As always, before reading this 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
"It's their fault that I'm in this mess, they should pay your fees, not me." If I had a dime for every time I've heard a client say that or something similar to me I'd... well... probably have a lot of dimes. Attorneys' fees are one of those areas where a particular sense of unfairness hits a lot of clients. If it's not their fault that they need an attorney (maybe they've been wrongfully sued, or wrongfully accused of a crime, or maybe they are enforcing their rights against someone who refuses to do what they are supposed to), it just doesn't seem right that they have to pay their lawyer and can't get the other side to pay.
Well, there are some situations in which your attorneys' fees can, in fact, be ordered to be paid by the other party, but those situations are exceptions, not the rule, and even they are complicated. In this blog post I hope to discuss some of the basics (the details would be far too much for one post) on when you can and cannot require the other party to pay for your lawyer, and how such an arrangement actually works.
American Rule vs. English Rule
Much of the "common law" world (the parts of the world that can trace their legal traditions to Medieval England) follow what is known as the "English Rule" in civil lawsuits. This rule is simple - in a lawsuit, the loser pays the winner's attorney's fees, in addition to his or her own. The United States, however, despite being a common law country, does not follow the English Rule. Rather, we follow the "American Rule," which states that, while there are exceptions, barring the availability of one of those exceptions, each party pays his or her own attorney regardless of who wins and loses.
The merits of this Rule can be debated all you want (and this is not a constitutionally required rule, by the way, meaning the various state legislators could change it any time they wanted to if they wished), but it is the law in all 50 states and the federal court system right now. As a result, you should always enter a legal situation expecting to pay your own attorney.
Now, with that background, it might be worth discussing what the major exceptions are. In Virginia, there are around three major exceptions.
Exception 1 - Statutory Exceptions
Statutory exceptions are situations where Virginia Law expressly provides for attorneys' fees to be awarded in the discretion of the court. Some common situations in which courts have the power to award attorneys' fees to a party of its choosing are Family Law cases (including divorce), estate dispute cases, and all civil lawsuits heard by the Juvenile and Domestic Relations District Courts.
Now, the statutory exceptions themselves will lay out in each specific part how the court makes its determination - and not all statutory exceptions are the same. For example, in a divorce, attorneys' fees are awarded "in light of all the equities of the case" - in other words, the judge is to make an attorney fee ruling he or she considers fair. In J&DR Court cases, however, attorneys' fees are to be awarded based pretty much solely on the relative ability of the parties to pay.
So, as you can see, the statutory exceptions give a great deal of discretion to judges. As a result, if you wish to enforce an attorney fee right which is granted by statute, you must convince a judge that you should be awarded such relief. You cannot simply demand that the other party pay all of your fees.
Exception 2 - Agreement
The next major exception is if the parties have agreed to apply the "English Rule" to their case. Many contracts, for example, will contain provisions that if a lawsuit is filed based on an alleged breach of the contract, the prevailing party will be entitled to his or her attorneys' fees.
With rare exception, when a lawsuit involves a contract and that contract provides for an attorneys' fee award, the judge is largely without discretion. If the agreement provides that the loser pays, then the judge must order the loser to pay. In these cases, it is much more reasonable to demand your fees from the other side at the outset.
Exception 3 - Sanctions
Virtually all court systems have provisions for dealing with lawsuits that are "frivolous." In Virginia, our provision is Virginia Code Section 8.01-271.1. This provision states that the signing of any "pleading" (court document) indicates that the person signing it (be it the attorney or an unrepresented party) has a good faith basis for believing that the pleading is reasonably based on law or fact. If this later turns out to be untrue, and the pleading was filed in bad faith, the lawyer, the lawyer's client, or both can be sanctioned (penalized) by the court. Amongst the penalties the court may impose is an attorneys' fee award.
Much like exception 1, sanctions are largely discretionary. If a judge finds that sanctions are warranted, the judge may not award fees at all, or only award some fees.
How Fee Awards Function
If you find yourself in an exception situation where a fee award might be possible, the first thing you need to understand is that your fees are your responsibility first and foremost. I've had clients say to me "do this, and then send the bill to the other party." No, that's not how it works. You owe the money to your attorney, and it is your responsibility to pay, even when the court has awarded you your attorneys' fees.
If the court awards you fees, it can come in two forms - an order to pay or a judgment. As I've discussed before, an order to pay is a ruling that requires the person to pay under penalty of contempt of court. A judgment, however, only creates the duty to pay on paper, and then you still have to engage in post-judgment collections to get the money.
The easiest way to tell which situation you are in is to see if the judge provided a payment deadline. If they did, then it's probably an order to pay, and if they did not, then it is probably a judgment. More generally, most (but not all) attorneys' fee awards arising out of agreements are judgments, and most (but not all) attorneys' fee awards arising out of sanctions are orders to pay. For statutory exceptions, it generally depends whether the case is "in law" or "in equity" - so divorce attorney fee awards are usually orders to pay, but estate dispute attorney fee awards are usually judgments.
So, the fact that some attorneys' fee awards are just judgments that must be garnished or otherwise collected should tell you right away that you must still pay your attorney first, but then you can try to get that money back. Even orders to pay, however, do not relieve you of your obligation to your attorney, since the other party may still refuse to pay. Most importantly of all, however, almost all attorneys' fees awards (both judgments and orders to pay) are dischargeable in bankruptcy, so if the other party declares bankruptcy, you can't collect the fee award, and you still have to pay your attorney.
In short, there is virtually no situation in which "do this and send the bill to the other party" is actually acceptable.
Conclusion
There are few things more frustrating to a wronged party that realizing that you still have to pay for your own attorney. While there are exceptions, these are frequently hard to understand, and harder still to enforce. If you'd like to discuss whether an attorney fee award is possible in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com for a consultation. Our initial consultations are free for up to half an hour!
Friday, October 23, 2015
Tuesday, October 13, 2015
The Baldwin Law Firm Has a New Website
As regular readers of my blog know, I am not a solo practitioner. Rather, I work for a wonderful small law firm in Fairfax County, Virginia called The Baldwin Law Firm.
Today, I'm pleased to announce that our firm has a brand new website (first major re-vamping of the firm's website in more than a decade!). Please check us out at http://www.thebaldwinlawfirm.com!
Today, I'm pleased to announce that our firm has a brand new website (first major re-vamping of the firm's website in more than a decade!). Please check us out at http://www.thebaldwinlawfirm.com!
Friday, October 9, 2015
Multiple Tenants in Virginia - What to Do when Tenants Don't Get Along
As always, prior to reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most complicated issues I face as a landlord/tenant attorney is the issue of what to do when two tenants in the same property don't get along. This matter is complicated whether I'm representing the landlord or one of the tenants, yet it is frequently made even more complicated because neither the landlord nor the tenant did any advance planning for the possibility of a dispute between tenants. Unfortunately, most of these disputes end up being costly and unpleasant for all involved, and much of the expense could have been saved with proper planning.
In this post, I'll address some of the basics of how to address a tenant dispute when it arises (from either the landlord or tenant's perspective), and then I will discuss a few ways advanced planning can prevent these disputes from escalating.
Know Which Law Applies
I've discussed many times before the difference between leases that are and are not covered by the Virginia Residential Landlord and Tenant Act (for a basic breakdown of figuring out which law applies to you, view my post here). This is a situation where it does matter whether or not your lease is covered by the VRLTA - especially if you are the landlord.
What a Landlord Should Do if Tenants are Fighting
As the landlord, if two tenants are fighting, it might be your temptation to throw up your hands and say "not my problem, you two work it out." This would be a mistake. A landlord is under an obligation to provide a home that is habitable and tenantable, and that includes a home where the tenant is safe and free from improper invasion of privacy, harassment, etc. If a tenant has a legitimate dispute with their fellow tenant in that their fellow tenant is actually preventing them from having quiet enjoyment of the property, they could be within their rights to terminate their lease early, force you to return their security deposit, and leave you with a smaller rent check each month than you had planned. Worse yet, if word of your lack of caring gets around, you may have trouble finding a new tenant. In other words, yes, it is your problem.
The first step you should take as a landlord is to investigate your lease to see if the offending tenant has, in fact, violated any provision of your lease. If they have, you can proceed with action for a breach of the lease against the tenant, including a 21/30 notice if your lease provides for it or is covered by the VRLTA. If, however, the offending tenant has not actually violated the lease, you could be in some trouble. If your lease is covered by the VRLTA, you have the right under Virginia Code Section 55-248.17 to adopt rules and regulations for how your tenants are to behave in the property - the only restrictions are that the rules must be reasonable, and must not amount to a "substantial modification" of the lease in which they entered. It is very unlikely that reasonable rules about how your tenants behave towards each other will be such a substantial modification, however. This is important, because once those rules are adopted (and I do recommend consulting an attorney in order to ensure they are prepared and adopted properly), a violation of those rules is legally equivalent to a violation of the lease.
The common law has no identical provision, however, and so if you have a common law lease, you can only adopt such rules and regulations if the lease expressly allows you to (I've said this before, and I'll say it again, the VRLTA leases is a double-edged sword and there absolutely are circumstances where it is more favorable to a landlord than the common law). If you have a common law lease and the lease does not include a rules and regulations clause, I would strongly advise you to consult with an attorney on how to proceed.
What a Tenant Should Do in a Dispute with Another Tenant
The first thing a tenant experiencing problems with another tenant should do is try to resolve your issues. If that fails, you should alert the landlord as soon as possible. This will give you an opportunity to see if your landlord will work with you to resolve the dispute. If your landlord fails to act, however, then you need to assess whether or not the other tenant is breaching the lease, violating the law, violating properly adopted rules or regulations, or is engaging in conduct that is making the home unlivable for you. If any of those situations is occurring, you likely have the right to provide a 21/30 notice to the landlord requiring the landlord to fix the situation within 21 days, or terminating your lease in 30 days (a more detailed explanation of 21/30 notices is in my post here).
How to Prevent these Issues
It probably does not surprise you that the vast majority of tenant dispute cases I see, both representing landlords and representing tenants, are cases where a) the lease is not governed by the VRLTA, b) the lease does not have a rules and regulations provision, and c) the offending tenant is not in actual violation of the lease or the law. Most of those cases, the landlord actually is interested in helping the tenant, but because of the way the law works, the cases end with the landlord agreeing to terminate the offended tenant's lease at no penalty. The landlord's not happy - they've lost a good tenant and are stuck with a bad one, and the offended tenant's not happy - they've had to move through no fault of their own. The sad thing is, it doesn't have to be this way.
First and foremost, landlords planning to rent to multiple tenants, and tenants planning to live with other tenants, should ensure that your lease itself contains provisions that not only outline a tenant's duties towards the property, but also a tenant's duties towards other tenant's. At a minimum, the lease should require tenant's to behave in a respectful manner towards each other, forbid tenants from entering the bedrooms of other tenants unless invited, forbid tenants from harassing or stalking other tenants, and require tenants to share household chores in a reasonable manner.
Additionally, all leases (even VRLTA leases, since it's always better to have in the lease instead of just the law) should have a rules and regulations provision. The provision should lay out how rules can be made, how they are adopted, how they come into force, and the effect of violating a rule or regulation. The simple reality is, the best lease drafter in the world cannot foresee every issue that might come up, and it's always a good idea to give you some power to handle issues as they may arise.
Conclusion
Disputes between tenants in a multiple tenancy property are one of the toughest issues we face in landlord/tenant law. It is made much tougher by the fact that most landlords renting to multiple tenants simply are not prepared for the possibility of such a dispute. With proper planning, such disputes do not need to be the horror show that they tend to be. If you are dealing with a tenant dispute, or would like to plan a lease or rules and regulations to deal with tenant disputes, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, our firm just completely revamped our website - you should feel free to check it out here.
Introduction
One of the most complicated issues I face as a landlord/tenant attorney is the issue of what to do when two tenants in the same property don't get along. This matter is complicated whether I'm representing the landlord or one of the tenants, yet it is frequently made even more complicated because neither the landlord nor the tenant did any advance planning for the possibility of a dispute between tenants. Unfortunately, most of these disputes end up being costly and unpleasant for all involved, and much of the expense could have been saved with proper planning.
In this post, I'll address some of the basics of how to address a tenant dispute when it arises (from either the landlord or tenant's perspective), and then I will discuss a few ways advanced planning can prevent these disputes from escalating.
Know Which Law Applies
I've discussed many times before the difference between leases that are and are not covered by the Virginia Residential Landlord and Tenant Act (for a basic breakdown of figuring out which law applies to you, view my post here). This is a situation where it does matter whether or not your lease is covered by the VRLTA - especially if you are the landlord.
What a Landlord Should Do if Tenants are Fighting
As the landlord, if two tenants are fighting, it might be your temptation to throw up your hands and say "not my problem, you two work it out." This would be a mistake. A landlord is under an obligation to provide a home that is habitable and tenantable, and that includes a home where the tenant is safe and free from improper invasion of privacy, harassment, etc. If a tenant has a legitimate dispute with their fellow tenant in that their fellow tenant is actually preventing them from having quiet enjoyment of the property, they could be within their rights to terminate their lease early, force you to return their security deposit, and leave you with a smaller rent check each month than you had planned. Worse yet, if word of your lack of caring gets around, you may have trouble finding a new tenant. In other words, yes, it is your problem.
The first step you should take as a landlord is to investigate your lease to see if the offending tenant has, in fact, violated any provision of your lease. If they have, you can proceed with action for a breach of the lease against the tenant, including a 21/30 notice if your lease provides for it or is covered by the VRLTA. If, however, the offending tenant has not actually violated the lease, you could be in some trouble. If your lease is covered by the VRLTA, you have the right under Virginia Code Section 55-248.17 to adopt rules and regulations for how your tenants are to behave in the property - the only restrictions are that the rules must be reasonable, and must not amount to a "substantial modification" of the lease in which they entered. It is very unlikely that reasonable rules about how your tenants behave towards each other will be such a substantial modification, however. This is important, because once those rules are adopted (and I do recommend consulting an attorney in order to ensure they are prepared and adopted properly), a violation of those rules is legally equivalent to a violation of the lease.
The common law has no identical provision, however, and so if you have a common law lease, you can only adopt such rules and regulations if the lease expressly allows you to (I've said this before, and I'll say it again, the VRLTA leases is a double-edged sword and there absolutely are circumstances where it is more favorable to a landlord than the common law). If you have a common law lease and the lease does not include a rules and regulations clause, I would strongly advise you to consult with an attorney on how to proceed.
What a Tenant Should Do in a Dispute with Another Tenant
The first thing a tenant experiencing problems with another tenant should do is try to resolve your issues. If that fails, you should alert the landlord as soon as possible. This will give you an opportunity to see if your landlord will work with you to resolve the dispute. If your landlord fails to act, however, then you need to assess whether or not the other tenant is breaching the lease, violating the law, violating properly adopted rules or regulations, or is engaging in conduct that is making the home unlivable for you. If any of those situations is occurring, you likely have the right to provide a 21/30 notice to the landlord requiring the landlord to fix the situation within 21 days, or terminating your lease in 30 days (a more detailed explanation of 21/30 notices is in my post here).
How to Prevent these Issues
It probably does not surprise you that the vast majority of tenant dispute cases I see, both representing landlords and representing tenants, are cases where a) the lease is not governed by the VRLTA, b) the lease does not have a rules and regulations provision, and c) the offending tenant is not in actual violation of the lease or the law. Most of those cases, the landlord actually is interested in helping the tenant, but because of the way the law works, the cases end with the landlord agreeing to terminate the offended tenant's lease at no penalty. The landlord's not happy - they've lost a good tenant and are stuck with a bad one, and the offended tenant's not happy - they've had to move through no fault of their own. The sad thing is, it doesn't have to be this way.
First and foremost, landlords planning to rent to multiple tenants, and tenants planning to live with other tenants, should ensure that your lease itself contains provisions that not only outline a tenant's duties towards the property, but also a tenant's duties towards other tenant's. At a minimum, the lease should require tenant's to behave in a respectful manner towards each other, forbid tenants from entering the bedrooms of other tenants unless invited, forbid tenants from harassing or stalking other tenants, and require tenants to share household chores in a reasonable manner.
Additionally, all leases (even VRLTA leases, since it's always better to have in the lease instead of just the law) should have a rules and regulations provision. The provision should lay out how rules can be made, how they are adopted, how they come into force, and the effect of violating a rule or regulation. The simple reality is, the best lease drafter in the world cannot foresee every issue that might come up, and it's always a good idea to give you some power to handle issues as they may arise.
Conclusion
Disputes between tenants in a multiple tenancy property are one of the toughest issues we face in landlord/tenant law. It is made much tougher by the fact that most landlords renting to multiple tenants simply are not prepared for the possibility of such a dispute. With proper planning, such disputes do not need to be the horror show that they tend to be. If you are dealing with a tenant dispute, or would like to plan a lease or rules and regulations to deal with tenant disputes, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, our firm just completely revamped our website - you should feel free to check it out here.
Friday, September 25, 2015
Virginia Divorce and Your Retirement - What Happens to Your 401(k) When You Divorce?
As always, prior to reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link. Any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
In this day and age, saving up for retirement is a critical part of any person's career. When you get divorced, however, your retirement savings generally do not escape unscathed. After all, if your spouse has been staying at home to take care of the kids, allowing you to work and make substantial income, is it really fair for your spouse to get stuck with none of your retirement savings?
The law surrounding what happens to one's retirement in a divorce is very complicated. One blog post cannot possibly hope to capture the scope of this issue, but in this post, I hope to provide a basic outline of how retirement assets are handled in a divorce in Virginia.
Retirement Benefits Earned During Your Marriage are Marital Property - With One Big Exception
First of all, like all money earned while you are married, and property purchased with money earned while you are married, retirement benefits earned while you are married are marital property, and subject to division by a divorce court. There is one big exception to this, however, and that is Social Security benefits. Your Social Security benefits are always your separate property (this is by mandate of federal law), so a divorce court cannot touch your Social Security.
Now, you might already be thinking of some questions. How do I determine what benefits were and weren't earned during the marriage? What time period counts as "during the marriage"? How does a court determine how to divide those benefits? Moreover, since I can't touch my retirement until I'm a certain age, how does a court physically divide those assets?
The Basic Rules for Dividing Retirement Benefits
Well, first of all, the basic rules for dividing retirement benefits are laid out in the Code of Virginia - specifically Section 20-107.3(G)(1), where the Code states that "upon consideration of the [equitable distribution factors]... the court may direct payment of a percentage of the marital share of any [retirement account]... the court may only direct that payment be made as such benefits are payable. No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. 'Marital share' means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent."
So, let's parse all of that out. The first part tells us that retirement assets are divided upon consideration of the equitable distribution factors listed in Section 20-107.3(E). So this tells us that the division of a retirement account is, generally, subject to the same rules as division of all other marital property - meaning there is no automatic 50/50 division of the property, rather the court must decide what is fair based on the list of factors.
The next part just tells us that the court can divide retirement accounts. After that, we see that the court cannot require those benefits to be paid until they are actually payable - so you can't face a penalty for having an early withdrawal from a 401(k) since the court cannot force you to make such an early withdrawal.
Next, we see a requirement that the non-owning spouse cannot be awarded more than 50% of the marital share of the benefit. This is an important difference between how retirement benefits and other marital property are divided. While the court may generally conclude that the 20-107.3(E) factors warrant your ex getting 65% of the marital property, the court cannot award your ex more than 50% of the marital share of your retirement account.
Note also that the rule does not restrict the other direction. In other words, if the court determines that the factors under 20-107.3(E) warrant your ex only getting 35% of the marital property, then the court also has the option to only award your ex 35% of the marital share of your retirement benefits.
Finally, the section tells us that the "marital share" of those benefits is the rights in the benefits that are earned between the date of marriage and the date of separation (not the date of divorce), so all benefits earned after the separation are your separate property.
How to Calculate the Marital Share
So, saying how the marital share is defined is one thing - actually calculating it is quite another. So, what does all the legal jargon about "that portion of the total interest, the right to which was earned during the marriage" actually mean? Well, it depends on what type of retirement account you are referring to.
There are two types of retirement accounts - defined contribution plans, and defined benefit plans. A defined contribution plan is a plan where you contribute certain amounts over time, and then, within certain rules, once you reach a certain age you withdraw what you want to withdraw. Examples of defined contribution plans are 401(k)'s, federal Thrift Savings Plans, and IRAs. A defined benefit plan is one where, upon certain conditions being met, you become entitled to certain regular payments for the rest of your life (or until a set time). Examples of defined benefit plans are your standard pensions, retirement annuities, federal FERS and CSRS benefits, and Virginia state VRS benefits.
For defined contribution plans, the marital share is all contributions made between the date of marriage and the date of separation, plus all earnings and losses attributable solely to those contributions.
For defined benefit plans, the marital share is usually defined by a formula. You take the total number of months (a) between the date of marriage and date of separation, and (b) where you were employed by the employer whose plan you are dividing, and then divide that by the total number of months you were employed by the employer whose plan you are dividing (both during and not during the marriage).
An example would be that if you began work for an employer with a defined benefit plan on January 1, 2010, got married on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were employed during the marriage), and your denominator would be 36 (total months you were employed), for a fraction of 1/3.
Similarly, if you got married on January 1, 2010, began work for an employer with a defined benefit plan on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were both employed and married), and your denominator would be 24 (total months you were employed), for a fraction of 1/2.
Once you get your fraction, you then multiply it by your periodic payments, to give you the portion of those payments that is marital. This is not the portion your spouse gets - it's just the portion that is marital. That is the portion that gets divided.
How do courts physically divide the retirements?
So, this probably sounds very complicated, especially if you have to do it yourself. Moreover, since the benefits can't be kicked in until you'd normally be eligible, you might be wondering if you have to keep this in mind for potentially decades, then meticulously calculate a division of each payment. Fortunately, you do not - rather, the Court will enter an order directing your retirement benefit administrator on how to divide your retirement assets. It is then on your administrator to make sure it is done properly.
A federal law called the Employee Retirement Income Security Act of 1974 (ERISA), which has been amended multiple times since 1974, creates a large number of protections for retirement accounts, and also provides the means of dividing most retirement accounts. ERISA creates a concept known as the "Qualified Domestic Relations Order" (QDRO, generally pronounced like "quad-row"). QDROs are universally recognized orders that, if they meet certain conditions, will require a retirement administrator anywhere in America to properly divide a retirement account.
For defined contribution retirement plans, the QDRO will lay out the relevant dates, and then require the plan administrator to calculate the marital share, divide the marital share, then take the other spouse's portion of the marital share and open a 401(k), IRA, or other equivalent account in that spouse's name with the funds. Once the new account has been created and the money removed from one and put in the other (known as the funds being "segregated"), the process is complete and you are back to having complete control of your account. No penalties are given for early withdrawals, taxes, etc.
For defined benefit plans, the QDRO will contain the formula mentioned above, and the plan administrator will retain that until the denominator is determined (since you may still be working at that employer when you divorce). Once the denominator is determined, the administrator will determine the share of funds your ex will be entitled to, and once you retire and start earning funds, the account administrator will divert your ex's share directly to your ex.
Note, however, that ERISA does not apply to federal employees. As a result, federal retirement plans are divided by what is known as a "Court Order Acceptable for Processing" (COAP). Rules for COAPs are put out by OPM on a routine basis. Note that TSPs and FERS/CSRS plans have different administrators, so you will need a separate order for division of a TSP and for division of a FERS/CSRS plan.
Finally, the State Department and military each have their own systems separate from the rest of the federal government. The military will divide military retired pay via an allotment, which can be done if the proper language is included in the Final Decree of Divorce itself. State Department retirement plans must be divided per State Department rules.
Conclusion
Remember how I said at the beginning of this post that retirement division is far too complicated a topic for one post? Then do you see how complicated this post was? Well, I stand by what I said at the beginning - this post is only a basic overview. Once you get into the details, it gets very muddy. If you are involved in a divorce and there are substantial retirement assets involved, I cannot strongly enough recommend that you get an attorney. If you would like to discuss your case with an attorney, 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
In this day and age, saving up for retirement is a critical part of any person's career. When you get divorced, however, your retirement savings generally do not escape unscathed. After all, if your spouse has been staying at home to take care of the kids, allowing you to work and make substantial income, is it really fair for your spouse to get stuck with none of your retirement savings?
The law surrounding what happens to one's retirement in a divorce is very complicated. One blog post cannot possibly hope to capture the scope of this issue, but in this post, I hope to provide a basic outline of how retirement assets are handled in a divorce in Virginia.
Retirement Benefits Earned During Your Marriage are Marital Property - With One Big Exception
First of all, like all money earned while you are married, and property purchased with money earned while you are married, retirement benefits earned while you are married are marital property, and subject to division by a divorce court. There is one big exception to this, however, and that is Social Security benefits. Your Social Security benefits are always your separate property (this is by mandate of federal law), so a divorce court cannot touch your Social Security.
Now, you might already be thinking of some questions. How do I determine what benefits were and weren't earned during the marriage? What time period counts as "during the marriage"? How does a court determine how to divide those benefits? Moreover, since I can't touch my retirement until I'm a certain age, how does a court physically divide those assets?
The Basic Rules for Dividing Retirement Benefits
Well, first of all, the basic rules for dividing retirement benefits are laid out in the Code of Virginia - specifically Section 20-107.3(G)(1), where the Code states that "upon consideration of the [equitable distribution factors]... the court may direct payment of a percentage of the marital share of any [retirement account]... the court may only direct that payment be made as such benefits are payable. No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. 'Marital share' means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent."
So, let's parse all of that out. The first part tells us that retirement assets are divided upon consideration of the equitable distribution factors listed in Section 20-107.3(E). So this tells us that the division of a retirement account is, generally, subject to the same rules as division of all other marital property - meaning there is no automatic 50/50 division of the property, rather the court must decide what is fair based on the list of factors.
The next part just tells us that the court can divide retirement accounts. After that, we see that the court cannot require those benefits to be paid until they are actually payable - so you can't face a penalty for having an early withdrawal from a 401(k) since the court cannot force you to make such an early withdrawal.
Next, we see a requirement that the non-owning spouse cannot be awarded more than 50% of the marital share of the benefit. This is an important difference between how retirement benefits and other marital property are divided. While the court may generally conclude that the 20-107.3(E) factors warrant your ex getting 65% of the marital property, the court cannot award your ex more than 50% of the marital share of your retirement account.
Note also that the rule does not restrict the other direction. In other words, if the court determines that the factors under 20-107.3(E) warrant your ex only getting 35% of the marital property, then the court also has the option to only award your ex 35% of the marital share of your retirement benefits.
Finally, the section tells us that the "marital share" of those benefits is the rights in the benefits that are earned between the date of marriage and the date of separation (not the date of divorce), so all benefits earned after the separation are your separate property.
How to Calculate the Marital Share
So, saying how the marital share is defined is one thing - actually calculating it is quite another. So, what does all the legal jargon about "that portion of the total interest, the right to which was earned during the marriage" actually mean? Well, it depends on what type of retirement account you are referring to.
There are two types of retirement accounts - defined contribution plans, and defined benefit plans. A defined contribution plan is a plan where you contribute certain amounts over time, and then, within certain rules, once you reach a certain age you withdraw what you want to withdraw. Examples of defined contribution plans are 401(k)'s, federal Thrift Savings Plans, and IRAs. A defined benefit plan is one where, upon certain conditions being met, you become entitled to certain regular payments for the rest of your life (or until a set time). Examples of defined benefit plans are your standard pensions, retirement annuities, federal FERS and CSRS benefits, and Virginia state VRS benefits.
For defined contribution plans, the marital share is all contributions made between the date of marriage and the date of separation, plus all earnings and losses attributable solely to those contributions.
For defined benefit plans, the marital share is usually defined by a formula. You take the total number of months (a) between the date of marriage and date of separation, and (b) where you were employed by the employer whose plan you are dividing, and then divide that by the total number of months you were employed by the employer whose plan you are dividing (both during and not during the marriage).
An example would be that if you began work for an employer with a defined benefit plan on January 1, 2010, got married on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were employed during the marriage), and your denominator would be 36 (total months you were employed), for a fraction of 1/3.
Similarly, if you got married on January 1, 2010, began work for an employer with a defined benefit plan on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were both employed and married), and your denominator would be 24 (total months you were employed), for a fraction of 1/2.
Once you get your fraction, you then multiply it by your periodic payments, to give you the portion of those payments that is marital. This is not the portion your spouse gets - it's just the portion that is marital. That is the portion that gets divided.
How do courts physically divide the retirements?
So, this probably sounds very complicated, especially if you have to do it yourself. Moreover, since the benefits can't be kicked in until you'd normally be eligible, you might be wondering if you have to keep this in mind for potentially decades, then meticulously calculate a division of each payment. Fortunately, you do not - rather, the Court will enter an order directing your retirement benefit administrator on how to divide your retirement assets. It is then on your administrator to make sure it is done properly.
A federal law called the Employee Retirement Income Security Act of 1974 (ERISA), which has been amended multiple times since 1974, creates a large number of protections for retirement accounts, and also provides the means of dividing most retirement accounts. ERISA creates a concept known as the "Qualified Domestic Relations Order" (QDRO, generally pronounced like "quad-row"). QDROs are universally recognized orders that, if they meet certain conditions, will require a retirement administrator anywhere in America to properly divide a retirement account.
For defined contribution retirement plans, the QDRO will lay out the relevant dates, and then require the plan administrator to calculate the marital share, divide the marital share, then take the other spouse's portion of the marital share and open a 401(k), IRA, or other equivalent account in that spouse's name with the funds. Once the new account has been created and the money removed from one and put in the other (known as the funds being "segregated"), the process is complete and you are back to having complete control of your account. No penalties are given for early withdrawals, taxes, etc.
For defined benefit plans, the QDRO will contain the formula mentioned above, and the plan administrator will retain that until the denominator is determined (since you may still be working at that employer when you divorce). Once the denominator is determined, the administrator will determine the share of funds your ex will be entitled to, and once you retire and start earning funds, the account administrator will divert your ex's share directly to your ex.
Note, however, that ERISA does not apply to federal employees. As a result, federal retirement plans are divided by what is known as a "Court Order Acceptable for Processing" (COAP). Rules for COAPs are put out by OPM on a routine basis. Note that TSPs and FERS/CSRS plans have different administrators, so you will need a separate order for division of a TSP and for division of a FERS/CSRS plan.
Finally, the State Department and military each have their own systems separate from the rest of the federal government. The military will divide military retired pay via an allotment, which can be done if the proper language is included in the Final Decree of Divorce itself. State Department retirement plans must be divided per State Department rules.
Conclusion
Remember how I said at the beginning of this post that retirement division is far too complicated a topic for one post? Then do you see how complicated this post was? Well, I stand by what I said at the beginning - this post is only a basic overview. Once you get into the details, it gets very muddy. If you are involved in a divorce and there are substantial retirement assets involved, I cannot strongly enough recommend that you get an attorney. If you would like to discuss your case with an attorney, 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!
Friday, September 11, 2015
Legal FAQ Part V
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Once a staple of this blog, I discovered today that I haven't done a true Legal FAQ since February of last year! As with my previous FAQ's, today I will answer questions that I am frequently asked by friends, family, clients and others, but which, in my opinion, don't really warrant a full blog post of their own. As you will see, one topic from the news has been dominating my discussions with people who have these kinds of questions lately, so it will also be dominating this FAQ. You can find my previous FAQ's here:
FAQ Part I
FAQ Part II
FAQ Part III
FAQ Part IV
Why was it constitutional to jail Kim Davis?
This is the question I've gotten from non-attorney friends the most recently - and not surprisingly. In case you've been living under a rock, Kim Davis is the county clerk in Kentucky who refused to issue marriage licenses because if she did so, she would have to issue them to same-sex couples, and doing so violates her religious beliefs. A federal judge said that her religious beliefs do not allow her to refuse to do her work duties and ordered her to resume issuing licenses. When she refused, she was sent to jail for contempt of court.
Here's the thing - when someone works for the government, they act as an arm of the government while they are working. If your religious beliefs prevent you from performing your duties as a government official, you simply cannot hold that title. You have a right to believe whatever you want, to worship who you want and how you want, but you do not have a right to impose that belief on others, and when you are in a position of power in the government, that generally means you cannot use your own religious beliefs in a way that prevents you from providing services to the public. As such, Ms. Davis had no right to withhold those licenses - she needed to either resign, or issue the licenses. When she refused, she was correctly jailed for contempt. It would be the same result for, say, a conservative Muslim DMV clerk who didn't want to issue driver's licenses to women, or an Orthodox Jewish SBA employee who didn't want to approve loans to businesses that would be open on Saturdays.
Now, unfortunately, a lot of misinformation out there has caused this case to be compared to a recent Supreme Court opinion in which Abercrombie and Fitch was found to have discriminated against a Muslim woman because they wouldn't hire her since she couldn't abide by their employee dress code. This is a false comparison for a wide variety of reasons. First, the issue in front of the Supreme Court was largely unrelated to the underlying issue - Abercrombie actually essentially admitted they discriminated, but claimed that because they'd only guessed she was Muslim (rather than her having actually told them that she was) then the relevant federal civil rights law didn't apply. The Supreme Court (in my opinion correctly) said that argument was ridiculous. Now, on the broader law, federal civil rights laws say that it is religious discrimination not only if a company refuses to hire someone solely because of their religion, but also if the company refuses to hire someone or fires someone because the practice of their religion conflicts with the policies of the employer, so long as it is possible to reasonably accommodate the employee's practices.
So, you not only can't refuse to hire someone because of their religion, you also must allow them to practice their religion so long as doing so would be reasonable. So, what is a "reasonable accommodation"? Generally speaking, this is something where it would not particularly burden the employer or hurt the company to accommodate the practice. What is generally not seen as a "reasonable accommodation" however is changing one of the core functions of the job. In the Abercrombie and Fitch case, most people agreed that adhering to the employee dress code was not a core function of the job, and that accommodating the woman by allowing her to wear a head scarf was not a substantial burden of any kind. In other cases, however, it has been held to not be discrimination to, say, require people to work on certain religious holidays (so long as certain pre-conditions are met), to require Muslim waiters/waitresses to serve alcohol, and other actions where, again, one of the core functions of the job is involved.
Now, it's important to note first of all that these laws apply to private employers. Government employers actually have more flexibility in how they treat their employees because there is special consideration given to the fact that the employees speak for the government. Nonetheless, even if the government were treated the same way Ms. Davis would not fit into the discrimination category. Why? Kentucky law requires all court clerks to issue marriage licenses, and court clerks are the only people who issue marriage licenses in Kentucky. To that end, accommodating Ms. Davis would be doubly unreasonable - issuing licenses is a core function of her job, and failing to issue them substantially burdens the citizenry since they'd have to leave the county to get a license elsewhere.
Ultimately, I'm reminded of the quote of a constitutional law professor in Maryland some years back: "People place their hand on the Bible and swear to uphold the Constitution; they don't put their hand on the Constitution and swear to uphold the Bible." The moment Ms. Davis became a government official, she surrendered the right to use her religion as a basis to defy the law. Her proper course of action was to resign. When she failed to do that, the court did what it needed to do.
Is the Dred Scott decision really still the "law of the land" but just ignored by politicians and courts?
I had hoped my missive about Kim Davis would be all I'd need to write on this topic, but yesterday a completely bone-headed comment by presidential candidate Mike Huckabee caught my attention and led to more questions. In his quest to argue that the Supreme Court really doesn't have the "final say" in what is and isn't constitutional, Huckabee argued that the infamous Dred Scott decision of 1857, which declared African-Americans to be less than human, and subsequently incapable of being citizens of the United States, is still the "law of the land" but is simply disregarded by courts and politicians today. I can confidently say, however, that Mr. Huckabee is dead wrong.
You see, out of all the things he gets wrong, Huckabee gets one thing right - the Supreme Court doesn't have the "final say" of what is and isn't constitutional. Now, it does have the final say over what is and isn't constitutional at the moment that the court considers the case - and that has been the case since 1804 - but as anyone who passed middle school civics will tell you, that's not the end. Congress and the states have the power to change the constitution by way of an amendment, and any Supreme Court opinion to the contrary prior to the passage of that amendment is then effectively overruled. While Dred Scott was the law of the land in 1857, literally every single thing that it held was overturned by the 13th, 14th and 15th amendments, which were ratified in 1865, 1868 and 1870 respectively. As a result, Dred Scott has absolutely not been the "law of the land" since at least 1870.
How does Kim Davis differ from a conscientious objector?
Sigh... Yep, not getting away from the Kim Davis questions, am I? Ok, this is another one I've been asked about a lot because Ms. Davis's attorneys themselves brought it up. They pointed out that we have a long history in this country of recognizing conscientious objection, and Ms. Davis should be treated the same. For those who don't know, a conscientious objector is someone who belongs to a religion that believes war, in all circumstances, is morally wrong, and who subsequently will not join the military, even in a draft. The most well known religious group holding this view is the Quakers.
Now, historically, the US has honored conscientious objection. When we have had drafts, there is quite an extensive review to go through to make sure it's an honestly held belief - not just an effort to get out of the draft - but if proven, conscientious objectors have been exempt from drafts. What's important to note, however, is that the courts held multiple times that the US is not required to honor conscientious objection. There are many good reasons to do so, but the next time the US has a draft, the Congress could very well decide "eh, we'll just draft everyone" and that would be perfectly allowed. However, there's a more important distinction here. Conscientious objection allowed people to not be put into a position where they would have to violate their religious beliefs to do their job - Ms. Davis is already in that position. A more direct comparison would be a Quaker who voluntarily joins the army, collects an army paycheck, obtains army benefits, and then refuses to be deployed - that simply would not be allowed.
So does anyone other than the courts get a say in what's constitutional?
So, in light of the above, you might be thinking that it's fairly clear cut that only the court's opinion of constitutionality matters. This couldn't be further from the truth. Beyond the power to amend, every single government employee has also taken an oath to uphold the constitution. While the Supreme Court may have the final say on what is and isn't constitutional as the constitution is currently written, the other branches of government still have to make their own analysis and, within limits, can act accordingly even if they disagree with the Supreme Court.
First of all, when the Court rules a law unconstitutional, it is unenforceable, period. But when the Court finds something constitutional, the law can still be repealed because members of Congress and the President disagree. Members of Congress can vote against a law they believe unconstitutional, and a President can veto a law he or she believes unconstitutional - in fact, I would hope that they would in such a situation. A President even has the power to refuse to enforce a law he or she believes unconstitutional, unless and until a court orders otherwise. In other words, the Supreme Court may have the "final" say, but it does not have the "only" say.
Final Thought
Today is a rough day for many people in this country. Fourteen years ago, the horrors of war and terror were brought to our shores. Yet, we also saw this country's ability to stand together as one. As political discourse gets worse and worse in this country, I simply pray that we all remember that we are all Americans - and that "same" is far more important than any of our "differents."
Introduction
Once a staple of this blog, I discovered today that I haven't done a true Legal FAQ since February of last year! As with my previous FAQ's, today I will answer questions that I am frequently asked by friends, family, clients and others, but which, in my opinion, don't really warrant a full blog post of their own. As you will see, one topic from the news has been dominating my discussions with people who have these kinds of questions lately, so it will also be dominating this FAQ. You can find my previous FAQ's here:
FAQ Part I
FAQ Part II
FAQ Part III
FAQ Part IV
Why was it constitutional to jail Kim Davis?
This is the question I've gotten from non-attorney friends the most recently - and not surprisingly. In case you've been living under a rock, Kim Davis is the county clerk in Kentucky who refused to issue marriage licenses because if she did so, she would have to issue them to same-sex couples, and doing so violates her religious beliefs. A federal judge said that her religious beliefs do not allow her to refuse to do her work duties and ordered her to resume issuing licenses. When she refused, she was sent to jail for contempt of court.
Here's the thing - when someone works for the government, they act as an arm of the government while they are working. If your religious beliefs prevent you from performing your duties as a government official, you simply cannot hold that title. You have a right to believe whatever you want, to worship who you want and how you want, but you do not have a right to impose that belief on others, and when you are in a position of power in the government, that generally means you cannot use your own religious beliefs in a way that prevents you from providing services to the public. As such, Ms. Davis had no right to withhold those licenses - she needed to either resign, or issue the licenses. When she refused, she was correctly jailed for contempt. It would be the same result for, say, a conservative Muslim DMV clerk who didn't want to issue driver's licenses to women, or an Orthodox Jewish SBA employee who didn't want to approve loans to businesses that would be open on Saturdays.
Now, unfortunately, a lot of misinformation out there has caused this case to be compared to a recent Supreme Court opinion in which Abercrombie and Fitch was found to have discriminated against a Muslim woman because they wouldn't hire her since she couldn't abide by their employee dress code. This is a false comparison for a wide variety of reasons. First, the issue in front of the Supreme Court was largely unrelated to the underlying issue - Abercrombie actually essentially admitted they discriminated, but claimed that because they'd only guessed she was Muslim (rather than her having actually told them that she was) then the relevant federal civil rights law didn't apply. The Supreme Court (in my opinion correctly) said that argument was ridiculous. Now, on the broader law, federal civil rights laws say that it is religious discrimination not only if a company refuses to hire someone solely because of their religion, but also if the company refuses to hire someone or fires someone because the practice of their religion conflicts with the policies of the employer, so long as it is possible to reasonably accommodate the employee's practices.
So, you not only can't refuse to hire someone because of their religion, you also must allow them to practice their religion so long as doing so would be reasonable. So, what is a "reasonable accommodation"? Generally speaking, this is something where it would not particularly burden the employer or hurt the company to accommodate the practice. What is generally not seen as a "reasonable accommodation" however is changing one of the core functions of the job. In the Abercrombie and Fitch case, most people agreed that adhering to the employee dress code was not a core function of the job, and that accommodating the woman by allowing her to wear a head scarf was not a substantial burden of any kind. In other cases, however, it has been held to not be discrimination to, say, require people to work on certain religious holidays (so long as certain pre-conditions are met), to require Muslim waiters/waitresses to serve alcohol, and other actions where, again, one of the core functions of the job is involved.
Now, it's important to note first of all that these laws apply to private employers. Government employers actually have more flexibility in how they treat their employees because there is special consideration given to the fact that the employees speak for the government. Nonetheless, even if the government were treated the same way Ms. Davis would not fit into the discrimination category. Why? Kentucky law requires all court clerks to issue marriage licenses, and court clerks are the only people who issue marriage licenses in Kentucky. To that end, accommodating Ms. Davis would be doubly unreasonable - issuing licenses is a core function of her job, and failing to issue them substantially burdens the citizenry since they'd have to leave the county to get a license elsewhere.
Ultimately, I'm reminded of the quote of a constitutional law professor in Maryland some years back: "People place their hand on the Bible and swear to uphold the Constitution; they don't put their hand on the Constitution and swear to uphold the Bible." The moment Ms. Davis became a government official, she surrendered the right to use her religion as a basis to defy the law. Her proper course of action was to resign. When she failed to do that, the court did what it needed to do.
Is the Dred Scott decision really still the "law of the land" but just ignored by politicians and courts?
I had hoped my missive about Kim Davis would be all I'd need to write on this topic, but yesterday a completely bone-headed comment by presidential candidate Mike Huckabee caught my attention and led to more questions. In his quest to argue that the Supreme Court really doesn't have the "final say" in what is and isn't constitutional, Huckabee argued that the infamous Dred Scott decision of 1857, which declared African-Americans to be less than human, and subsequently incapable of being citizens of the United States, is still the "law of the land" but is simply disregarded by courts and politicians today. I can confidently say, however, that Mr. Huckabee is dead wrong.
You see, out of all the things he gets wrong, Huckabee gets one thing right - the Supreme Court doesn't have the "final say" of what is and isn't constitutional. Now, it does have the final say over what is and isn't constitutional at the moment that the court considers the case - and that has been the case since 1804 - but as anyone who passed middle school civics will tell you, that's not the end. Congress and the states have the power to change the constitution by way of an amendment, and any Supreme Court opinion to the contrary prior to the passage of that amendment is then effectively overruled. While Dred Scott was the law of the land in 1857, literally every single thing that it held was overturned by the 13th, 14th and 15th amendments, which were ratified in 1865, 1868 and 1870 respectively. As a result, Dred Scott has absolutely not been the "law of the land" since at least 1870.
How does Kim Davis differ from a conscientious objector?
Sigh... Yep, not getting away from the Kim Davis questions, am I? Ok, this is another one I've been asked about a lot because Ms. Davis's attorneys themselves brought it up. They pointed out that we have a long history in this country of recognizing conscientious objection, and Ms. Davis should be treated the same. For those who don't know, a conscientious objector is someone who belongs to a religion that believes war, in all circumstances, is morally wrong, and who subsequently will not join the military, even in a draft. The most well known religious group holding this view is the Quakers.
Now, historically, the US has honored conscientious objection. When we have had drafts, there is quite an extensive review to go through to make sure it's an honestly held belief - not just an effort to get out of the draft - but if proven, conscientious objectors have been exempt from drafts. What's important to note, however, is that the courts held multiple times that the US is not required to honor conscientious objection. There are many good reasons to do so, but the next time the US has a draft, the Congress could very well decide "eh, we'll just draft everyone" and that would be perfectly allowed. However, there's a more important distinction here. Conscientious objection allowed people to not be put into a position where they would have to violate their religious beliefs to do their job - Ms. Davis is already in that position. A more direct comparison would be a Quaker who voluntarily joins the army, collects an army paycheck, obtains army benefits, and then refuses to be deployed - that simply would not be allowed.
So does anyone other than the courts get a say in what's constitutional?
So, in light of the above, you might be thinking that it's fairly clear cut that only the court's opinion of constitutionality matters. This couldn't be further from the truth. Beyond the power to amend, every single government employee has also taken an oath to uphold the constitution. While the Supreme Court may have the final say on what is and isn't constitutional as the constitution is currently written, the other branches of government still have to make their own analysis and, within limits, can act accordingly even if they disagree with the Supreme Court.
First of all, when the Court rules a law unconstitutional, it is unenforceable, period. But when the Court finds something constitutional, the law can still be repealed because members of Congress and the President disagree. Members of Congress can vote against a law they believe unconstitutional, and a President can veto a law he or she believes unconstitutional - in fact, I would hope that they would in such a situation. A President even has the power to refuse to enforce a law he or she believes unconstitutional, unless and until a court orders otherwise. In other words, the Supreme Court may have the "final" say, but it does not have the "only" say.
Final Thought
Today is a rough day for many people in this country. Fourteen years ago, the horrors of war and terror were brought to our shores. Yet, we also saw this country's ability to stand together as one. As political discourse gets worse and worse in this country, I simply pray that we all remember that we are all Americans - and that "same" is far more important than any of our "differents."
Friday, August 28, 2015
No Blog Post Today
When I wrote my post in early May about switching to doing this blog every other Friday, I noted that even then, I expected I will miss some weeks. That time has finally come. I just returned from vacation and have a mountain of work facing me. As a result, I will be taking this week off from posting. You can expect my next post in two weeks. Sorry for the inconvenience!
Friday, August 14, 2015
Virginia Termination of Parental Rights - An Overview
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
At the hearing on the matter, the petitioner, the child (through his or her guardian ad litem), the other parents and guardians and the Department of Social Services all have the right to put on evidence. After hearing all of the evidence, the court must determine whether it has been proven by "clear and convincing evidence" (so, more than a preponderance of evidence, but not as strict as beyond a reasonable doubt) that termination of the parental rights is in the child's best interest. In other words, "I don't want to pay child support" isn't a good enough legal reason to terminate your parental rights, even if that is your motivation. It is also very likely that at least one of the above parties will oppose your efforts (for example, the other parent may not be ok with you never paying child support again).
It is worth noting that many courts have read this code section to require the petitioning parent to actually have custody of the child, and thus dismisses petitions filed by a non-custodial parent. This is not settled law yet. As a result, most "voluntary" terminations of parental rights actually occur in cases where an involuntary termination petition is filed, but the parent consents to the termination.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
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