It's the Friday two weeks after my last blog post, so I'm due for another, but as it is New Year's Day and I have been off work today, I cannot say the inspiration for a post is flowing. As a result, I'm going to use this post just to give some updates about this blog.
First, after receiving about 40 requests for initial consultations over the course of the past several months from people outside of the geographic area I handle cases in, I decided it was time to add my initial consultation policy to this blog, so it is now linked at the top of the blog with my disclaimer, comment policy, etc. This policy outlines what conditions must be met in order for you to meet with me for a free initial consultation (the key one being the physical location of your case), while also discussing what to do if you want to discuss a legal issue with me but don't qualify for an initial consultation. I'd recommend anyone who'd like to discuss an issue with me to read this policy first.
Second, my second child is due to be born in March. As this blog was started after I'd already returned to work following the birth of my first child, I have no base knowledge as to how this is going to affect my posting schedule. Needless to say, however, I would expect that from around February until maybe May or so, you can expect some erratic posting.
Third, as always, I remain open to suggested blog topics from readers, and to other attorneys or related professionals who wish to do a guest post. Just shoot me an e-mail at SLeven@thebaldwinlawfirm.com.
Fourth, I've had a few people reach out to me and ask some questions about the firm I work for - as you can find elsewhere in this blog, I am employed by The Baldwin Law Firm. My boss, Roy Baldwin, has been practicing law in Northern Virginia since the 1970's. I worked for the firm the summer after my first year of law school, then began full time in December of 2010. At that time there was another attorney working at the firm, but he left in February of 2011, so for nearly two years thereafter, it was just me and Mr. Baldwin as a two attorney firm. In February of 2013, a new associate was hired while I was on paternity leave, and then in November of 2013, Mr. Baldwin's son, Nate, joined the firm, making us a four attorney firm (a big shock to my system after having been one of two for so long). In February of 2015, our other associate moved on to open the first Northern Virginia office of a national family law firm, leaving us as a three attorney firm, which is where I anticipate we will stay for some time. You can learn a lot more about us at our website: http://www.thebaldwinlawfirm.com.
Fifth and finally, this one is just for fun - I've mentioned a few times that the "wheels of justice turn slowly" and that some cases truly can drag on for ages. I've had two people write to me and ask me what the longest-lasting case I've been involved with in my career to date is. In reality, that's a complicated question for an attorney who does family law - cases can go on for years and years in many instances since things like custody and support can routinely be changed. So, if you're talking about "the longest case" in the sense of the same people fighting about the same basic issues, then there is a case where I assisted in handling a custody dispute in the summer after my first year of law school (summer of 2008) when I had my summer job at my current firm - and those two parents are still fighting over custody and support for their kids to this day with the most recent trial having just been held four months ago.
If you're talking about "the longest case" in the sense of from when a particular complaint or motion was filed until the trial happened and that particular complaint or motion was resolved (so, no post-trial modifications involved), then there was a case I took a few counties away in which DCSE sued my client for alleged missed child support payments (he claimed he had paid in full), and the combination of some complicated issues and a loaded court docket caused this one to go quite long. Specifically, the case was filed in November of 2012, and the actual trial did not occur until September of 2014, so that case went nearly two years without there being any appeals or post-trial issues involved.
And that's all I have to start off the new year. I'll see you all again in two weeks!
Friday, January 1, 2016
Friday, December 18, 2015
A Brief Overview of Virginia Attorney-Client Privilege Law
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 in this post apply only to the Commonwealth of Virginia.
Introduction
Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means. I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof. Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.
Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.
A Brief History of the Privilege
As you probably know, attorneys have existed in some form or another since the Roman period. Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England. There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had. Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them. The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.
This is still the philosophical underpinning of attorney-client privilege. It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages. It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.
So, What Does Privilege Cover?
Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm. That's it.
So, a few important things to note about the above. First, privilege never expires. Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death. Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you). Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged. Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails. Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney. Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).
How Privilege Works
So, now that we know what privilege covers, it's worth discussing how privilege actually works. So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this. This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc. If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained. In other words, nothing privileged you tell your attorney can be used against you. Unless the privilege is waived.
How Privilege Gets Waived
So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived. Privilege can be waived many ways and for many purposes, both intentionally and unintentionally. It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.
So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do. The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.
Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm). It does not matter who does the revealing - it can be you or your attorney. It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization. If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them. If the revelation ends up hurting you, you can also sue your attorney for malpractice. Nonetheless, the privilege remains waived.
Now, fortunately, this rule about revelation is not nearly as harsh as it used to be. Courts recognize the supreme importance of the privilege, and protect it diligently. As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter. Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.
Similarly, where waivers are found, the scopes of those waivers are very limited. With very rare exception, the courts virtually never find privilege to be fully waived. Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed. For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop. I also stole Jerry's bike." Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop." Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."
As you might imagine, privilege is actually waived routinely in most cases. This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side. Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.
Exceptions to Privilege
Now, as you might imagine, there are some exceptions to privilege. These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable. There are a lot of exceptions to privilege, but most of them are very fact specific. Here are the most common exceptions I encounter:
Conclusion
Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand. If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.
Introduction
Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means. I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof. Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.
Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.
A Brief History of the Privilege
As you probably know, attorneys have existed in some form or another since the Roman period. Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England. There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had. Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them. The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.
This is still the philosophical underpinning of attorney-client privilege. It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages. It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.
So, What Does Privilege Cover?
Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm. That's it.
So, a few important things to note about the above. First, privilege never expires. Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death. Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you). Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged. Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails. Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney. Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).
How Privilege Works
So, now that we know what privilege covers, it's worth discussing how privilege actually works. So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this. This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc. If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained. In other words, nothing privileged you tell your attorney can be used against you. Unless the privilege is waived.
How Privilege Gets Waived
So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived. Privilege can be waived many ways and for many purposes, both intentionally and unintentionally. It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.
So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do. The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.
Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm). It does not matter who does the revealing - it can be you or your attorney. It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization. If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them. If the revelation ends up hurting you, you can also sue your attorney for malpractice. Nonetheless, the privilege remains waived.
Now, fortunately, this rule about revelation is not nearly as harsh as it used to be. Courts recognize the supreme importance of the privilege, and protect it diligently. As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter. Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.
Similarly, where waivers are found, the scopes of those waivers are very limited. With very rare exception, the courts virtually never find privilege to be fully waived. Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed. For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop. I also stole Jerry's bike." Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop." Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."
As you might imagine, privilege is actually waived routinely in most cases. This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side. Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.
Exceptions to Privilege
Now, as you might imagine, there are some exceptions to privilege. These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable. There are a lot of exceptions to privilege, but most of them are very fact specific. Here are the most common exceptions I encounter:
- Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests. This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
- Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
- A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.
Conclusion
Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand. If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.
Friday, December 4, 2015
Settling Custody, Visitation and Child Support in Virginia
As always, please review my disclaimer before reading this post by clicking on the link above or on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Additional disclaimer - I represented the appellant in the Virginia Court of Appeals in the case of Everett v. Carome discussed below. That case is mentioned not as an example of my work, nor to provide any example of my abilities as an attorney, but rather solely to discuss the legal implications of the ruling issued in that case. Nonetheless, you should be aware that my personal involvement in the case may influence the way I view the ruling, and my interpretation thereof.
Introduction
One of the general principles behind settlement agreements in court cases is the notion that individuals will always look out for their own best interests first. As a result, if you decide settling a case a certain way is in your best interest, who is a judge to say otherwise? But what happens when your settlement affects someone else - someone who didn't get any say in what you decided? This is the questions judges are routinely faced with when dealing with custody, visitation and child support cases that have been settled between the child's parents.
In this blog post, I will be discussing the additional factors you must deal with when settling a child custody, visitation and/or support case, that you don't normally have to deal with in other settlements.
The "Best Interest" Standard and the Court as Final Arbiter
The most basic rule about settling custody, visitation and/or child support cases is that these settlements must be in the "best interest" not of either parent, but of the child. Since it's entirely conceivable that both parents will have interests that differ from the interests of the child, it is the court's responsibility to determine what is in the child's best interest. This means that no settlement is binding on the court, and a court can void any settlement or any portion of a settlement that it deems not in the child's best interests.
Settlements Are Still Allowed
Despite this rule, which dates back to the 1800's, the General Assembly has passed a number of laws making it clear that the court is to give great deference to any settlement reached by the parents regarding the issues of custody, visitation and/or child support. The idea behind this is that, at the end of the day, the parents are usually going to have a better idea of what is best for their child than the court. As a result, the present rule is that a settlement on the issues of child custody, visitation, and/or child support will be approved by the court unless the settlement is within one of the categories of settlements that are automatically forbidden, or it can actually be proven that a proposed settlement is not in the child's best interest.
Types of Forbidden Settlements
So, what kinds of settlements are strictly forbidden? There's no statutory law that lays this out, so these rules are developed from case law, meaning they are still evolving. Nonetheless, there are some types of settlements that are so well established as to be forbidden, that if a judge misses the issue originally and approves a settlement in this category and someone comes back years later and says "hey, this settlement shouldn't have been approved" the settlement can still be undone. The key types of settlements that are strictly forbidden are:
Other Challenges to Settlements
So, those are the only categories of settlements that are automatically invalid and unenforceable. If, however, a settlement is reached which does not fall into any of the above categories and then one parent wants to challenge it, or if a guardian ad litem has been appointed for the child and the guardian ad litem wishes to challenge the settlement, the settlement can still be invalidated if it is sufficiently proven to the court that the settlement is not in the child's best interests.
Modifications of a Settlement
So, considering that one of the types of settlements that is automatically invalid is a settlement that bars modification of custody, visitation and/or child support in the future, you might be wondering how those things are modified later. Well, the basic rule is that it is the same way as they would be modified without a settlement - the party moving to modify must show that there has been a "material change in circumstances" since the settlement was approved, and once they've done so, custody, visitation, and/or child support is fully re-opened to litigate or settle. There is a caveat, however. If your settlement took into account certain assumptions about what would happen in the future, and worked those assumptions into the settlement, then those predicted things happening cannot be a "material change in circumstances" even if they would be absent an agreement, since the assumption that those things would happen are already effectively a part of the current order.
Settling Custody, Visitation and/or Child Support is Worthwhile
So, reading all the above, you might be thinking "well, then why bother settling these things, if we have to go through all of this?" The answer is simple. First, like most settlements, you can do a lot of things in a settlement that the court can't do on its own. You can agree to have child support continue past the child turning 18. You can agree to have child support automatically change upon the incomes of the parents changing. You can agree to have visitation automatically change based on certain pre-determined conditions. In short, settlement gives you a lot more flexibility than you have in court.
Second, the vast majority of settlements aren't even contested. Most settlements to custody, visitation and/or child support cases that are presented to a court are not challenged by anyone and are not heavily scrutinized by the court. The courts are generally too busy to find an issue with a settlement on their own, and people don't usually renege on their settlements. As a result, the vast majority of custody, visitation and/or child support settlements that don't fall into the category of an automatically forbidden settlement are approved without contest, without trouble, and generally as easily as any other kind of settlement. Moreover, when those settlements are challenged, they are usually upheld.
In short, settlements in custody, visitation, and/or child support cases are usually flexible, and usually valid. As a result, if you can reach a settlement in your custody, visitation and/or child support case, it's still a good idea, despite the extra steps that have to be taken.
Conclusion
In recognition of the fact that parents might not always look out for their children's best interests, the courts serve as the final arbiter of those interests, and have the power to invalidate settlement agreements regarding child custody, visitation and/or support if the court finds those settlements to not be in the child's best interests. Nonetheless, the vast majority of such settlements are valid and approved under guidance from the General Assembly requiring the courts to give at least some deference to the parents' choices. If you are involved in drafting a custody, visitation and/or child support settlement or a dispute regarding one, 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 thirty minutes!
Additional disclaimer - I represented the appellant in the Virginia Court of Appeals in the case of Everett v. Carome discussed below. That case is mentioned not as an example of my work, nor to provide any example of my abilities as an attorney, but rather solely to discuss the legal implications of the ruling issued in that case. Nonetheless, you should be aware that my personal involvement in the case may influence the way I view the ruling, and my interpretation thereof.
Introduction
One of the general principles behind settlement agreements in court cases is the notion that individuals will always look out for their own best interests first. As a result, if you decide settling a case a certain way is in your best interest, who is a judge to say otherwise? But what happens when your settlement affects someone else - someone who didn't get any say in what you decided? This is the questions judges are routinely faced with when dealing with custody, visitation and child support cases that have been settled between the child's parents.
In this blog post, I will be discussing the additional factors you must deal with when settling a child custody, visitation and/or support case, that you don't normally have to deal with in other settlements.
The "Best Interest" Standard and the Court as Final Arbiter
The most basic rule about settling custody, visitation and/or child support cases is that these settlements must be in the "best interest" not of either parent, but of the child. Since it's entirely conceivable that both parents will have interests that differ from the interests of the child, it is the court's responsibility to determine what is in the child's best interest. This means that no settlement is binding on the court, and a court can void any settlement or any portion of a settlement that it deems not in the child's best interests.
Settlements Are Still Allowed
Despite this rule, which dates back to the 1800's, the General Assembly has passed a number of laws making it clear that the court is to give great deference to any settlement reached by the parents regarding the issues of custody, visitation and/or child support. The idea behind this is that, at the end of the day, the parents are usually going to have a better idea of what is best for their child than the court. As a result, the present rule is that a settlement on the issues of child custody, visitation, and/or child support will be approved by the court unless the settlement is within one of the categories of settlements that are automatically forbidden, or it can actually be proven that a proposed settlement is not in the child's best interest.
Types of Forbidden Settlements
So, what kinds of settlements are strictly forbidden? There's no statutory law that lays this out, so these rules are developed from case law, meaning they are still evolving. Nonetheless, there are some types of settlements that are so well established as to be forbidden, that if a judge misses the issue originally and approves a settlement in this category and someone comes back years later and says "hey, this settlement shouldn't have been approved" the settlement can still be undone. The key types of settlements that are strictly forbidden are:
- Right Terminations: Virginia has a very specific set of rules for how a parent's parental rights and obligations can be terminated (I did a blog post on this here). A settlement between the parents is not within those set ways rights can be terminated. As such, a custody/visitation agreement that permanently terminates one parent's parental rights and obligations is automatically invalid.
- Waivers of Support: No matter what you may have been offered in return, nothing, according to Virginia law, allows you to abrogate a child's right to be supported by both parents. This means that you cannot waive your right to receive child support in a child support settlement. This rule was established by the case of Kelley v. Kelley in the early 1990's when, in a divorce, a wife received the full value of the marital residence in exchange for her never being able to seek child support. The wife later sought child support anyways, and the Virginia Supreme Court said her pursuit of child support could go forward despite the agreement since the agreement was invalid due to the child support waiver. Note, however, that this bar is to permanent waivers of child support. There's nothing wrong with setting the current child support amount at $0 per month, as long as it can still be changed later.
- Jurisdiction-Stripping: Just as one fundamental rule is that a child has a right to support from both parents, another, as laid out above, is that the court must be able to serve as the arbiter of the child's best interests. As a result, agreements that forbid a party from going back to court later to modify custody, visitation, and/or support are also invalid. Now, an agreement can have provisions that provide for automatic modifications in certain situations, but an agreement cannot forbid a party from going to court to change custody, visitation and/or child support in a manner different from the manner laid out in the agreement (although the agreement can provide certain penalties for doing so, as long as the penalties are not unreasonable or outrageous).
- Modification Bars: As an offshoot on the ban of "jurisdiction stripping" is the notion that, since the court is the ultimate arbiter of a child's best interests, the court must have the power to modify custody, visitation and/or child support as the child's interests change over time. This means provisions of settlements that forbid future modifications are also invalid. In the child support context, this was raised as a side comment in Kelley, when the Virginia Supreme Court noted that agreements that "waive child support" and those that bar the court from exercising its power to modify child support or both types of agreements that are invalid. Since that wasn't actually at issue in Kelley, though, this rule was seen for some time as "dicta" (an appellate court statement that has no binding precedential effect since it was not necessary to the finding of the court). Nonetheless, in the early 2000's, the Court of Appeals dealt with a case called Shoup v. Shoup where an alleged stripping of the court's power to modify child support did occur. While the Court of Appeals ultimately concluded that the agreement at issue in that case didn't actually take away the modification power of the court, it finally made clear that if the agreement had, it would have been invalid. This still left open for some time, however, the question of whether or not an agreement could bar child support order from ever being reduced, since arguably it's only an agreement that bars child support from ever being increased that would harm a child's best interests. Many trial courts assumed that a child still has an interest as well in his or her non-custodial parent not being made destitute from a child support order they perhaps could no longer afford, and so child support must always be modifiable either way, but as recently as 2014 the Fairfax Circuit Court had a published opinion in a case called Host v. Host concluding that an agreement forbidding a downward child support modification was ok. This question was finally settled in August of 2015 in a Court of Appeals case called Everett v. Carome which found as a key to its ultimate ruling that the modification rule found in Kelley and in Shoup forbade agreements from barring downward child support adjustments as well. As a result, it is now clear law that no child support agreement can permanently forbid any kind of child support modification for minor children, whether that modification is upwards or downwards.
Other Challenges to Settlements
So, those are the only categories of settlements that are automatically invalid and unenforceable. If, however, a settlement is reached which does not fall into any of the above categories and then one parent wants to challenge it, or if a guardian ad litem has been appointed for the child and the guardian ad litem wishes to challenge the settlement, the settlement can still be invalidated if it is sufficiently proven to the court that the settlement is not in the child's best interests.
Modifications of a Settlement
So, considering that one of the types of settlements that is automatically invalid is a settlement that bars modification of custody, visitation and/or child support in the future, you might be wondering how those things are modified later. Well, the basic rule is that it is the same way as they would be modified without a settlement - the party moving to modify must show that there has been a "material change in circumstances" since the settlement was approved, and once they've done so, custody, visitation, and/or child support is fully re-opened to litigate or settle. There is a caveat, however. If your settlement took into account certain assumptions about what would happen in the future, and worked those assumptions into the settlement, then those predicted things happening cannot be a "material change in circumstances" even if they would be absent an agreement, since the assumption that those things would happen are already effectively a part of the current order.
Settling Custody, Visitation and/or Child Support is Worthwhile
So, reading all the above, you might be thinking "well, then why bother settling these things, if we have to go through all of this?" The answer is simple. First, like most settlements, you can do a lot of things in a settlement that the court can't do on its own. You can agree to have child support continue past the child turning 18. You can agree to have child support automatically change upon the incomes of the parents changing. You can agree to have visitation automatically change based on certain pre-determined conditions. In short, settlement gives you a lot more flexibility than you have in court.
Second, the vast majority of settlements aren't even contested. Most settlements to custody, visitation and/or child support cases that are presented to a court are not challenged by anyone and are not heavily scrutinized by the court. The courts are generally too busy to find an issue with a settlement on their own, and people don't usually renege on their settlements. As a result, the vast majority of custody, visitation and/or child support settlements that don't fall into the category of an automatically forbidden settlement are approved without contest, without trouble, and generally as easily as any other kind of settlement. Moreover, when those settlements are challenged, they are usually upheld.
In short, settlements in custody, visitation, and/or child support cases are usually flexible, and usually valid. As a result, if you can reach a settlement in your custody, visitation and/or child support case, it's still a good idea, despite the extra steps that have to be taken.
Conclusion
In recognition of the fact that parents might not always look out for their children's best interests, the courts serve as the final arbiter of those interests, and have the power to invalidate settlement agreements regarding child custody, visitation and/or support if the court finds those settlements to not be in the child's best interests. Nonetheless, the vast majority of such settlements are valid and approved under guidance from the General Assembly requiring the courts to give at least some deference to the parents' choices. If you are involved in drafting a custody, visitation and/or child support settlement or a dispute regarding one, 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 thirty minutes!
Friday, November 20, 2015
Virginia Law and the Blog Part IV - More Follow-up on Past Blog Posts
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 most useful things for me as a writer of this blog is getting questions from readers e-mailed to me asking me to elaborate on something I've had in the blog. It helps me know what people are interested in learning more about, and where some more detail could be helpful to people. Originally I tried to address this in follow up blog posts, but eventually I decided that it would be easier for me to consolidate these questions every now and then into what I've called "Law and the Blog" articles where I directly address some common questions I've received. This is the fourth iteration of that series - the last having been done in March.
"You mentioned in a previous post that if a child is permanently disabled, then after they become an adult, you can still be ordered to pay child support. I'm in that situation, except my ex just moved my son into an assisted living facility. I can't afford to help pay my son's assisted living costs and pay child support to my wife, so I'm stuck not helping my son - what can I do?"
If you're in this situation, you need to file to terminate your support obligation immediately. Post-majority child support for a disabled adult child is only authorized by statute if that child resides with the parent receiving the support. If the child is no longer residing with that parent (because, for example, the child has been moved into assisted living), then your support obligation should be terminated, and you should be able to contribute to your son's care directly.
"My ex has been refusing my court-ordered visitation with my daughter for no good reason - should I file a Motion to Modify Custody or for a Rule to Show Cause?"
Well, that's up to you - and to be clear, you are perfectly allowed to file both. For a Rule to Show Cause I would ask if the violations are repeating and significant. If they are, then it's probably worth pursuing, as your ex may well violate more court orders, and a contempt finding with a threat of jail time might be just what the doctor ordered for getting her to comply with court orders. As for the custody modification, you need to analyze whether or not changing custody would actually benefit your child. If your ex is going to ignore even a contempt finding, and will just never let you see your daughter, then it may well be that you taking custody is what's best for your daughter. If, however, you can get your ex to comply with the current order, you should consider why you want custody (is it because you actually want it, or just to punish your ex), why you don't currently have custody, and if yanking your daughter out of the home she's used to is really in her best interest.
I will say that when I practiced custody/visitation more regularly, I usually filed a Rule to Show Cause and only a Rule to Show Cause in these cases - but there were certainly more extreme cases in which I did pursue a custody modification.
"Why did the whole Kim Davis thing bother you so much?"
When I was in college, I met an international student from Central Asia and got to talking about why he wanted to come and learn in America. He told me about how in his country, they did not have a free press, but it was free enough that they got fairly unfiltered world news (it was domestic stories that were more suppressed). He remembered watching the fallout of the 2000 election in America, and was sad to see such a great nation fall into such turmoil. After the court ruled against Al Gore, he waited to hear about the ensuing civil unrest and breakdown of order. And waited. And then he learned that, rather than lead a revolution, Gore had simply conceded, Americans, including Gore's hardest core supporters, moved on with their lives, and that was that. To him, the notion that a court could issue an order (a 5-4 decision at that), and the nation would say "ok" and that be the end of it was completely novel to him, and he immediately fell in love with the idea of America.
You want to know what makes America truly exceptional? The rule of law. We are one of the few countries in the world where the rule of law is taken seriously, and reigns supreme over virtually everything else. It's why we don't have routine civil unrest, civil wars, revolutions, etc. We have the rule of law. When I hear people openly mocking and attacking the rule of law, as Kim Davis and her supporters did, I hear people trying to undo the very fabric of this country. These are people who want to make America no longer be America. That is why Kim Davis bothered me so much.
"You've explained before how there are certain circumstances in which a relative of a child other than the parents, such as the grandparents, can get court-ordered visitation, and that it is a much easier standard when one parent agrees with the visitation and the other doesn't than when both parents disagree with the visitation. You've also explained how, when a child is adopted by a step-parent, the biological parent's rights are terminated, but that parent's relatives' rights are not, so a grandparent could still seek visitation. If my son's son is adopted by his step-father and I seek visitation, does it matter that my son supports that visitation, or would I need either the mother or step-father (or both) to support the visitation in order to get the less strict standard applied?"
I'm sorry to say that while your rights as the child's grandmother are not terminated in a step-parent adoption, your son's rights as the child's father are if the child is adopted by his step-father. This includes your son's right to consent to your effort to seek court-ordered visitation. As a result, if the adoption goes through, you will need either the mother or the step-father (now adopted father) to approve in order to get the "best interests of the child" standard applied - otherwise you will face the much tougher "actual harm to the child" standard regardless of what your son's position is.
Conclusion
As always, keep those questions coming. I love knowing what it is that people need to know the most. If you need legal assistance, please give us a call at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, don't forget to check out our new and improved website at http://www.thebaldwinlawfirm.com.
Introduction
One of the most useful things for me as a writer of this blog is getting questions from readers e-mailed to me asking me to elaborate on something I've had in the blog. It helps me know what people are interested in learning more about, and where some more detail could be helpful to people. Originally I tried to address this in follow up blog posts, but eventually I decided that it would be easier for me to consolidate these questions every now and then into what I've called "Law and the Blog" articles where I directly address some common questions I've received. This is the fourth iteration of that series - the last having been done in March.
"You mentioned in a previous post that if a child is permanently disabled, then after they become an adult, you can still be ordered to pay child support. I'm in that situation, except my ex just moved my son into an assisted living facility. I can't afford to help pay my son's assisted living costs and pay child support to my wife, so I'm stuck not helping my son - what can I do?"
If you're in this situation, you need to file to terminate your support obligation immediately. Post-majority child support for a disabled adult child is only authorized by statute if that child resides with the parent receiving the support. If the child is no longer residing with that parent (because, for example, the child has been moved into assisted living), then your support obligation should be terminated, and you should be able to contribute to your son's care directly.
"My ex has been refusing my court-ordered visitation with my daughter for no good reason - should I file a Motion to Modify Custody or for a Rule to Show Cause?"
Well, that's up to you - and to be clear, you are perfectly allowed to file both. For a Rule to Show Cause I would ask if the violations are repeating and significant. If they are, then it's probably worth pursuing, as your ex may well violate more court orders, and a contempt finding with a threat of jail time might be just what the doctor ordered for getting her to comply with court orders. As for the custody modification, you need to analyze whether or not changing custody would actually benefit your child. If your ex is going to ignore even a contempt finding, and will just never let you see your daughter, then it may well be that you taking custody is what's best for your daughter. If, however, you can get your ex to comply with the current order, you should consider why you want custody (is it because you actually want it, or just to punish your ex), why you don't currently have custody, and if yanking your daughter out of the home she's used to is really in her best interest.
I will say that when I practiced custody/visitation more regularly, I usually filed a Rule to Show Cause and only a Rule to Show Cause in these cases - but there were certainly more extreme cases in which I did pursue a custody modification.
"Why did the whole Kim Davis thing bother you so much?"
When I was in college, I met an international student from Central Asia and got to talking about why he wanted to come and learn in America. He told me about how in his country, they did not have a free press, but it was free enough that they got fairly unfiltered world news (it was domestic stories that were more suppressed). He remembered watching the fallout of the 2000 election in America, and was sad to see such a great nation fall into such turmoil. After the court ruled against Al Gore, he waited to hear about the ensuing civil unrest and breakdown of order. And waited. And then he learned that, rather than lead a revolution, Gore had simply conceded, Americans, including Gore's hardest core supporters, moved on with their lives, and that was that. To him, the notion that a court could issue an order (a 5-4 decision at that), and the nation would say "ok" and that be the end of it was completely novel to him, and he immediately fell in love with the idea of America.
You want to know what makes America truly exceptional? The rule of law. We are one of the few countries in the world where the rule of law is taken seriously, and reigns supreme over virtually everything else. It's why we don't have routine civil unrest, civil wars, revolutions, etc. We have the rule of law. When I hear people openly mocking and attacking the rule of law, as Kim Davis and her supporters did, I hear people trying to undo the very fabric of this country. These are people who want to make America no longer be America. That is why Kim Davis bothered me so much.
"You've explained before how there are certain circumstances in which a relative of a child other than the parents, such as the grandparents, can get court-ordered visitation, and that it is a much easier standard when one parent agrees with the visitation and the other doesn't than when both parents disagree with the visitation. You've also explained how, when a child is adopted by a step-parent, the biological parent's rights are terminated, but that parent's relatives' rights are not, so a grandparent could still seek visitation. If my son's son is adopted by his step-father and I seek visitation, does it matter that my son supports that visitation, or would I need either the mother or step-father (or both) to support the visitation in order to get the less strict standard applied?"
I'm sorry to say that while your rights as the child's grandmother are not terminated in a step-parent adoption, your son's rights as the child's father are if the child is adopted by his step-father. This includes your son's right to consent to your effort to seek court-ordered visitation. As a result, if the adoption goes through, you will need either the mother or the step-father (now adopted father) to approve in order to get the "best interests of the child" standard applied - otherwise you will face the much tougher "actual harm to the child" standard regardless of what your son's position is.
Conclusion
As always, keep those questions coming. I love knowing what it is that people need to know the most. If you need legal assistance, please give us a call at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, don't forget to check out our new and improved website at http://www.thebaldwinlawfirm.com.
Friday, October 23, 2015
Virginia Attorneys' Fees Law - When Do You Not Have to Pay?
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!
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!
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.
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