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
Before I begin, a quick programming note. I have a trial next Thursday, which means I won't be able to post on Wednesday or Thursday, my usual posting days. As a result, next week's post probably won't be up until Friday. Sorry for the delay!
Now, have you ever heard of a case being "dismissed on a technicality"? My guess is, you probably have. This is something frequently used to point to problems with our justice system - people are able to escape justice because some technicality unrelated to the merits of the case caused them to get away. Few people actually investigate the technicalities themselves, and if they did, they might discover many of those technicalities exist for a very good reason.
Today, I'm going to cover some of the common "technicalities" in civil litigation, and how you can avoid letting your case become victim to one. There are far too many to cover in one blog post, which is why I labeled this post "part I," I expect to do more in the future.
Why We Have "Technicalities"
The entire purpose of a trial in our system is to allow a judge and/or jury to have their best chance of getting to the actual, relevant truth of a case. As a result, we have many rules designed around the idea of preventing surprise. While surprises in the courtroom may make for good, dramatic television, it usually prevents the court from actually reaching the truth. If you are surprised by something the other side does, you likely have not prepared a response to it. If there is a response you could have prepared, this surprise has now deprived the court of your response, and as a result, of an element of the truth.
We also have many rules designed to prevent unfairness at trial. Unfairness at trial also frequently hinders the court from reaching the truth in one way or another, be it by presenting unreliable evidence that cannot be properly rebutted, forcing a person to go to court who should not have to, providing other obstacles to one party or another that should not be there, etc.
In my experience, the vast majority of the time that a case is "dismissed on a technicality," that technicality is that one party or another had failed to follow the rules regarding surprise or unfairness, meaning that had the case actually gone to trial, that party would have an unfair advantage and prevent the court from having its best chance to reach the truth. Even if such violations are unintentional, their effect, left unresolved, could be devastating on the course of justice. As a result, since the error is their fault (even if not their intentional doing), they are the party that suffers the consequences.
In today's post, I plan to cover just a few of these rules, and I hope to cover a few more in the future.
Witness and Exhibit Lists
Many courts when a trial is scheduled issue what is called a "scheduling order." That order requires you to provide, amongst other things, a list of witnesses and exhibits to your opponent a certain amount of time prior to trial (usually two to three weeks). If you have not listed a person or an exhibit on your list, you can't call that witness, or present that evidence, period. These lists are important so that each party can understand what the other will be presenting at trial so that they can be sure that the full version is heard by the court. Many cases that are dismissed prior to trial are cases where one party failed to produce the list at all. As a result, it is critical that if you are involved in civil litigation, you meet your witness and exhibit list exchange deadline.
It is worth noting, however, that witnesses and exhibits that have the purpose of "rebuttal or impeachment" are not required to be on these lists. The idea behind the rebuttal exclusion is that you may not know what you need to rebut the other side until you get their list - as a result, since your list is likely due at the same time, any witnesses or exhibits that solely rebut the other side can be left off your list since you might not be aware of them yet. Impeachment is the act of challenging the credibility of a witness. Evidence presented for the purpose of impeachment is not supposed to be considered by the court as evidence relating to the case itself - it is only to be considered evidence of the witness's lack of credibility. Since impeachment challenges a witness's credibility, the impeachment evidence usually needs to be a surprise in order to be effective. This is one case where surprise actually aids the pursuit of the truth, and as such, is allowed.
Failure to State a Claim
The number one cause, in my experience, of cases being dismissed is "failure to state a claim." The motion to dismiss a case on that basis in Virginia is known as a "demurrer." Basically, a demurrer states that if everything stated in the plaintiff's Complaint is true, they still have not stated enough to be entitled to relief. In other words, if you sue someone and your entire Complaint is "Bill is a jerk," you have not stated a claim since "being a jerk" is not something you can sue someone for.
In order to properly state a claim, you must lay out in your Complaint a series of events that, if later proven true, would entitle you to relief (and also state what form of relief you are entitled to). You must state specific facts in your Complaint, not just conclusions. For example, a Complaint stating "Plaintiff signed a contract with defendant, which defendant has now breached," does not sufficiently state a claim for breach of contract. However, "Plaintiff signed a contract with defendant wherein plaintiff would pay defendant $10,000 to replace the roof on plaintiff's house, plaintiff did pay defendant the $10,000, the defendant has never replaced the roof and the time for doing so in the contract is now passed, as such the defendant has breached the contract," does state a claim. The second example lays out specific, potentially verifiable facts that, if all true, would support a claim for breach of contract, while the first just states a conclusion.
The idea behind this rule should be fairly obvious - it is one of fairness. It is not fair to ask a defendant to defend against a lawsuit where he does not actually know what he is defending against! The first example above only tells the defendant he has been accused of breach of contract. It does not say how he supposedly breached the contract, and as a result, he cannot know from that statement if he actually did, and he cannot prepare a proper defense.
So, the way to prevent falling into this trap is fairly simple. Make sure you are claiming something that actually allows you to recover under law, and that you state enough factual allegations in your Complaint that if that's the entirety of what you prove, the judge would say that is enough to win your case.
Suing in the Wrong Place
My last topic for today is the issue of filing suit in the wrong place, also known as "venue." When you file a lawsuit, there are a series of places where you can properly file it, and places you cannot properly file it. While there are some exceptions depending on the type of case, it is virtually always ok to file a lawsuit in the home county or city of the defendant. On the other hand, it is frequently not ok to file a lawsuit in the home county or city of the plaintiff if that home county or city is different from the home county or city of the defendant.
The idea behind this rule is that if you live 500 miles away from the defendant, it is not really fair to drag him to court near you. You are the one choosing to go to court as the plaintiff, it should be on you to suffer the inconvenience. Now, there are all kinds of exceptions to this rule, and only an attorney is going to be able to tell you if your case fits into those exceptions, but if you want to proceed without an attorney, your best bet is to file in the home city or county of the defendant - the exceptions to that being ok are very few.
It is worth noting, however, that in Virginia, venue is not what we call a "jurisdictional" matter. In other words, if you do file in the wrong city or county, it's only an issue if the other side objects, otherwise it will go forward. So, the closer you live to the home city or county of the defendant, the less likely they are to object (but also the less inconvenient it would be for you to file there, so why take the chance?). Nonetheless, by and large, unless you know the venue laws well or you have an attorney who says otherwise, my strong recommendation is to file in the home city or county of the defendant.
Conclusion
Civil litigation is fraught with pitfalls that can lead to early dismissal of your case. Avoiding those pitfalls can be challenging, and the best way to do it is to have an attorney. If you are in need of an attorney to review or conduct your civil litigation, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with my office. Our initial consultations are free for up to half an hour!
Thursday, April 3, 2014
Thursday, March 27, 2014
Bankruptcy: Rendering Judgments Useless Since 1800
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
One day, in the course of your business dealings, you sign a contract with someone. They breach that contract, you sue them and you win a substantial judgment. You've ready my blog post about how to actually collect on a judgment, and filed to garnish the other party's wages. Then, all of the sudden, you receive a notice that the other party has filed for bankruptcy. So, your questions become, what must you do now, and what does the bankruptcy mean for your judgment?
Before I begin this post, I would point out I am not a bankruptcy attorney. As a result, this post will not be getting into the details of every rule and exception that applies in bankruptcy. Nonetheless, there are some rules that every civil litigation attorney must know about bankruptcy, and every person involved in civil litigation should know. I will be covering those today.
The Automatic Stay
The first, and probably most important, thing that you need to do when you get that bankruptcy filing notice is ensure that you are honoring what is known as the "automatic stay." When a person files for bankruptcy, no person is allowed to take any legal action against that person, or any action to collect on a debt against that person (except within the context of the bankruptcy case itself). This is called the "automatic stay" because anything that is already in progress gets stayed (delayed indefinitely).
Now, this is very important to understand because the penalties for violating the automatic stay can be serious. You, yourself, can be fined a substantial amount of money if you knowingly violate the automatic stay. Now, of course, the key word there is "knowingly." You cannot violate the automatic stay until you know about it, so if the bankrupt person fails to ever send you notice, then that's on them. Bankruptcies are rarely filed pro se, however, and any decent bankruptcy attorney is going to make sure every relevant person is notified.
Once you are notified, it is on you to make sure you are not violating the automatic stay, not on the court, not on the bankrupt individual. If you have an ongoing lawsuit against a person, you need to inform the court about the bankruptcy immediately, where the court will then halt the proceedings. In the garnishment example I listed above, that is a legal action to collect on a debt, so you must immediately file with the court to dismiss the garnishment proceedings.
Now, as a practical matter, while I used the word "knowingly," the word actually used in the Bankruptcy Code for violation of the automatic stay is "willingly." This is a bit of an important distinction because this means you can still be ok if you are knowingly violating the automatic stay but that violation is not willful. Say you get the notice while you are horribly ill and can't make it to the courthouse for two weeks to let them know - then your violation of the automatic stay is not willful, and you should be ok. Nonetheless, it is always in your best interest to honor the automatic stay as fast as possible.
Next Steps
Your next step is to monitor the bankruptcy case. The easiest way to do this is to go to http://www.pacer.gov and sign up to get an account. Once you do, you can follow all the filings in the relevant bankruptcy case. This is important, because if the case is dismissed without a "discharge," then the case has no effect on your judgment and you can get right back to your garnishment as soon as the case ends. It will also help you make sure that the debt to you is listed properly (for example, if you have recorded your judgment in the judgment lien docket and the debtor owns real property in the county where you recorded, your judgment should be listed as a secured debt, not an unsecured debt). If you do notice an error with how your judgment is treated, you should contact the debtor's attorney and the bankruptcy trustee to let them know. Chances are the debtor's attorney will amend their "schedules" to get it right. If they don't, however, you may wish to consult with a bankruptcy attorney about challenging the bankruptcy filing.
Should I Attend the Meeting of Creditors?
One thing you will see in your bankruptcy notice is information about a "meeting of creditors." This is a meeting at the bankruptcy trustee's office where creditors can go, if they wish, and ask the debtor questions to try to find out if the debtor has any assets that were not properly disclosed. Unless you know the debtor pretty well and have an idea of questions to ask, attending the meeting of creditors is generally not worth it. For me, in all my time handling collections matters, I've attended a meeting of creditors once.
Should I Object to the Discharge?
Now, one of the toughest decisions to make is whether to let the debt go to discharge, or to fight the discharge of your debt. The fact is, for judgments, most judgments can be and will be discharged, so there is usually little value in fighting your discharge unless you believe you fit into one of the few nondischargeable categories. These include things like your judgment being for unpaid student loans, or a debt accumulated due to fraud of false representation. In the contract example I started with, unless you can prove that the person never intended to pay you when he signed the contract, chances are your debt is fully dischargeable. Nonetheless, this is again an area where you may wish to consult with a bankruptcy attorney before deciding for sure.
Effect of a Discharge on my Judgment
So, let's say you don't object, and the case goes as most individual bankruptcies go - there is no non-exempt property to distribute, and the creditors get nothing, while all debts are discharged. When a debt is discharged, that means it is no longer considered owed, and you cannot attempt to collect it. This is true for judgments regardless of whether or not the judgment was secured by a lien. Once the judgment is discharged, it is (almost, see below) completely uncollectable.
What About the Lien?
So, let's say you're one of those rare judgment creditors who happened to have a judgment debtor who owned real property and you recorded your judgment prior to the bankruptcy filing. That gives you a lien on the debtor's property. Liens are not automatically discharged in bankruptcy, and unless avoided (I will get to that in a moment), your lien will survive the bankruptcy. What that means is, while you cannot take action to collect on your judgment anymore, the lien remains, so when, eventually, the debtor sells his property, he will have to satisfy your lien.
Now, the exception to this rule is if your lien is "avoided" in bankruptcy. Bankruptcy allows a judgment debtor to avoid judicial liens in certain circumstances. Unfortunately, those circumstances are almost always applicable when someone is bankrupt (for example, one of the circumstances is basically having minimal equity in the real property). That being said, the debtor must actively move to avoid the lien, so failing to take that active step allows the lien to remain. Further, there may be grounds for you to oppose the avoidance of your lien, so if such a motion is filed, you should really consult with a bankruptcy attorney.
Conclusion
As an attorney who practices collections law, bankruptcies are generally the bane of my existence. I would estimate anywhere between 30-50% of my collections cases in any given year end with the debtor declaring bankruptcy and my client never seeing a dime as a result. Nonetheless, options do exist to help protect you. If you are involved in a collection and fear a bankruptcy may be coming, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set an initial consultation to see if this a good matter for us to represent you. Our initial consultations are free for up to half an hour!
Introduction
One day, in the course of your business dealings, you sign a contract with someone. They breach that contract, you sue them and you win a substantial judgment. You've ready my blog post about how to actually collect on a judgment, and filed to garnish the other party's wages. Then, all of the sudden, you receive a notice that the other party has filed for bankruptcy. So, your questions become, what must you do now, and what does the bankruptcy mean for your judgment?
Before I begin this post, I would point out I am not a bankruptcy attorney. As a result, this post will not be getting into the details of every rule and exception that applies in bankruptcy. Nonetheless, there are some rules that every civil litigation attorney must know about bankruptcy, and every person involved in civil litigation should know. I will be covering those today.
The Automatic Stay
The first, and probably most important, thing that you need to do when you get that bankruptcy filing notice is ensure that you are honoring what is known as the "automatic stay." When a person files for bankruptcy, no person is allowed to take any legal action against that person, or any action to collect on a debt against that person (except within the context of the bankruptcy case itself). This is called the "automatic stay" because anything that is already in progress gets stayed (delayed indefinitely).
Now, this is very important to understand because the penalties for violating the automatic stay can be serious. You, yourself, can be fined a substantial amount of money if you knowingly violate the automatic stay. Now, of course, the key word there is "knowingly." You cannot violate the automatic stay until you know about it, so if the bankrupt person fails to ever send you notice, then that's on them. Bankruptcies are rarely filed pro se, however, and any decent bankruptcy attorney is going to make sure every relevant person is notified.
Once you are notified, it is on you to make sure you are not violating the automatic stay, not on the court, not on the bankrupt individual. If you have an ongoing lawsuit against a person, you need to inform the court about the bankruptcy immediately, where the court will then halt the proceedings. In the garnishment example I listed above, that is a legal action to collect on a debt, so you must immediately file with the court to dismiss the garnishment proceedings.
Now, as a practical matter, while I used the word "knowingly," the word actually used in the Bankruptcy Code for violation of the automatic stay is "willingly." This is a bit of an important distinction because this means you can still be ok if you are knowingly violating the automatic stay but that violation is not willful. Say you get the notice while you are horribly ill and can't make it to the courthouse for two weeks to let them know - then your violation of the automatic stay is not willful, and you should be ok. Nonetheless, it is always in your best interest to honor the automatic stay as fast as possible.
Next Steps
Your next step is to monitor the bankruptcy case. The easiest way to do this is to go to http://www.pacer.gov and sign up to get an account. Once you do, you can follow all the filings in the relevant bankruptcy case. This is important, because if the case is dismissed without a "discharge," then the case has no effect on your judgment and you can get right back to your garnishment as soon as the case ends. It will also help you make sure that the debt to you is listed properly (for example, if you have recorded your judgment in the judgment lien docket and the debtor owns real property in the county where you recorded, your judgment should be listed as a secured debt, not an unsecured debt). If you do notice an error with how your judgment is treated, you should contact the debtor's attorney and the bankruptcy trustee to let them know. Chances are the debtor's attorney will amend their "schedules" to get it right. If they don't, however, you may wish to consult with a bankruptcy attorney about challenging the bankruptcy filing.
Should I Attend the Meeting of Creditors?
One thing you will see in your bankruptcy notice is information about a "meeting of creditors." This is a meeting at the bankruptcy trustee's office where creditors can go, if they wish, and ask the debtor questions to try to find out if the debtor has any assets that were not properly disclosed. Unless you know the debtor pretty well and have an idea of questions to ask, attending the meeting of creditors is generally not worth it. For me, in all my time handling collections matters, I've attended a meeting of creditors once.
Should I Object to the Discharge?
Now, one of the toughest decisions to make is whether to let the debt go to discharge, or to fight the discharge of your debt. The fact is, for judgments, most judgments can be and will be discharged, so there is usually little value in fighting your discharge unless you believe you fit into one of the few nondischargeable categories. These include things like your judgment being for unpaid student loans, or a debt accumulated due to fraud of false representation. In the contract example I started with, unless you can prove that the person never intended to pay you when he signed the contract, chances are your debt is fully dischargeable. Nonetheless, this is again an area where you may wish to consult with a bankruptcy attorney before deciding for sure.
Effect of a Discharge on my Judgment
So, let's say you don't object, and the case goes as most individual bankruptcies go - there is no non-exempt property to distribute, and the creditors get nothing, while all debts are discharged. When a debt is discharged, that means it is no longer considered owed, and you cannot attempt to collect it. This is true for judgments regardless of whether or not the judgment was secured by a lien. Once the judgment is discharged, it is (almost, see below) completely uncollectable.
What About the Lien?
So, let's say you're one of those rare judgment creditors who happened to have a judgment debtor who owned real property and you recorded your judgment prior to the bankruptcy filing. That gives you a lien on the debtor's property. Liens are not automatically discharged in bankruptcy, and unless avoided (I will get to that in a moment), your lien will survive the bankruptcy. What that means is, while you cannot take action to collect on your judgment anymore, the lien remains, so when, eventually, the debtor sells his property, he will have to satisfy your lien.
Now, the exception to this rule is if your lien is "avoided" in bankruptcy. Bankruptcy allows a judgment debtor to avoid judicial liens in certain circumstances. Unfortunately, those circumstances are almost always applicable when someone is bankrupt (for example, one of the circumstances is basically having minimal equity in the real property). That being said, the debtor must actively move to avoid the lien, so failing to take that active step allows the lien to remain. Further, there may be grounds for you to oppose the avoidance of your lien, so if such a motion is filed, you should really consult with a bankruptcy attorney.
Conclusion
As an attorney who practices collections law, bankruptcies are generally the bane of my existence. I would estimate anywhere between 30-50% of my collections cases in any given year end with the debtor declaring bankruptcy and my client never seeing a dime as a result. Nonetheless, options do exist to help protect you. If you are involved in a collection and fear a bankruptcy may be coming, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set an initial consultation to see if this a good matter for us to represent you. Our initial consultations are free for up to half an hour!
Thursday, March 20, 2014
Another short hiatus
Hi all. Looks like my household has been hit by some form of illness/plague, so as I'm barely able to work at the moment, a blog post just isn't happening. Stay tuned for next week's post, though!
Thursday, March 13, 2014
Appeals in Virginia: A Brief Overview of the Appellate Process in Virginia
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
Most people with even the most basic of knowledge of our court system know that when you lose in a trial court, the option exists to appeal the ruling to the higher court. Unfortunately, most people's knowledge starts and ends there. Many people do not know when to appeal, to what court to appeal, or how an appeal actually functions. I hope to begin to discuss that today.
The topic of appellate litigation is very complicated, and will probably warrant many posts from me. For my first post on the topic, however, I wanted to do a quick and dirty overview. As a result, know that this post is very limited in terms of what it covers. Today I will be covering what you appeal to what court, what kind of lawyer you need in each court, what kind of hearing or trial will happen at the appellate level, and appeal bonds (an amount you have to pay to appeal). I will also cover the difference between appeals "of right" and "petitions for appeal."
What Kind of Attorney Should I Have?
While it may not be obvious, not every trial attorney actually practices appellate litigation. Moreover, there are many rules and procedures in the various appellate courts that would make it very dangerous to hire an attorney who does not have much experience in appellate practice. As a result, it may be worth it to consider hiring someone who actually calls themselves an appellate litigator. There are two kinds of appellate litigators - ones who exclusively do appeals, and ones who regularly do appeals, but also do trials. The ones who exclusively do appeals will generally know the ins and outs of the appellate system better. The ones who do both will have less thorough knowledge of the appellate litigation system, but still usually enough to get through the pitfalls, and can bring the benefit of knowing more about the specific fields of law in which they do trial practice.
As an attorney who practices both appellate and trial litigation, I will admit to being biased in favor of such attorneys. Nonetheless, some of the exclusively appellate litigation attorneys I know are unbelievably good at what they do - and best of all, if it's an area of law they are unfamiliar with, they'll usually tell you up front. Ultimately, you have to decide what is best for you.
As a final note, I am discussing here appeals to the Court of Appeals and Supreme Court of Virginia, not appeals to the Circuit Court, for reasons that will become obvious below.
Who Appeals to What Court?
As you may glean from above, in Virginia we have three courts that can be considered "appellate courts" - your local Circuit Court, the Virginia Court of Appeals, and the Supreme Court of Virginia. Hovering over them all, of course, is also the U.S. Supreme Court.
Practically any judgment can be appealed. There are exceptions, and the rule that a judgment must be "final" (a rule probably worthy of its own post) before it can be appealed make some rulings practically unappealable, but at the end of a case, you can pretty much always file an appeal. Appeals go as follows:
Any criminal or civil case from the Juvenile and Domestic Relations District Court gets appealed to the local Circuit Court. Any criminal case from the General District Court gets appealed to the local Circuit Court. Any civil case from the General District Court, where there is a difference of at least $50 between what the appellant wants and what was awarded, gets appealed to the local Circuit Court. Any decision by a Virginia or local administrative agency (not including the Workers Compensation Commission) gets appealed to the local Circuit Court.
Any criminal case except for death penalty cases in the Circuit Court gets appealed to the Court of Appeals. Domestic Relations (family law) cases in the Circuit Court get appealed to the Court of Appeals. Decisions by the Circuit Court on appeals of administrative agency rulings get appealed to the Court of Appeals. Any decision by a Circuit Court regarding the medical or mental health treatment of a prisoner gets appealed to the Court of Appeals. Some decisions by the Circuit Court relating to religious freedom issues get appealed to the Court of Appeals. Finally, any ruling from the Workers Compensation Commissions gets appealed to the Court of Appeals.
Any imposition of the death penalty in the Circuit Court gets appealed to the Virginia Supreme Court. All civil cases in the Circuit Court other than domestic relations (family law), administrative agency appeals, and prisoner health treatment decisions get appealed to the Virginia Supreme Court. Finally, all decisions by the Court of Appeals can be appealed to the Virginia Supreme Court.
Lastly, any Virginia Supreme Court decision, Court of Appeals decision where a petition of appeal was denied by the Virginia Supreme Court, or Circuit Court decision where a petition of appeal was denied by the Court of Appeals and/or Virginia Supreme Court, can be appealed to the United States Supreme Court.
Appeal "of Right" vs. "Petition for Appeal"
So, reading the above, you might think our appellate courts get somewhat flooded by appeals. This is not the case, however, because many appeals are not appeals "of right," but rather petition appeals. An appeal of right is an appeal that the appellate court must hear - so they get a full blown appeal in front of them. A petition for appeal, however, allows the court to decide, usually based on the decision of a small number of judges, whether or not a case warrants hearing a full appeal. The denial of a petition, then, has no precedential value for the future, and does not mean the appellate court is saying the lower court got it right - just that it does not wish to hear the appeal.
So, which cases are appeals "of right" versus "petitions"? The basic breakdown for that is as follows:
All appeals to the local Circuit Court are appeals of right.
Appeals to the Court of Appeals of domestic relations cases, administrative agency decisions, and appeals from the Workers Compensation Commissions are appeals of right. All other appeals to the Court of Appeals (including criminal convictions) are petition appeals.
Appeals to the Virginia Supreme Court from the imposition of the death penalty are appeals of right. All other appeals to the Virginia Supreme Court (including non-domestic relations civil cases) are petition appeals. It's also worth noting that in order for a petition for appeal from the Court of Appeals to the Virginia Supreme Court to be granted, the Virginia Supreme Court must additionally find that the issue from the Court of Appeals is one of significant importance and precedential value to Virginia law - so Court of Appeals cases are very rarely successfully appealed to the Virginia Supreme Court.
Finally, while the system is not identical federally, the United States Supreme Court is almost entirely a "petition" type system. They hear less than 1% of all cases appealed to them, so your chances of getting heard are pretty slim. Moreover, you have to have an issue relating to federal law (so not "the court is misinterpreting this state law") to even get considered by the Supreme Court.
Types of Appellate Hearings
So, the next question to consider is - what kind of hearing will there be on appeal? Appeals to the United States Supreme Court, Virginia Supreme Court, and Court of Appeals are very similar. An attorney will appear before a panel of judges and make arguments for a set period of time. Evidence will not be taken, witnesses will not be on the stand - usually the clients aren't even there. This is one of the reasons why having an appellate litigator as your attorney - it requires a different skill set than a trial litigator.
Appeals to the Circuit Court are different. These appeals are called trials "de novo." In other words, you have a whole new trial in the Circuit Court. The Circuit Court is not even supposed to be told what happened in the lower court (though usually they can figure it out) and nothing from the lower court can be used as evidence, except for prior inconsistent statements if a witness says something in the Circuit Court after having said something different below. This is why continuing to have a trial lawyer at the Circuit Court generally makes sense.
Appeal Bonds
One of the realities of the modern court system is that our court administrators, legislators, and just about everyone else wants to decrease the volumes of cases. As a result, we have a built-in system that helps discourage appeals, but also strongly favors plaintiffs over defendants in civil cases. This is the appeal bond system.
In any appeal, you must pay an appeal bond. This is money paid to the court so that it is available if the court rules against you on appeal. For plaintiffs, this bond is usually pretty low - about $100-200 in appeals to the Circuit Court, and $500 in appeals to the Court of Appeals and Virginia Supreme Court. For defendants, however, they generally have to pay the full amount they were ordered to pay by the lower court in appeals to the Circuit Court (if you just lost a child support ruling, for example, which found you now owed an arrearage of $50,000, you've got to come up with $50,000 to appeal that ruling). Appeals to the Court of Appeals and Virginia Supreme Court can still be bonded at $500, but that does not suspend the lower court order (so garnishment of your wages can still happen). If you want to actually suspend the order, you again have to come up with the full amount.
Conclusion
Today's post covered some of the very basics in appellate litigation in Virginia. In the future I hope to delve into more detail about the various types of appeals to the various courts. If you are planning to file an appeal, or defending against an appeal, and would like some legal assistance, 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!
Introduction
Most people with even the most basic of knowledge of our court system know that when you lose in a trial court, the option exists to appeal the ruling to the higher court. Unfortunately, most people's knowledge starts and ends there. Many people do not know when to appeal, to what court to appeal, or how an appeal actually functions. I hope to begin to discuss that today.
The topic of appellate litigation is very complicated, and will probably warrant many posts from me. For my first post on the topic, however, I wanted to do a quick and dirty overview. As a result, know that this post is very limited in terms of what it covers. Today I will be covering what you appeal to what court, what kind of lawyer you need in each court, what kind of hearing or trial will happen at the appellate level, and appeal bonds (an amount you have to pay to appeal). I will also cover the difference between appeals "of right" and "petitions for appeal."
What Kind of Attorney Should I Have?
While it may not be obvious, not every trial attorney actually practices appellate litigation. Moreover, there are many rules and procedures in the various appellate courts that would make it very dangerous to hire an attorney who does not have much experience in appellate practice. As a result, it may be worth it to consider hiring someone who actually calls themselves an appellate litigator. There are two kinds of appellate litigators - ones who exclusively do appeals, and ones who regularly do appeals, but also do trials. The ones who exclusively do appeals will generally know the ins and outs of the appellate system better. The ones who do both will have less thorough knowledge of the appellate litigation system, but still usually enough to get through the pitfalls, and can bring the benefit of knowing more about the specific fields of law in which they do trial practice.
As an attorney who practices both appellate and trial litigation, I will admit to being biased in favor of such attorneys. Nonetheless, some of the exclusively appellate litigation attorneys I know are unbelievably good at what they do - and best of all, if it's an area of law they are unfamiliar with, they'll usually tell you up front. Ultimately, you have to decide what is best for you.
As a final note, I am discussing here appeals to the Court of Appeals and Supreme Court of Virginia, not appeals to the Circuit Court, for reasons that will become obvious below.
Who Appeals to What Court?
As you may glean from above, in Virginia we have three courts that can be considered "appellate courts" - your local Circuit Court, the Virginia Court of Appeals, and the Supreme Court of Virginia. Hovering over them all, of course, is also the U.S. Supreme Court.
Practically any judgment can be appealed. There are exceptions, and the rule that a judgment must be "final" (a rule probably worthy of its own post) before it can be appealed make some rulings practically unappealable, but at the end of a case, you can pretty much always file an appeal. Appeals go as follows:
Any criminal or civil case from the Juvenile and Domestic Relations District Court gets appealed to the local Circuit Court. Any criminal case from the General District Court gets appealed to the local Circuit Court. Any civil case from the General District Court, where there is a difference of at least $50 between what the appellant wants and what was awarded, gets appealed to the local Circuit Court. Any decision by a Virginia or local administrative agency (not including the Workers Compensation Commission) gets appealed to the local Circuit Court.
Any criminal case except for death penalty cases in the Circuit Court gets appealed to the Court of Appeals. Domestic Relations (family law) cases in the Circuit Court get appealed to the Court of Appeals. Decisions by the Circuit Court on appeals of administrative agency rulings get appealed to the Court of Appeals. Any decision by a Circuit Court regarding the medical or mental health treatment of a prisoner gets appealed to the Court of Appeals. Some decisions by the Circuit Court relating to religious freedom issues get appealed to the Court of Appeals. Finally, any ruling from the Workers Compensation Commissions gets appealed to the Court of Appeals.
Any imposition of the death penalty in the Circuit Court gets appealed to the Virginia Supreme Court. All civil cases in the Circuit Court other than domestic relations (family law), administrative agency appeals, and prisoner health treatment decisions get appealed to the Virginia Supreme Court. Finally, all decisions by the Court of Appeals can be appealed to the Virginia Supreme Court.
Lastly, any Virginia Supreme Court decision, Court of Appeals decision where a petition of appeal was denied by the Virginia Supreme Court, or Circuit Court decision where a petition of appeal was denied by the Court of Appeals and/or Virginia Supreme Court, can be appealed to the United States Supreme Court.
Appeal "of Right" vs. "Petition for Appeal"
So, reading the above, you might think our appellate courts get somewhat flooded by appeals. This is not the case, however, because many appeals are not appeals "of right," but rather petition appeals. An appeal of right is an appeal that the appellate court must hear - so they get a full blown appeal in front of them. A petition for appeal, however, allows the court to decide, usually based on the decision of a small number of judges, whether or not a case warrants hearing a full appeal. The denial of a petition, then, has no precedential value for the future, and does not mean the appellate court is saying the lower court got it right - just that it does not wish to hear the appeal.
So, which cases are appeals "of right" versus "petitions"? The basic breakdown for that is as follows:
All appeals to the local Circuit Court are appeals of right.
Appeals to the Court of Appeals of domestic relations cases, administrative agency decisions, and appeals from the Workers Compensation Commissions are appeals of right. All other appeals to the Court of Appeals (including criminal convictions) are petition appeals.
Appeals to the Virginia Supreme Court from the imposition of the death penalty are appeals of right. All other appeals to the Virginia Supreme Court (including non-domestic relations civil cases) are petition appeals. It's also worth noting that in order for a petition for appeal from the Court of Appeals to the Virginia Supreme Court to be granted, the Virginia Supreme Court must additionally find that the issue from the Court of Appeals is one of significant importance and precedential value to Virginia law - so Court of Appeals cases are very rarely successfully appealed to the Virginia Supreme Court.
Finally, while the system is not identical federally, the United States Supreme Court is almost entirely a "petition" type system. They hear less than 1% of all cases appealed to them, so your chances of getting heard are pretty slim. Moreover, you have to have an issue relating to federal law (so not "the court is misinterpreting this state law") to even get considered by the Supreme Court.
Types of Appellate Hearings
So, the next question to consider is - what kind of hearing will there be on appeal? Appeals to the United States Supreme Court, Virginia Supreme Court, and Court of Appeals are very similar. An attorney will appear before a panel of judges and make arguments for a set period of time. Evidence will not be taken, witnesses will not be on the stand - usually the clients aren't even there. This is one of the reasons why having an appellate litigator as your attorney - it requires a different skill set than a trial litigator.
Appeals to the Circuit Court are different. These appeals are called trials "de novo." In other words, you have a whole new trial in the Circuit Court. The Circuit Court is not even supposed to be told what happened in the lower court (though usually they can figure it out) and nothing from the lower court can be used as evidence, except for prior inconsistent statements if a witness says something in the Circuit Court after having said something different below. This is why continuing to have a trial lawyer at the Circuit Court generally makes sense.
Appeal Bonds
One of the realities of the modern court system is that our court administrators, legislators, and just about everyone else wants to decrease the volumes of cases. As a result, we have a built-in system that helps discourage appeals, but also strongly favors plaintiffs over defendants in civil cases. This is the appeal bond system.
In any appeal, you must pay an appeal bond. This is money paid to the court so that it is available if the court rules against you on appeal. For plaintiffs, this bond is usually pretty low - about $100-200 in appeals to the Circuit Court, and $500 in appeals to the Court of Appeals and Virginia Supreme Court. For defendants, however, they generally have to pay the full amount they were ordered to pay by the lower court in appeals to the Circuit Court (if you just lost a child support ruling, for example, which found you now owed an arrearage of $50,000, you've got to come up with $50,000 to appeal that ruling). Appeals to the Court of Appeals and Virginia Supreme Court can still be bonded at $500, but that does not suspend the lower court order (so garnishment of your wages can still happen). If you want to actually suspend the order, you again have to come up with the full amount.
Conclusion
Today's post covered some of the very basics in appellate litigation in Virginia. In the future I hope to delve into more detail about the various types of appeals to the various courts. If you are planning to file an appeal, or defending against an appeal, and would like some legal assistance, 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!
Thursday, March 6, 2014
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:
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!
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:
- The second birth parent or adoptive parent is dead,
- The second birth parent or adoptive parent consents to the adoption,
- The second birth parent is the father of the child and he denies paternity,
- 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,
- The child is the result of surrogacy and the second birth parent consents to the adoption,
- 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,
- The child is at least 14 years old and has lived in the step-parent's home for at least five years, or
- 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.
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!
Thursday, February 27, 2014
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:
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!
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:
- 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."
- The rules must be reasonably related to their purpose.
- The rules must apply to all tenants equally, or at least in a manner that is fair.
- The rules must be clear, not vague.
- The rules must not be a means of the landlord to avoid the landlord's regular obligations.
- The tenant(s) must actually be given a copy of the rules.
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!
Wednesday, February 19, 2014
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!
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!
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