cases and controversies" doctrine.  These include "standing" (the requirement that the party bringing an action actually suffers harm from the alleged breach of law), "mootness" (the requirement that the issue must be ongoing), and "ripeness" (the requirement that the issue must have already started to cause problems).  These doctrines also come from the perspective that if standing or ripeness is lacking, or an issue is moot, then the court is really just issuing an advisory opinion.

Finally, I would note that this only applies to federal courts.  Different states have different rules, and there are several states that do allow advisory opinions - and in those states the state legislatures frequently apply to the state supreme court for advisory opinions on hypothetical laws.  Virginia is not one of those states, however - Virginia also has a state constitutional "cases and controversies" requirement.

As a tenant, how much money will I owe if I just break my lease early?

This is another question I hear often from tenants who don't have a problem with their landlord, but have a situation that has caused them to wish to move before their lease has ended.  The answer to this question is one that depends almost entirely on which law applies to your lease.

As an initial point, most contract law includes a doctrine known as "mitigation of damages."  This requires that when one party to a contract becomes aware that the other party intends to breach the contract, or has breached the contract, the aggrieved party must take all reasonable action to reduce the damage that party suffers from the breach.  Then, whether the aggrieved party has met his obligation or not, the breaching party is only liable for the damage the aggrieved party would have suffered if he mitigated his damages properly.  As a quick and dirty example, contractor agrees to build a home, with payment of 1/3 before work begins, 1/3 when work is halfway done, and 1/3 when work is finished.  The first 1/3 is paid, but when work is halfway done, the buyer refuses to pay the second 1/3.  The contractor cannot then finish the home and sue for the full 2/3 remaining.  Instead the contractor must stop work, and make a reasonable effort to find new work to make up the anticipated money he'd have earned to finish the house.  As a result, the contractor can only sue for the 1/3 he was owed at the halfway mark, plus any difference between what he would have earned for the final third and what he actually earned with his replacement work.

So, it would seem this should apply to leases as well.  After all, rentals are contracts, and so a landlord would seem to be required to find a new tenant and you should only be responsible for rent between when you leave and when a new tenant is found.  It's not that easy, however.  For more than a century, the common law in Virginia (as it had been in most states) held that because a lease involved the conveyance of land, even on a temporary basis, the full contract had to be honored.  As a result, a landlord had no obligation at all to mitigate damages, and as such, a tenant would be responsible for the full amount of rent owed to the end of the lease.  The only exception would be if the landlord on his own mitigated damages and got a new tenant, then the old tenant's obligation ended there.

Well, if you're a regular reader of this blog, you probably know where I'm going with this.  If you want to know the current rule, you need to know whether or not the Virginia Residential Landlord and Tenant Act applies to your lease.  My post breaking down figuring that out can be found here.  If the VRLTA does not apply to your lease, then the old rule is in force, as nothing in Virginia Code Title 55 Chapter 13 changes the common law rule.  If the VRLTA does apply, however, then Virginia Code Sections 55-248.33 and 55-248.35 apply.  These two code sections provide that a landlord is required to mitigate damages after a lease is breached.  In these situations, you can expect to pay rent for the amount of time it would take for a reasonable effort to find a new tenant (probably 1-2 months), plus the costs of re-renting (advertising, cleaning up, showing, etc.).

Conclusion

While I realize I've handled fewer questions than my previous FAQ's, my answers seem to be longer than usual.  As a result, I'm going to wrap it up here.  As usual, if you have a legal issue you think I can help you with, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

So You've Won a Lawsuit... Now What?

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

Introduction

Yesterday I was at the Fairfax County Courthouse to do some paper filing.  Getting in was a challenge because a local middle school's entire 8th grade was there for a Civics field trip.  Personally, despite the hallway traffic jams they create, I love these field trips.  Nothing makes me happier than to see young people learning how our legal system really works, away from the movies and TV shows.

After I did some filing, I bumped into a group that asked me if I was a lawyer.  I said yes, and, filled with curiosity, they asked me what I had just done.  I told them I had filed a garnishment.  The quizzical looks I got in response told me this was a new concept so I asked, "If you sue someone and win, how do you think you actually get them to pay you?"  The response I got was, "Well, won't they go to jail if they don't?"

This is not an entirely uncommon belief that I encounter.  Some people think you go to jail if you don't pay, others think your assets just start disappearing, others still think that nothing happens at all except maybe a ding on your credit.  Today's blog post, I will discuss how you make someone actually pay you after winning a lawsuit.

Judgment vs. Order of Payment

Back in September, I wrote a post that, in the context of contract law, explained the difference, to some degree, between equity and law cases, along with between judgments and injunctions.  This is important to understand.  The vast majority of lawsuits for money are common law cases, not equity cases, and as a result, they result in judgments.  A judgment is not an Order to pay someone, it is just a piece of paper saying that the court has found that you owe someone this amount of money.  This means it is not contempt of court to refuse to pay, and as such you cannot go to jail for failing to pay.

There is such a thing as an Order of Payment.  This is when, usually in an equity case, the court orders you to pay someone something.  In those cases, it is contempt to refuse to pay, and you can go to jail for that refusal.  The most common situation in which this arises is family law.  Child Support and Spousal Support orders are orders of payment.  Orders to reimburse the other party their attorneys' fees in an equity case are also orders of payment.  Again, these are distinct from judgments - this is not a court saying you owe someone money, it is a court ordering you to pay someone money.  The vast majority of civil lawsuits, however, do result in only judgments.

Agreement

The simplest way to collect on a judgment is to reach out to the judgment debtor (what we call the person who lost the lawsuit) and see if you can work out a payment plan.  Judgment debtors frequently are willing to work towards this for a number of reasons.  First, a judgment kills your credit rating, but the faster the judgment is "satisfied" (paid off), the faster it goes off your credit.  Second, an agreement gives the judgment debtor some control over how much is paid and when.  Finally, an agreement prevents assets from being frozen, which protects the judgment debtor from running afoul of other creditors.

Garnishment

By far the most common way to collect a judgment is a garnishment.  A garnishment is a process by which the court tells someone who owes money to the judgment debtor that they have to instead pay that money to the judgment creditor (what we call the person who won the lawsuit).  The person who owes the judgment debtor money and is thus ordered to pay that money to the judgment creditor is therefore called the garnishee.  The most common garnishees are employers and banks.  Employers have to pay a portion of the judgment debtor's paycheck to the judgment creditor (usually 25% of the take-home pay), while banks have to pay the entirety of any bank account held by the judgment debtor with that bank to the judgment creditor (unless, of course, the bank account holds more than the judgment - then they just need to pay the judgment amount).

A garnishment actually is an Order of Payment directed to the garnishee.  That being said, failure to comply with a garnishment by a garnishee does not result in jail time for the garnishee (which makes sense since most garnishees are companies, not people).  Instead, failure of a garnishee to comply with a garnishment can result in a judgment being entered against the garnishee for the full amount of the original judgment.  If that happens, the judgment creditor now has two judgment debtors against whom he can collect, and he is more likely to target the former garnishee since the garnishee will likely have more money available to pay.  The result of this rule is that garnishments, at least issued to companies, are rarely ignored, and barring issues raised by the judgment debtor, are usually successful.

Levy/Writ of Fieri Facias

A less common way to collect a judgment is through filing for a writ of fieri facias.  The writ of fieri facias is actually issued pretty much any time post-judgment collections is engaged in, and it orders the sheriff to seize any property of the judgment debtor the sheriff comes across to make good on the judgment.  However, in most cases the writ of fieri facias is largely meaningless, since the sheriff will not enter the judgment debtor's home if, for example, she is merely serving a garnishment.

If with your writ, however, you seek what's called a "levy," you are asking the sheriff's department to go and actually seize any personal property of the debtor they find to sell at an auction to try to get your judgment.  This is not a popular option because it is cumbersome (you need to identify the precise property to be seized in your filing), and expensive (there is a substantial bond you need to pay for this to be done in case anything turns out to be seized wrongfully).  Further, Sheriff's sales tend to bring in much less money than the seized property is worth.

The levy approach is usually only used when the judgment debtor has significant personal property while also having no job, a very low paying job, and minimal money in bank accounts.

Judicial Foreclosure

The vast majority of judgment debtors do not own real property.  To some degree this makes sense - if you don't have enough money to pay your debts, you probably don't have enough money to own a house.  If, however, you find yourself in the rare situation where the judgment debtor does own real property, and has equity in that property, you can try to engage in judicial foreclosure.  This is a very unpopular choice amongst judgment creditors, however, for reasons I will get to.

By law in Virginia a judgment serves as a lien against any real property owned by the judgment debtor.  That lien, however, does not attach (become effective) until the judgment is recorded in the land records of the circuit court for the jurisdiction where the property is located.  Judgments are usually automatically recorded if the judgment was won in the Circuit Court - but it behooves you to double-check (I know I found a judgment from several years past at one point that had not been recorded like it was supposed to and it could have caused major problems if I hadn't caught it).  If the judgment is from the General District Court, however, or is from a county or city other than the county or city where the judgment debtor's real property is located, you will need to obtain a "judgment abstract" (a document signed by a court official confirming that a judgment was entered in the amount stated) from the court where the judgment was entered and take it to the land records for the jurisdiction where the property is located to record.

Most judgment creditors do want to ensure that their judgment is recorded because if the judgment debtor happens to sell his or her property while the judgment has not been satisfied, the judgment creditor can likely get his money that way.  Moreover, it is the recordation of the judgment, not the issuance of the judgment itself, that causes a report to go to the credit bureaus and drives down the judgment debtor's credit - inspiring the judgment debtor to hopefully take action to pay off the judgment.

Enforcing the lien via judicial foreclosure, however, is another story.  First, the judgment creditor must prove that renting the house out for five years would not bring in enough money to satisfy the judgment.  If he does that, he still must prove that, if all higher priority creditors with liens on the property are paid first, there will still be equity left to go to the judgment creditor.  Finally, if the judgment creditor gets through those hoops, a special commissioner has to be found to conduct the sale, you get stuck with the special commissioner's bill which you probably cannot assess to the judgment debtor, and there's still no guarantee the sale will happen.

Debtor Interrogatories

So, say you want to do one of the above, but you don't know anything about the judgment debtor's assets.  You don't know where they work, where they have their bank account, what property they have, anything of the sort - what do you do?  Well, Virginia has a process called debtor interrogatories.  Debtor interrogatories are a legal process by which a judgment debtor is compelled to come to court and answer questions under penalty of contempt.  It is entirely appropriate to ask for the judgment debtor's social security number, employment information, banking information, etc., and the judgment debtor is required by law to tell you, and to tell you truthfully.  Failure by the judgment debtor to appear at the interrogatories is contempt of court and can result in the judgment debtor going to jail until he appears and answers your questions.

Statute of Limitations

In case you're thinking of just sitting on your judgment for a while, beware that there is a statute of limitations to taking any of the above actions.  No action can be taken to enforce a judgment (including any of the above options other than voluntary agreement) if the judgment is more than 20 years old.  Moreover, if the judgment was entered in the General District Court, that limit is 10 years, although it becomes 20 years if you do record the judgment in land records.  There is one out in that you can get one extension of another 20 years if you show the court "good cause" as to why it should be extended (such as the judgment debtor having hid out for years, an agreed payment plan being ongoing, etc.).  The catch, however, is that you must file your motion for that extension and get it granted before that original 20 year period expires.  Failure to collect within this statutory period essentially renders your judgment uncollectable.

Other Obstacles to Collection

There are a number of other obstacles to collection that are too numerous for me to explain in detail here.  Perhaps a future post.  Just note that your ability to collect might be delayed, partially eliminated, or completely eliminated if the judgment debtor were to file for bankruptcy, claim one of the myriad of state and federal exemptions, or to make claims that something about your paperwork was improper.

A Note About Insurance'

There are few things judgment creditors love more than a judgment debtor with liability insurance.  Specifically, when the judgment debtor has liability insurance, that insurance company is usually obligated to pay the full amount of the judgment (up to the coverage limits) pretty shortly after the judgment becomes final (which happens when all appeal and reconsideration periods have expired - usually 30-60 days after judgment).  If your judgment debtor has liability coverage, there is likely nothing you need to do to collect, but this is still not a guarantee.

Conclusion

Winning a lawsuit can provide an exhilarating sense of vindication for a judgment creditor.  The reality of collection, however, frequently settles in shortly thereafter.  The means of collection are challenging, but they are there, and if utilized properly, there's still a good chance you will get your money.  If you are looking to collect on a judgment you have already won, or defend against a post-judgment collection, 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!

Finding that Special Someone - Picking the Right Lawyer for You

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

Introduction

Since starting this blog, I've spent a lot of time discussing the need for an attorney, when to hire an attorney, how to properly assess your attorney, and even how to hire an attorney.  What I have not discussed, however, is once you have decided you need an attorney, but before you hire the attorney, how you actually pick the attorney you plan to hire.  Today's post will attempt to rectify that by discussing the various factors to keep in mind when choosing your attorney so you hire an attorney who is right for you.

Before I begin, though, a note of caution.  I am clearly biased in this matter - I want you, if you have a legal issue, to hire me.  It is likely that this desire is going to influence how I write this post, though I will try not to let it do so.  Nonetheless, it is probably worth keeping that in mind when reading my post.

Shopping Around

I know this almost goes without saying, but I'm shocked at how many people hire the first attorney they talk to.  An attorney is generally a major investment.  Even if you don't end up spending a great deal in legal fees, you are still investing your legal rights with that attorney.  If an attorney is not a hire you "shop around" for, what will you shop around for?

I understand the appeal.  If you already have an attorney in another matter, asking that attorney to represent you in your new matter seems simple - but what if that attorney doesn't normally handle those matters?  Do you really want to be that attorney's guinea pig for that practice area?  Similarly, you might like your friend who has a friend he really likes who is an attorney, but does that automatically mean this person is a good attorney?

I strongly recommend you speak to at least three attorneys before hiring one.  To be clear, I mean three attorneys from three different firms.  You will likely find a range of experience, billing rates, and explanations of how your case will be handled.  This should give you an idea of where to go.

Billing Rates

Money is always a factor in a hiring decision, and this should be no different.  You will be foolish, however, if you make this the only factor.  If one lawyer costs $150 an hour and will lose while another costs $250 an hour and will win, the higher priced attorney may very well be the right way to go.  Beware, however, that billing rates do not necessarily equate to experience, skill, or quality of the attorney.  Many factors go into a billing rate.  For example, an attorney with two years of experience working at a five attorney law firm whose boss has 40 years of experience will likely bill more than a solo attorney with three years of experience.  Why?  The less experienced attorney not only has his own experience, but a law firm full of experience from which to draw free advice.  When you are hiring an attorney, to some extent you are hiring that attorney's whole firm.

Fundamentally, you need to figure out why an attorney's billing rate is so high or so low.  Some are high just out of the fact that the attorney sets their rate as high as they think they can get away with.  On the other hand, some rates are very low because that attorney handles cases like yours in bulk and will give your case minimal individualized attention (there are cases for which this is fine, though, if your case is extremely uncomplicated).  As a result, you need to know the comparative billing rates of your potential attorneys, but this should not be the only factor in your decision.

Experience

My personal opinion is that experience is a double-edged sword and somewhat overrated as a means of evaluating an attorney.  More experienced attorneys tend to charge more, spend less time preparing, give less attention to their individual cases, and be less "hungry" to win.  Moreover, laws change so frequently that sometimes that experience can be a detriment if the attorney missed a change in the law.  On the other hand, experienced attorneys are more likely to know the judges, make fewer technical errors, and be more confident in the advice they give you.

Really, you need to decide what you want.  As a relatively young attorney myself (disclosure:  I'm not turning 30 until 2015) I've always felt the advantages of a more inexperienced attorney are actually pretty great, especially when that attorney is in a law firm with more experienced attorneys to draw from.  Nonetheless, you have to decide what you are most comfortable with.

Ratings

The next way to evaluate your potential attorneys is to look into how they have been rated, either by other attorneys or by other clients.  While we cannot allow subjective statements about ourselves on our websites (or blogs), there are sites we do not control which do.  You can find law firm ratings on Yelp and you can find individual attorney ratings on Martindale-Hubbell (if you're interested, you can find our firm's Yelp rating here, and my personal Martindale-Hubbell rating here, but note that I do not endorse any of the statements made therein).  Those are my two favorites, personally.  There are other sites out there as well, however, such as ratemyattorney, Avvo, and similar metrics.

The danger of these sites, however, is two-fold.  First, anyone can post.  There is no guarantee that the rating is actually left by the person who claims to be leaving the rating.  Second, as I say in my disclaimer whenever I discuss case results, every case is different, so the experience of one client may not reflect the experience you will have.

Reputation

To me, the gold standard in evaluating an attorney is that attorney's reputation, both within and without the legal field.  Now, you might be thinking "how do I find out an attorney's reputation?"  I will admit, it's hard.  If you don't have word of mouth sources to go to, you may very well not be able to find out, but there are ways.  Once good way if you are interviewing multiple attorneys is to ask the attorney you are interviewing if they know of/about the other attorneys.  Remember, we are required to be truthful.  Just a couple months ago I had a landlord/tenant client who was having issues with her ex-husband.  I asked her who her divorce attorney was, about to make my pitch for why she should switch to us, but I stopped dead in my tracks when she told me who she had.  Instead, I had nothing to say but "well, if you can afford his billing rate, you won't do much better than him."  If the interviewee doesn't know the other attorney, I wouldn't hold that against the other attorney (there are many reasons we don't know the name of another attorney - I'm still learning about some very experienced, very good attorneys myself), but if they do, that attorney's opinion will be very valuable.

Putting it All Together

So, you've interviewed all of those potential attorneys, gathered their billing rates, experience levels, ratings and reputation, and now you have to combine it into a choice.  Ultimately, you have to decide based on your comfort level.  Ideally you'll have a reasonably experienced attorney with top-notch ratings, a super reputation, and all with a low billing rate which is low because he just doesn't like charging people money.  Realistically, that's not going to happen.  Decide your budget, how difficult you think your case is, how much individualized attention you want your case to get and go from there.  I cannot say much more than that in this paragraph because really, you have to choose the attorney that works for you, there is no simple formula.

Conclusion

Many factors should go into deciding what attorney you hire, and billing rate should not be the only (or even the primary) one.  If you are dealing with a legal issue that warrants the assistance of an attorney, I encourage you to consider giving us a try.  You can 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!