Today's Classic Blog Posts discuss the legal rights and responsibilities of both "landlords" and "tenants" when someone lives in someone else's house by invitation (be it a grown child living with his parents, an unmarried couple living in a house in only one person's name, etc.). It was originally posted on July 25, 2013 and titled "When Living With Your Parents Goes Bad - Tenancies at Will and the Law."
Where I felt it needed, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete. [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime. For more on that process, you can read my post about protective orders.]
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Tuesday, July 15, 2014
Thursday, July 10, 2014
When a Virginia attorney misbehaves: Reporting attorneys to the Bar
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.
How to Tell if an Attorney is Acting Unethically
The biggest issue preventing most people from recognizing if an attorney is acting improperly is the difficulty of distinguishing between behavior that seems wrong to you, but is actually just the attorney zealously advocating for his client, and behavior that actually violates the Rules of Professional Conduct. Obviously, the easiest way to tell if a lawyer is acting unethically would be for you to learn the entire Rules of Professional Conduct, but that's probably unrealistic for most of you. The next best thing, then, would be if you see a lawyer do something you think might be improper, then go to the link I just provided and check the rules.
That being said, there are some fairly basic rules you should know regardless. These are the rules I see violated most often:
Ok, so then what?
So, once you see what you think is an ethics violation, you need to report it to the Virginia State Bar. First, gather as much information as you can about the attorney (most importantly - name, office address, and, if possible, State Bar number). Then, go to the Virginia State Bar home page (http://www.vsb.org), and at the top under "professional regulation" scroll down to "how to file a misconduct inquiry about a lawyer" then click on the "inquiry form." You can also get to the form by just clicking on this link. From there, fill out and follow all the instructions on the form. If your complaint is longer than the space provided, you can attach a letter laying out your complaint. Then send it to the State Bar (address is listed on the form) and they take it from there.
So, what is the process?
Well, first the Bar will review to see if the State Bar has jurisdiction (checking to make sure the attorney is actually a Virginia attorney, for example). If not, the complaint is dismissed. If so, then the complaint is forwarded to Bar Counsel (an attorney for the State Bar) and a file is opened. Bar Counsel will then review the complaint to see if the conduct alleged would actually indicate a rule violation if completely true. If not, the complaint is dismissed, but if so, then a preliminary investigation begins. Bar Counsel may ask the complainant for more information to make this determination.
At the preliminary investigation stage, the lawyer is sent the complaint and given an opportunity to respond. If the lawyer responds, that response is sent to the complainant and the complainant can reply to it. Once the complainant replies (or the time to do so has expired), the Bar Counsel will review the pleadings for basically what is "in play" (essentially all facts in the complaint not denied by the answer, all facts in the complaint denied by the answer but which denial was challenged by the complainant's reply, and all claims in the answer which were not disputed by the complainant's reply). If those "in play" facts no longer support a rule violation, then the complaint is dismissed. If they do, then a further investigation is ordered.
The full investigation will involve Bar Counsel interviewing witnesses (the complainant, the lawyer, anyone named as a witness by either, etc.), seeking documentary evidence, etc. At the end of the investigation, the Bar Counsel will send the investigation results to a local committee to review and decide if there is sufficient evidence of a rule violation to continue. If not, the complaint is dismissed, if so, a hearing is held. If, after the hearing, a rule violation is found by "clear and convincing evidence," the attorney will be penalized accordingly. There are then appeals that can follow.
Complainant's Role
As you can guess, then, your role may not end with the filing of a complaint. You will be notified of the disposition of any complaint you file, but if there is a response filed by the attorney, you will likely need to file a reply for your response to not be dismissed. Further, you will likely have to give a statement to Bar Counsel during the investigation, and you may have to testify at the hearing. Otherwise, however, most of the work is undertaken by the Bar.
Introduction
I have written before about my opinion that most attorneys are ethical, honest people, despite the reputation to the contrary. Nonetheless, as in any profession, there are always bad apples. Lawyers have a very extensive system set up to root out the bad apples, but it only works when those who become aware of a lawyer's misbehavior are ready to speak up. In the right circumstances, a misbehaving attorney can be reprimanded (privately or publicly), suspended, or even disbarred, meaning that attorney likely can never practice law again. In light of the role that "victims" or other witnesses play in attorney discipline, it is important that everyone knows how to spot an unethical attorney, and what to do if you learn of one. This blog post will cover some of the basics.How to Tell if an Attorney is Acting Unethically
The biggest issue preventing most people from recognizing if an attorney is acting improperly is the difficulty of distinguishing between behavior that seems wrong to you, but is actually just the attorney zealously advocating for his client, and behavior that actually violates the Rules of Professional Conduct. Obviously, the easiest way to tell if a lawyer is acting unethically would be for you to learn the entire Rules of Professional Conduct, but that's probably unrealistic for most of you. The next best thing, then, would be if you see a lawyer do something you think might be improper, then go to the link I just provided and check the rules.
That being said, there are some fairly basic rules you should know regardless. These are the rules I see violated most often:
- Competence - if a lawyer is not competent in an area of law, and cannot reasonably become competent in a short period of time, he should not take your case in that area
- Communication with client - a lawyer should keep his client reasonably updated on the status of a case, and respond to requests for information with a reasonable level of promptness; a lawyer must inform his client of all settlement offers received
- Fees - a lawyer must charge only reasonable fees and the fees must accurately reflect the amount of work done
- Privilege - a lawyer must not violate attorney-client privilege except where allowed (or required) by law
- Conflicts - a lawyer must inform his client of all potential conflicts of interest and receive his client's express approval to continue representation (sometimes even then the lawyer must not continue the representation); this rule also applies to some degree to former clients and former potential clients
- Frivolity - a lawyer may not bring a claim or defense he knows is frivolous (note that a claim brought despite clear, controlling contrary case law may not be frivolous if the lawyer is seeking to overturn that case law)
- Honesty - a lawyer may not knowingly make a false statement to anyone in the course of his representation of his client; a lawyer may not present to a court evidence that the lawyer knows to be false, even if doing so does not require the lawyer himself to lie; if a lawyer knows that a witness is committing perjury, the lawyer must take all reasonable action to prevent the perjury from continuing, even if that witness is the lawyer's own client
- Witness/evidence tampering - a lawyer must not destroy or assist in the destruction of evidence; a lawyer must not advise a non-party witness not to appear at a hearing or take other action to discourage that witness from appearing
- Ex Parte Communication - a lawyer may not communicate with a juror except as permitted by law; a lawyer may not communicate orally with a judge outside open court about the substance of a case without opposing counsel being present (or having had an opportunity to be present); a lawyer may not communicate in writing with a judge about the substance of a case without sending a copy of such communication to opposing counsel
- Witness - a lawyer may not take a case in which he reasonably believes he will be a necessary, substantive witness
- Communication with opposing parties - a lawyer may not communicate with an opposing party about the matter at issue if that party is represented by an attorney unless the other attorney has expressly authorized the communication; a lawyer may communicate with an opposing party who is not represented, but that lawyer must make clear that he is not "disinterested" and that lawyer cannot give any advice other than advice to hire an attorney
- Safeguarding property - a lawyer may not take for himself any money in a client's trust account for any purpose other than payment of that client's bill owed properly to the lawyer
- Criminal conduct - a lawyer cannot commit any crime (while "on the clock" or "off the clock") that reflects poorly on the lawyer's honesty, trustworthiness or fitness to practice law; if a lawyer sees a judge violating the law, the lawyer cannot assist the judge in doing so
- Advertising - any written legal advertisement sent to directly to anyone other than a former client must have the words "ATTORNEY ADVERTISING MATERIAL" on the front of the envelope; all statements in advertising must be true and not misleading (which excludes nearly all subjective statements); advertisements referring to specific case results must include certain disclaimers about the unreliability of using such case results to pick a lawyer; a lawyer must not continue to solicit business from someone who has stated a request to no longer be solicited
Ok, so then what?
So, once you see what you think is an ethics violation, you need to report it to the Virginia State Bar. First, gather as much information as you can about the attorney (most importantly - name, office address, and, if possible, State Bar number). Then, go to the Virginia State Bar home page (http://www.vsb.org), and at the top under "professional regulation" scroll down to "how to file a misconduct inquiry about a lawyer" then click on the "inquiry form." You can also get to the form by just clicking on this link. From there, fill out and follow all the instructions on the form. If your complaint is longer than the space provided, you can attach a letter laying out your complaint. Then send it to the State Bar (address is listed on the form) and they take it from there.
So, what is the process?
Well, first the Bar will review to see if the State Bar has jurisdiction (checking to make sure the attorney is actually a Virginia attorney, for example). If not, the complaint is dismissed. If so, then the complaint is forwarded to Bar Counsel (an attorney for the State Bar) and a file is opened. Bar Counsel will then review the complaint to see if the conduct alleged would actually indicate a rule violation if completely true. If not, the complaint is dismissed, but if so, then a preliminary investigation begins. Bar Counsel may ask the complainant for more information to make this determination.
At the preliminary investigation stage, the lawyer is sent the complaint and given an opportunity to respond. If the lawyer responds, that response is sent to the complainant and the complainant can reply to it. Once the complainant replies (or the time to do so has expired), the Bar Counsel will review the pleadings for basically what is "in play" (essentially all facts in the complaint not denied by the answer, all facts in the complaint denied by the answer but which denial was challenged by the complainant's reply, and all claims in the answer which were not disputed by the complainant's reply). If those "in play" facts no longer support a rule violation, then the complaint is dismissed. If they do, then a further investigation is ordered.
The full investigation will involve Bar Counsel interviewing witnesses (the complainant, the lawyer, anyone named as a witness by either, etc.), seeking documentary evidence, etc. At the end of the investigation, the Bar Counsel will send the investigation results to a local committee to review and decide if there is sufficient evidence of a rule violation to continue. If not, the complaint is dismissed, if so, a hearing is held. If, after the hearing, a rule violation is found by "clear and convincing evidence," the attorney will be penalized accordingly. There are then appeals that can follow.
Complainant's Role
As you can guess, then, your role may not end with the filing of a complaint. You will be notified of the disposition of any complaint you file, but if there is a response filed by the attorney, you will likely need to file a reply for your response to not be dismissed. Further, you will likely have to give a statement to Bar Counsel during the investigation, and you may have to testify at the hearing. Otherwise, however, most of the work is undertaken by the Bar.
Conclusion
The Bar disciplinary process is very important to ensuring the integrity of the legal profession. As a non-lawyer, you can help this system work by reporting unethical conduct you encounter from attorneys.Thursday, July 3, 2014
Proving Adultery in Virginia Divorce Cases
As always, before reading this post, please review our disclaimer by following the link above or by clicking on this link. As always, legal principles I discuss apply only to the Commonwealth of Virginia.
Update: Some portions of this blog post are outdated due to changes in the law since this post was first made. Please see my 2020 relevant changes in the law post for details.
Introduction
Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia. Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period. Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property. If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award. Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.
Proving adultery, however, remains challenging. Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt." Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove. Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.
Confessions
Obviously, the fastest way to prove adultery is by having the adulterer confess. Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is. Also obviously, this is not an easy thing to do. If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?
Moreover, in Virginia we have another problem. Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor. This means that, when pressed, an accused adulterer has the ability to plead the fifth. In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.
Now, there is a potential, but imperfect, way around the fifth amendment issue. Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year. Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago. Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.
In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.
Paramour
The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself. I've been surprised in my work how often the paramour actually is willing to testify. Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.
Now, a paramour's testimony is not inherently considered reliable by the court. If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult. Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom. Nonetheless, if the paramour can back up the story, you've got a very strong case.
Obviously, there are obstacles here too. Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth. Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully. Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony. And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).
Circumstantial Evidence
If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence. Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win. If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?
Obviously, some circumstantial evidence is more powerful than others. If your husband is named as the father on the birth certificate of another woman's baby, for example. I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen. However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.
Of course, you might be thinking "how would I know?" Beyond credit card bills and phone records, a private investigator is frequently the best way to find out. A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence. Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.
Conclusion
Adultery still plays a large role in family law, even in our current no-fault era. Proving adultery, however, is very difficult, and takes some level of expertise. If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour.
Update: Some portions of this blog post are outdated due to changes in the law since this post was first made. Please see my 2020 relevant changes in the law post for details.
Introduction
Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia. Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period. Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property. If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award. Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.
Proving adultery, however, remains challenging. Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt." Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove. Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.
Confessions
Obviously, the fastest way to prove adultery is by having the adulterer confess. Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is. Also obviously, this is not an easy thing to do. If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?
Moreover, in Virginia we have another problem. Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor. This means that, when pressed, an accused adulterer has the ability to plead the fifth. In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.
Now, there is a potential, but imperfect, way around the fifth amendment issue. Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year. Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago. Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.
In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.
Paramour
The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself. I've been surprised in my work how often the paramour actually is willing to testify. Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.
Now, a paramour's testimony is not inherently considered reliable by the court. If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult. Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom. Nonetheless, if the paramour can back up the story, you've got a very strong case.
Obviously, there are obstacles here too. Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth. Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully. Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony. And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).
Circumstantial Evidence
If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence. Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win. If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?
Obviously, some circumstantial evidence is more powerful than others. If your husband is named as the father on the birth certificate of another woman's baby, for example. I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen. However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.
Of course, you might be thinking "how would I know?" Beyond credit card bills and phone records, a private investigator is frequently the best way to find out. A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence. Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.
Conclusion
Adultery still plays a large role in family law, even in our current no-fault era. Proving adultery, however, is very difficult, and takes some level of expertise. If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour.
Tuesday, July 1, 2014
Classic Law is Your Friend: VRLTA vs. Virginia Common Law Leases
Today's Classic Blog Post covers how to tell whether your lease is covered by the Virginia Residential Landlord and Tenant Act or the common law, and some of why that matters. It was originally posted on May 20, 2013 and titled "VRLTA or not VRLTA: Your Lease and the Law."
Please note this post was updated from its original posting to reflect some recent changes in the law.
As always, before reading this post I encourage you to review my disclaimer by clicking on the link at the top of the page, or by following this link.
Introduction
At some point or another, the vast majority of us are going to live in a home or apartment that we have rented. Be it off-campus housing in college, our first home when we start working, or longer-term housing, almost everyone rents at some point in time. When we rent, we do so under a contract known as a lease. A lease can be written, oral, or implied, but a lease does exist in every rental situation whether you know it or not. Most leases, however, are written, and you should be very hesitant about entering into any rental arrangement without having a written lease.
A lease is a very important contract, and affects your rights dramatically. Moreover, leases can be very long, very confusing, and perhaps most importantly, it is entirely possible that you will have a lease which has provisions that are actually not legally applicable. As a result, it is important to not only read your lease thoroughly, but to also know the law before you sign your lease. Unfortunately, few people take both of these steps. Leases are frequently written to benefit the landlord, and there is nothing illegal about writing invalid provisions into a lease - as a result, many landlords do this to discourage tenants from protecting their rights.
Landlord/tenant law, especially in Virginia, is a very complex topic, and I would be foolish to try to cover it all in one blog post (or even two, three or four posts). As a result, my goals with this post are much more limited. Specifically, I hope to help you identify which laws apply to your lease and which don't and how that affects your rights. I will do future posts covering related matters.
VRLTA vs. Common Law/Title 55 - Chapter 13
Chapter 13.2 of Title 55 of the Code of Virginia is called the Virginia Residential Landlord and Tenant Act (or VRLTA), which was passed in 1974 in order to simplify some elements of residential rentals. Many people mistakenly believe that VRLTA's purpose was to protect tenants. While it is true that VRLTA has many protections built in for tenants that did not exist prior to VRLTA's implementation, there are also actually a number of provisions that make it easier for a landlord to evict tenants as well. VRLTA really just streamlines and simplifies landlord/tenant disputes - it does not particularly favor one side or the other.
VRLTA does not apply to all leases, however. Specifically, leases are not covered by VRLTA in the following situations:
The last provision is confusing, so let me spell it out a little more clearly. Basically, if you are renting from a person (not a corporation, LLC, etc.), the VRLTA does not apply unless that person owns three or more single-family residences, including the one you are renting, which he or she is renting out.
Why it Matters
If the VRLTA does not apply, then you are subject to the Common Law (law made by judges over the centuries), as altered by Chapter 13 of Title 55 of the Code of Virginia. The reason this matters is that the two sets of laws are very different. Perhaps the most important difference, however, is that VRLTA has section 55-248.9. That section prohibits certain provisions from being in a lease, and amongst those provisions is any provision in which the tenant waives any of his or her rights under the VRLTA. Chapter 13 of Title 55 has no equivalent provision. In other words, unless the specific code provision says otherwise, any provision of Chapter 13 of Title 55 can be waived by the lease.
I cannot count the number of times I have had someone come running to me with something horrible their landlord has done. I will find where the landlord has no responsibility for this in the lease, the tenant will show me the provision of the law that gives the landlord responsibility, and I will have to explain that, since it's not a VRLTA lease, the lease provision actually wins. Or, I will have someone with a non-VRLTA lease who found a great legal provision in the VRLTA. So, as a general rule, if you are researching Virginia landlord/tenant law and you find a provision, check out the section number. If it is section number 55-248.x or 55-248.xx, you are reading a VRLTA provision. If it is between 55-217 and 55-248 (no decimal point), it is a Chapter 13 provision (but again, remember, unless that provision says otherwise, that provision is waivable in the lease).
Exception
Now, there is one big exception to all that I have laid out above. There is a way to make your non-VRLTA lease into a VRLTA lease, and thus open up all of the VRLTA options to you. Section 55-248.5(B) specifically allows the lease itself to declare that it is to be governed by VRLTA, even if the rental situation is one that fits into one of the categories that would normally be excluded from VRLTA coverage. If you would prefer to have your lease governed by the VRLTA, you can ask for such a provision, and if included in the lease, the VRLTA would apply. Just remember, the VRLTA is a double-edged sword - it provides additional protections for tenants, but also provides additional protections for landlords as well.
How to find the Law
So, now that you know which law applies to your lease, you might wonder how you find that law. The simplest way without following links on the blog is to go to a search engine, search for "Code of Virginia," go to the Table of Contents, then click on Title 55, then click on either Chapter 13 or Chapter 13.2 for whichever applies to your lease. For simplicity, however, you can click on my links here to find Chapter 13 or the VRLTA.
Conclusion
As I stated at the beginning, leases are a major topic. Look at how long this blog post is, and all that I've done is help you figure out which laws apply to your lease! If you would like to have an attorney review your lease before you sign it, or answer your questions about the law and its applicability to your lease (and what it really means to you), or if you are engaged in a landlord/tenant dispute now and would like an attorney to assist you, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with me - the consultation is free for up to half an hour!
Please note this post was updated from its original posting to reflect some recent changes in the law.
As always, before reading this post I encourage you to review my disclaimer by clicking on the link at the top of the page, or by following this link.
Introduction
At some point or another, the vast majority of us are going to live in a home or apartment that we have rented. Be it off-campus housing in college, our first home when we start working, or longer-term housing, almost everyone rents at some point in time. When we rent, we do so under a contract known as a lease. A lease can be written, oral, or implied, but a lease does exist in every rental situation whether you know it or not. Most leases, however, are written, and you should be very hesitant about entering into any rental arrangement without having a written lease.
A lease is a very important contract, and affects your rights dramatically. Moreover, leases can be very long, very confusing, and perhaps most importantly, it is entirely possible that you will have a lease which has provisions that are actually not legally applicable. As a result, it is important to not only read your lease thoroughly, but to also know the law before you sign your lease. Unfortunately, few people take both of these steps. Leases are frequently written to benefit the landlord, and there is nothing illegal about writing invalid provisions into a lease - as a result, many landlords do this to discourage tenants from protecting their rights.
Landlord/tenant law, especially in Virginia, is a very complex topic, and I would be foolish to try to cover it all in one blog post (or even two, three or four posts). As a result, my goals with this post are much more limited. Specifically, I hope to help you identify which laws apply to your lease and which don't and how that affects your rights. I will do future posts covering related matters.
VRLTA vs. Common Law/Title 55 - Chapter 13
Chapter 13.2 of Title 55 of the Code of Virginia is called the Virginia Residential Landlord and Tenant Act (or VRLTA), which was passed in 1974 in order to simplify some elements of residential rentals. Many people mistakenly believe that VRLTA's purpose was to protect tenants. While it is true that VRLTA has many protections built in for tenants that did not exist prior to VRLTA's implementation, there are also actually a number of provisions that make it easier for a landlord to evict tenants as well. VRLTA really just streamlines and simplifies landlord/tenant disputes - it does not particularly favor one side or the other.
VRLTA does not apply to all leases, however. Specifically, leases are not covered by VRLTA in the following situations:
- residence at a public or private "institution" (college dorms, prison, hospital, old age home, etc.) when residence there is due to "detention or the provision of medical, geriatric, educational, counseling, religious or similar services"
- occupancy in a home that the tenant has purchased prior to the settlement on the sale of the home
- residence in a sorority or fraternity house by a member of that sorority or fraternity
- occupancy in a motel, hotel, vacation cottage, etc. unless leased for more than 30 straight days to the same person
- occupancy by the landlord's employee (or ex-employee for up to 60 days after the end of employment) when the right to occupancy is conditioned on continued employment
- occupancy by the owner of a condominium unit or the owner of a proprietary lease in a cooperative
- occupancy where the rented unit is to be used primarily for business, commercial or agricultural purposes
- occupancy in a public housing unit governed by HUD regulations wherever HUD regulations conflict with VRLTA
- occupancy by a tenant who pays no rent
- occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than two single-family residences subject to a rental agreement
The last provision is confusing, so let me spell it out a little more clearly. Basically, if you are renting from a person (not a corporation, LLC, etc.), the VRLTA does not apply unless that person owns three or more single-family residences, including the one you are renting, which he or she is renting out.
Why it Matters
If the VRLTA does not apply, then you are subject to the Common Law (law made by judges over the centuries), as altered by Chapter 13 of Title 55 of the Code of Virginia. The reason this matters is that the two sets of laws are very different. Perhaps the most important difference, however, is that VRLTA has section 55-248.9. That section prohibits certain provisions from being in a lease, and amongst those provisions is any provision in which the tenant waives any of his or her rights under the VRLTA. Chapter 13 of Title 55 has no equivalent provision. In other words, unless the specific code provision says otherwise, any provision of Chapter 13 of Title 55 can be waived by the lease.
I cannot count the number of times I have had someone come running to me with something horrible their landlord has done. I will find where the landlord has no responsibility for this in the lease, the tenant will show me the provision of the law that gives the landlord responsibility, and I will have to explain that, since it's not a VRLTA lease, the lease provision actually wins. Or, I will have someone with a non-VRLTA lease who found a great legal provision in the VRLTA. So, as a general rule, if you are researching Virginia landlord/tenant law and you find a provision, check out the section number. If it is section number 55-248.x or 55-248.xx, you are reading a VRLTA provision. If it is between 55-217 and 55-248 (no decimal point), it is a Chapter 13 provision (but again, remember, unless that provision says otherwise, that provision is waivable in the lease).
Exception
Now, there is one big exception to all that I have laid out above. There is a way to make your non-VRLTA lease into a VRLTA lease, and thus open up all of the VRLTA options to you. Section 55-248.5(B) specifically allows the lease itself to declare that it is to be governed by VRLTA, even if the rental situation is one that fits into one of the categories that would normally be excluded from VRLTA coverage. If you would prefer to have your lease governed by the VRLTA, you can ask for such a provision, and if included in the lease, the VRLTA would apply. Just remember, the VRLTA is a double-edged sword - it provides additional protections for tenants, but also provides additional protections for landlords as well.
How to find the Law
So, now that you know which law applies to your lease, you might wonder how you find that law. The simplest way without following links on the blog is to go to a search engine, search for "Code of Virginia," go to the Table of Contents, then click on Title 55, then click on either Chapter 13 or Chapter 13.2 for whichever applies to your lease. For simplicity, however, you can click on my links here to find Chapter 13 or the VRLTA.
Conclusion
As I stated at the beginning, leases are a major topic. Look at how long this blog post is, and all that I've done is help you figure out which laws apply to your lease! If you would like to have an attorney review your lease before you sign it, or answer your questions about the law and its applicability to your lease (and what it really means to you), or if you are engaged in a landlord/tenant dispute now and would like an attorney to assist you, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with me - the consultation is free for up to half an hour!
Wednesday, June 25, 2014
Supreme Court Preview: The Real Issue in Hobby Lobby
As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.\
Program Note: So, today I wrapped up a two day trial, and so tomorrow I am treating myself to a day off. As a result, any blog post needs to come today, but due to this trial I really haven't been able to collect my thoughts on one. So, today's blog post will instead just be a little post I put together regarding tomorrow's anticipated Supreme Court ruling in Hobby Lobby v. Sebelius.
Introduction
Tomorrow, it seems the Supreme Court will release its decision in Hobby Lobby v. Sebelius, the challenge to the Obama administration's rule requiring health insurance to include contraception coverage, which has been challenged by religious business owners who believe the use of contraception is sin. Since they would be required to provide health insurance under the employer mandate, they argue this rule effectively requires them to fund something that violates their religious beliefs.
In this blog post, I will briefly explain what is at issue in this case, and why either side has reasons to be hopeful of victory.
Disclaimer: I am not neutral on this matter. I am a supporter of the Affordable Care Act (aka "Obamacare") and with it I support the contraception mandate. I believe it should be upheld. I try in posts like this to leave my personal biases out of it, but it is worth you understanding my position so you can add some skepticism to what I write.
This is Not a Constitutional Law Case
Most people I talk to about Hobby Lobby immediately assume this case is about the First Amendment, the Free Exercise clause. It actually is not. The constitution is not in any way at issue in Hobby Lobby. There's a reason for this - back in the early 1990's, a group of Native Americans challenged the banning of peyote as a controlled substance under federal and state law because Native Americans use peyote in religious rituals. The Supreme Court ruled that the law was constitutional, because it was not a law that actually targeted a religion - it was a rule of "general application" that was rationally related to a legitimate government interest (something called the "rational basis test").
The Congress reacted swiftly by passing the Religious Freedom Restoration Act (RFRA) which said that any law or rule of "general application" becomes invalid when applied to an individual if that law contradicts the individual's religion and the application of that law against the individual is not "narrowly tailored" to meet a "compelling government interest" (also known as the "strict scrutiny" test).
The purpose of the law was clear - most laws pass a rational basis test, but fail a strict scrutiny test, so
RFRA was designed to tip the scales in favor of the individual. Unfortunately for its supporters, RFRA did not have the far-reaching effect its authors desired. The Supreme Court later ruled that it was beyond Congress's authority to restrict state laws in the way RFRA did. Nonetheless, RFRA still stands as applicable to federal laws and regulations.
So, getting back to Hobby Lobby, the contraception mandate is clearly a government regulation of "general application." As a result, the issue in Hobby Lobby is not about the Constitution, but about RFRA. Specifically, Hobby Lobby and its supporters argue that RFRA applies, and as such strict scrutiny applies (which the mandate will likely fail), and so religious objectors should not have to include contraception in its employee health policies. The Obama administration argues that RFRA does not even apply to the mandate, and as such, rational basis review applies (which the mandate will likely pass).
Why the Obama Administration Might Win
Does a corporation have religious freedom? That's the question that underlies the Obama administration argument. Can a business, which is not a person, really have a religious belief? And if so, is that merely a reflection of the beliefs of its owners? The idea behind this argument is that our laws consider corporations as separate constructs from people. If a corporation, then, is its own entity, how can it have religious beliefs to be infringed? RFRA by its own language applies to people, not businesses.
An additional argument is that RFRA is a law, not a constitutional provision. As a result, Congress can make RFRA inapplicable to any law it wants, and Obamacare does include mention of contraceptive coverage.
Why Hobby Lobby Might Win
Does a religious person have a right to own a business without violating his religion? That question is at the heart of Hobby Lobby's argument. To them, businesses are a collection of individual owners, and while it may not be possible with a large corporation with millions of stockholders, small businesses, or businesses like Hobby Lobby which are large but still closely held (owned by only a few people) do inherit the religious beliefs of their owners. The argument, then, is that if RFRA does not apply to businesses, then religious people have no protections if they want to start a business.
Regarding the second argument of statutory revision - there is language in Obamacare about contraception, but it does not clearly overrule RFRA, which is usually what is necessary to make another law inapplicable.
Prediction
Predicting Supreme Court rulings is always dangerous, but I'll do it anyways. I predict that a 5-4 majority with the traditional conservative/liberal split will strike down the contraceptive mandate but only as it applies to businesses with a small number of owners and businesses specifically affiliated with religions. Publicly traded companies and companies which do not have a clear religious affiliation would still be required to abide by the mandate.
Program Note: So, today I wrapped up a two day trial, and so tomorrow I am treating myself to a day off. As a result, any blog post needs to come today, but due to this trial I really haven't been able to collect my thoughts on one. So, today's blog post will instead just be a little post I put together regarding tomorrow's anticipated Supreme Court ruling in Hobby Lobby v. Sebelius.
Introduction
Tomorrow, it seems the Supreme Court will release its decision in Hobby Lobby v. Sebelius, the challenge to the Obama administration's rule requiring health insurance to include contraception coverage, which has been challenged by religious business owners who believe the use of contraception is sin. Since they would be required to provide health insurance under the employer mandate, they argue this rule effectively requires them to fund something that violates their religious beliefs.
In this blog post, I will briefly explain what is at issue in this case, and why either side has reasons to be hopeful of victory.
Disclaimer: I am not neutral on this matter. I am a supporter of the Affordable Care Act (aka "Obamacare") and with it I support the contraception mandate. I believe it should be upheld. I try in posts like this to leave my personal biases out of it, but it is worth you understanding my position so you can add some skepticism to what I write.
This is Not a Constitutional Law Case
Most people I talk to about Hobby Lobby immediately assume this case is about the First Amendment, the Free Exercise clause. It actually is not. The constitution is not in any way at issue in Hobby Lobby. There's a reason for this - back in the early 1990's, a group of Native Americans challenged the banning of peyote as a controlled substance under federal and state law because Native Americans use peyote in religious rituals. The Supreme Court ruled that the law was constitutional, because it was not a law that actually targeted a religion - it was a rule of "general application" that was rationally related to a legitimate government interest (something called the "rational basis test").
The Congress reacted swiftly by passing the Religious Freedom Restoration Act (RFRA) which said that any law or rule of "general application" becomes invalid when applied to an individual if that law contradicts the individual's religion and the application of that law against the individual is not "narrowly tailored" to meet a "compelling government interest" (also known as the "strict scrutiny" test).
The purpose of the law was clear - most laws pass a rational basis test, but fail a strict scrutiny test, so
RFRA was designed to tip the scales in favor of the individual. Unfortunately for its supporters, RFRA did not have the far-reaching effect its authors desired. The Supreme Court later ruled that it was beyond Congress's authority to restrict state laws in the way RFRA did. Nonetheless, RFRA still stands as applicable to federal laws and regulations.
So, getting back to Hobby Lobby, the contraception mandate is clearly a government regulation of "general application." As a result, the issue in Hobby Lobby is not about the Constitution, but about RFRA. Specifically, Hobby Lobby and its supporters argue that RFRA applies, and as such strict scrutiny applies (which the mandate will likely fail), and so religious objectors should not have to include contraception in its employee health policies. The Obama administration argues that RFRA does not even apply to the mandate, and as such, rational basis review applies (which the mandate will likely pass).
Why the Obama Administration Might Win
Does a corporation have religious freedom? That's the question that underlies the Obama administration argument. Can a business, which is not a person, really have a religious belief? And if so, is that merely a reflection of the beliefs of its owners? The idea behind this argument is that our laws consider corporations as separate constructs from people. If a corporation, then, is its own entity, how can it have religious beliefs to be infringed? RFRA by its own language applies to people, not businesses.
An additional argument is that RFRA is a law, not a constitutional provision. As a result, Congress can make RFRA inapplicable to any law it wants, and Obamacare does include mention of contraceptive coverage.
Why Hobby Lobby Might Win
Does a religious person have a right to own a business without violating his religion? That question is at the heart of Hobby Lobby's argument. To them, businesses are a collection of individual owners, and while it may not be possible with a large corporation with millions of stockholders, small businesses, or businesses like Hobby Lobby which are large but still closely held (owned by only a few people) do inherit the religious beliefs of their owners. The argument, then, is that if RFRA does not apply to businesses, then religious people have no protections if they want to start a business.
Regarding the second argument of statutory revision - there is language in Obamacare about contraception, but it does not clearly overrule RFRA, which is usually what is necessary to make another law inapplicable.
Prediction
Predicting Supreme Court rulings is always dangerous, but I'll do it anyways. I predict that a 5-4 majority with the traditional conservative/liberal split will strike down the contraceptive mandate but only as it applies to businesses with a small number of owners and businesses specifically affiliated with religions. Publicly traded companies and companies which do not have a clear religious affiliation would still be required to abide by the mandate.
Thursday, June 19, 2014
Staying Out of Virginia Courts - Alternative Dispute Resolution
As always, before reading today's post please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Everyone knows litigation is expensive. There's long, dragged out discovery, intensive back and forth between attorneys, a lengthy trial, and sometimes seemingly endless appeals. In light of this expense, there has been a rise in interest over the past couple decades in what is known as Alternative Dispute Resolution (or ADR). ADR is a series of options available to litigants to settle their case without going to court, and without the prolonged back and forth of a typical settlement negotiation. ADR can range from rigid and formal, to extremely relaxed and informal, and as a result can often save its participants substantial sums of money.
Today I will provide a brief description and pro/con list for each of the three major types of ADR - mediation, non-binding arbitration, and binding arbitration.
Mediation
There's a good chance you already know what mediation is - in theory. You and your opponent sit in a room together with a trained mediator and try to hash out an agreement. What I've been surprised to discover, however, is that to most people that is where their concept of mediation ends. In fact, mediation is a very robust process. In many cases there are breakout sessions, where each side sits with the mediator individually, and the mediator is someone trained in both the field of law in dispute and in the more psychological components of getting people to listen to each other. A good mediator will bring a neutral party perspective of helping to foster dialogue and helping each party see where they are being unreasonable. Further, a neutral third party can help find resolutions that neither party may have thought of on their own. As a result, in my personal experience, a majority of mediations I have been involved in have been successful - although I do add the disclaimer that attending mediation usually requires the agreement of both parties, so parties that go to mediation tend to already be somewhat more likely than average to want to settle.
The advantages of mediation are pretty clear. First, it is the least expensive of the three major ADR categories. This is because you can go to mediation right away - no discovery is necessary, no evidence is presented, no witnesses are called, etc. Second, it is the form of ADR most likely to result in everyone being happy, or at least satisfied. If mediation is successful, you have crafted an agreement between the parties, nothing is forced on you. It means that, at least on some level, you agree the resolution is fair. Finally, this is the most flexible form of ADR. Since you are working on a settlement, you can come up with creative solutions that are not available in court or in the other ADR settings.
The disadvantages of mediation are, in my opinion, fairly minimal, but they do exist. For one thing, if mediation fails, you are back to square one in terms of preparing for trial, so instead of saving you money you have to add the cost of the failed mediation to the cost of the rest of the litigation. For another, depending on the sophistication of the parties it is possible for a less sophisticated party to get railroaded in a mediation session, and the mediator has very little ability to prevent that from happening. This second disadvantage can be mitigated, though, by the parties having their attorneys at the mediation.
Non-Binding Arbitration
Non-binding arbitration is basically a cross between mediation and a trial. The ultimate purpose of non-binding arbitration is to get you to reach an agreement to settle your case, but the manner of doing so is different from mediation. Specifically, instead of a trained mediator, you will go before a trained legal professional, usually an attorney or a retired judge. Instead of a discussion, you will present your case, including exhibits and witnesses. Nonetheless, it is not a full trial. The rules of evidence and the atmosphere of the room will be much more relaxed. You are not there to prove your case, just to give your arbitrator a sense of each side's position. At the end of the arbitration, the arbitrator will make a ruling. The idea behind the arbitrator's ruling is that it is a combination of what the arbitrator believes a court would rule, and what the arbitrator believes the right resolution is (usually these will be the same thing). Since the ruling is non-binding, either party can refuse to accept the ruling and continue on with the courts, but the main idea is that the ruling can provide an agreement itself, or at least a starting point for further settlement negotiation.
I have often found that when clients talk to me about going to mediation, they are actually thinking of non-binding arbitration. The two are quite different. Specifically, mediation is collaborative, while non-binding arbitration is not.
The advantages of non-binding arbitration are similar to mediation. First, you avoid many of the costs associated with a trial - while you have to do more to prepare for non-binding arbitration than mediation, you still don't need a fully fleshed out case. Second, you are much more likely to reach a settlement after non-binding arbitration since now a neutral party (rather than your friends and family and an attorney trying to get you to hire him) has told you what is likely to happen. Finally, you still have the flexibility to craft more creative solutions, using the arbitration ruling as a guide.
The disadvantages are found primarily in the cost area. If someone outright rejects the arbitration ruling, you are not only back to square one as with mediation, but you have spent much more on the arbitration than you would on mediation. In other words, non-binding arbitration is probably the worst of the three ADR categories if the ADR does not work.
Binding Arbitration
So, the final major category is binding arbitration. As you can probably guess, binding arbitration is much like non-binding arbitration except that both parties are bound by the arbitrator's ruling. Binding arbitration can be chosen by the parties by agreement, or it can be forced on a party if the underlying lawsuit is based, at least in part, on a matter which that party had contracted to settle in binding arbitration if a dispute arose. Once the arbitrator rules, generally that's it. There's no appeal and you can only challenge the ruling in court if you have a defense to the arbitration agreement itself, and in very limited other circumstances.
The big advantage of binding arbitration is finality. Once a ruling is made, it's made. There is no appeal, no more fighting, nothing.
There are a number of disadvantages to binding arbitration, however. First, it is by far the most expensive of the three ADR categories. You have to fully flesh out your cases, since the ruling will be binding, and the costs of the arbitration itself tend to be high. Second, there is basically no oversight over the arbitrator, so your rights could be trampled on with you basically having no recourse. Finally, since the arbitrator provides a binding ruling, you are basically as likely to have unhappy parties as with a trial - no agreement is ultimately reached with binding arbitration.
Lawyer's Role
Many people seem to think that one of the biggest advantages of ADR is the ability to save even more money by not having an attorney. This is a huge mistake. An attorney is necessary even in mediation to make sure your rights are protected. All three forms of ADR contemplate attorneys being involved and participating in the process, albeit to varying degrees. At a mediation an attorney is likely to say nothing unless his client is being trampled on, or he is meeting with his client in a private session. In either arbitration, however, the attorney will generally be the one presenting the case. It is very easy to be told that "this is how it is" by the other side in an ADR setting if you do not have an attorney, and I would never recommend going into an ADR setting without an attorney.
My Preference
So, you might be wondering reading all of this what I think about ADR. Personally, I'm a big fan of it. I think avoiding trial is something to aim for where possible. I will say I generally don't like binding arbitration. I think if you are going to go through all that trouble, you should just go ahead with a trial. Arbitration tends to favor the "big guy" over the "little guy" because there are fewer protections for the "little guy" in binding arbitration. For those reasons, I tend to prefer trial over binding arbitration.
Non-binding arbitration and mediation, however, are great in my opinion. I do not have a preference between the two, as I've seen many cases where mediation is probably the better choice, but a number also where non-binding arbitration seemed better. I can think of one case in particular where both my client and the other side were being clearly unreasonable, yet their positions were actually not that far apart. A mediation would have been useless because they were both absolutely dug in, so we convinced them to do a non-binding arbitration. The arbitrator made a ruling that was between their positions (not in the middle, mind you, but still between them) and they both reluctantly agreed. Sometimes being told "if you go to trial, this is what will happen, so save yourself the trouble" by a neutral third party can really help.
Conclusion
Alternative Dispute Resolution is growing in popularity as the cost of litigation continues to rise. There are many cases where one form or another of ADR is the right choice, and hiring an attorney willing to go through ADR with you can be very important. If you are involved in litigation but would like to consider an ADR option, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Everyone knows litigation is expensive. There's long, dragged out discovery, intensive back and forth between attorneys, a lengthy trial, and sometimes seemingly endless appeals. In light of this expense, there has been a rise in interest over the past couple decades in what is known as Alternative Dispute Resolution (or ADR). ADR is a series of options available to litigants to settle their case without going to court, and without the prolonged back and forth of a typical settlement negotiation. ADR can range from rigid and formal, to extremely relaxed and informal, and as a result can often save its participants substantial sums of money.
Today I will provide a brief description and pro/con list for each of the three major types of ADR - mediation, non-binding arbitration, and binding arbitration.
Mediation
There's a good chance you already know what mediation is - in theory. You and your opponent sit in a room together with a trained mediator and try to hash out an agreement. What I've been surprised to discover, however, is that to most people that is where their concept of mediation ends. In fact, mediation is a very robust process. In many cases there are breakout sessions, where each side sits with the mediator individually, and the mediator is someone trained in both the field of law in dispute and in the more psychological components of getting people to listen to each other. A good mediator will bring a neutral party perspective of helping to foster dialogue and helping each party see where they are being unreasonable. Further, a neutral third party can help find resolutions that neither party may have thought of on their own. As a result, in my personal experience, a majority of mediations I have been involved in have been successful - although I do add the disclaimer that attending mediation usually requires the agreement of both parties, so parties that go to mediation tend to already be somewhat more likely than average to want to settle.
The advantages of mediation are pretty clear. First, it is the least expensive of the three major ADR categories. This is because you can go to mediation right away - no discovery is necessary, no evidence is presented, no witnesses are called, etc. Second, it is the form of ADR most likely to result in everyone being happy, or at least satisfied. If mediation is successful, you have crafted an agreement between the parties, nothing is forced on you. It means that, at least on some level, you agree the resolution is fair. Finally, this is the most flexible form of ADR. Since you are working on a settlement, you can come up with creative solutions that are not available in court or in the other ADR settings.
The disadvantages of mediation are, in my opinion, fairly minimal, but they do exist. For one thing, if mediation fails, you are back to square one in terms of preparing for trial, so instead of saving you money you have to add the cost of the failed mediation to the cost of the rest of the litigation. For another, depending on the sophistication of the parties it is possible for a less sophisticated party to get railroaded in a mediation session, and the mediator has very little ability to prevent that from happening. This second disadvantage can be mitigated, though, by the parties having their attorneys at the mediation.
Non-Binding Arbitration
Non-binding arbitration is basically a cross between mediation and a trial. The ultimate purpose of non-binding arbitration is to get you to reach an agreement to settle your case, but the manner of doing so is different from mediation. Specifically, instead of a trained mediator, you will go before a trained legal professional, usually an attorney or a retired judge. Instead of a discussion, you will present your case, including exhibits and witnesses. Nonetheless, it is not a full trial. The rules of evidence and the atmosphere of the room will be much more relaxed. You are not there to prove your case, just to give your arbitrator a sense of each side's position. At the end of the arbitration, the arbitrator will make a ruling. The idea behind the arbitrator's ruling is that it is a combination of what the arbitrator believes a court would rule, and what the arbitrator believes the right resolution is (usually these will be the same thing). Since the ruling is non-binding, either party can refuse to accept the ruling and continue on with the courts, but the main idea is that the ruling can provide an agreement itself, or at least a starting point for further settlement negotiation.
I have often found that when clients talk to me about going to mediation, they are actually thinking of non-binding arbitration. The two are quite different. Specifically, mediation is collaborative, while non-binding arbitration is not.
The advantages of non-binding arbitration are similar to mediation. First, you avoid many of the costs associated with a trial - while you have to do more to prepare for non-binding arbitration than mediation, you still don't need a fully fleshed out case. Second, you are much more likely to reach a settlement after non-binding arbitration since now a neutral party (rather than your friends and family and an attorney trying to get you to hire him) has told you what is likely to happen. Finally, you still have the flexibility to craft more creative solutions, using the arbitration ruling as a guide.
The disadvantages are found primarily in the cost area. If someone outright rejects the arbitration ruling, you are not only back to square one as with mediation, but you have spent much more on the arbitration than you would on mediation. In other words, non-binding arbitration is probably the worst of the three ADR categories if the ADR does not work.
Binding Arbitration
So, the final major category is binding arbitration. As you can probably guess, binding arbitration is much like non-binding arbitration except that both parties are bound by the arbitrator's ruling. Binding arbitration can be chosen by the parties by agreement, or it can be forced on a party if the underlying lawsuit is based, at least in part, on a matter which that party had contracted to settle in binding arbitration if a dispute arose. Once the arbitrator rules, generally that's it. There's no appeal and you can only challenge the ruling in court if you have a defense to the arbitration agreement itself, and in very limited other circumstances.
The big advantage of binding arbitration is finality. Once a ruling is made, it's made. There is no appeal, no more fighting, nothing.
There are a number of disadvantages to binding arbitration, however. First, it is by far the most expensive of the three ADR categories. You have to fully flesh out your cases, since the ruling will be binding, and the costs of the arbitration itself tend to be high. Second, there is basically no oversight over the arbitrator, so your rights could be trampled on with you basically having no recourse. Finally, since the arbitrator provides a binding ruling, you are basically as likely to have unhappy parties as with a trial - no agreement is ultimately reached with binding arbitration.
Lawyer's Role
Many people seem to think that one of the biggest advantages of ADR is the ability to save even more money by not having an attorney. This is a huge mistake. An attorney is necessary even in mediation to make sure your rights are protected. All three forms of ADR contemplate attorneys being involved and participating in the process, albeit to varying degrees. At a mediation an attorney is likely to say nothing unless his client is being trampled on, or he is meeting with his client in a private session. In either arbitration, however, the attorney will generally be the one presenting the case. It is very easy to be told that "this is how it is" by the other side in an ADR setting if you do not have an attorney, and I would never recommend going into an ADR setting without an attorney.
My Preference
So, you might be wondering reading all of this what I think about ADR. Personally, I'm a big fan of it. I think avoiding trial is something to aim for where possible. I will say I generally don't like binding arbitration. I think if you are going to go through all that trouble, you should just go ahead with a trial. Arbitration tends to favor the "big guy" over the "little guy" because there are fewer protections for the "little guy" in binding arbitration. For those reasons, I tend to prefer trial over binding arbitration.
Non-binding arbitration and mediation, however, are great in my opinion. I do not have a preference between the two, as I've seen many cases where mediation is probably the better choice, but a number also where non-binding arbitration seemed better. I can think of one case in particular where both my client and the other side were being clearly unreasonable, yet their positions were actually not that far apart. A mediation would have been useless because they were both absolutely dug in, so we convinced them to do a non-binding arbitration. The arbitrator made a ruling that was between their positions (not in the middle, mind you, but still between them) and they both reluctantly agreed. Sometimes being told "if you go to trial, this is what will happen, so save yourself the trouble" by a neutral third party can really help.
Conclusion
Alternative Dispute Resolution is growing in popularity as the cost of litigation continues to rise. There are many cases where one form or another of ADR is the right choice, and hiring an attorney willing to go through ADR with you can be very important. If you are involved in litigation but would like to consider an ADR option, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, June 12, 2014
Virginia Divorce Law: How to Initiate a Separation
As always, before reading this post please review my disclaimer by clicking the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no." There's a flip side to that issue, however. What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave? What do you do then?
Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.
Agreements are Always Easiest
I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well. You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now). My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.
This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place. The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence. If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.
Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice. You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper. When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.
Pendente Lite Motion in Fault-Based Divorces
If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis. This would include adultery, desertion, cruelty (physical abuse), and mental cruelty. If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final). Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.
Now, there are some major considerations to this approach. First of all, filing for divorce on a fault ground is usually taken as a declaration of war. Do not take this approach unless you are ready for a real fight. Second, courts do not like to "create" separations. While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together. As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order. This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.
Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful. Nonetheless, it is still not a guarantee.
Separation Under the Same Roof
If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof. My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof. This approach allows you to be separated for the requisite time and then file. Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree. Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.
Moving Out
If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself. We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse. Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim. Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation. If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).
Conclusion
In some cases, actually initiating the separation period is the hardest part of a divorce. It is not a simple process precisely because you cannot demand that your spouse leave. If you are looking to get advice on beginning a separation, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.
Introduction
In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no." There's a flip side to that issue, however. What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave? What do you do then?
Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.
Agreements are Always Easiest
I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well. You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now). My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.
This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place. The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence. If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.
Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice. You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper. When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.
Pendente Lite Motion in Fault-Based Divorces
If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis. This would include adultery, desertion, cruelty (physical abuse), and mental cruelty. If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final). Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.
Now, there are some major considerations to this approach. First of all, filing for divorce on a fault ground is usually taken as a declaration of war. Do not take this approach unless you are ready for a real fight. Second, courts do not like to "create" separations. While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together. As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order. This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.
Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful. Nonetheless, it is still not a guarantee.
Separation Under the Same Roof
If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof. My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof. This approach allows you to be separated for the requisite time and then file. Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree. Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.
Moving Out
If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself. We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse. Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim. Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation. If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).
Conclusion
In some cases, actually initiating the separation period is the hardest part of a divorce. It is not a simple process precisely because you cannot demand that your spouse leave. If you are looking to get advice on beginning a separation, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.
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