Relevant Changes in Virginia Law - 2016 Edition

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

I believe I have mentioned before that one of my favorite parts of being a lawyer is that it keeps me on my toes because the law is constantly changing.  Everything I've written in the past could well prove false in the future with a stroke of the Governor's pen or a new appellate opinion.  While caselaw is its own monster, late April and early May is an interesting time to be a lawyer in Virginia - at this point, we know all of the new laws that will take effect this year, but they won't take effect until July 1st (except for emergency laws), so we have some time to get ready.

As I did in 2014 and 2015, I have reviewed the new laws being implemented this year that I consider relevant to this blog, and will summarize them below.  As noted, all laws listed here do not go into effect until July 1st.

Strengthening Protective Orders

One of the major legislative compromises of this session was a deal reached between Governor McAuliffe and the Republicans in the legislature regarding guns.  McAuliffe agreed to allow a finding of Attorney General Herring which ended Virginia's reciprocity with most states for concealed carry permits to be reversed in exchange for the criminalization of possessing a firearm when a family abuse protective order is entered against you.  Under HB 1391 and SB 49, it is now going to be a felony to possess a firearm if a family abuse permanent protective order has been entered against you (previously it was just a misdemeanor to buy or transport a firearm while under a permanent protective order).

Additionally, HB 610 now makes it a felony to stalk someone who holds a protective order against you, or to assault and batter such a person if the assault and battery caused any bodily injury.  Previously it was only a felony of the assault caused "serious bodily injury."

Finally, HB 1087 and SB 323 makes it a felony if you violate a protective order while possessing a firearm (it is typically only a misdemeanor to violate a protective order and there was previously no enhancement for using a firearm while violating one).  While this would seem unnecessarily cumulative with HB 1391 and SB 49, it's actually not, because HB 1087 and SB 323 apply to all protective orders, including preliminary protective orders, emergency protective orders, and non-family abuse protective orders, while HB 1391 and SB 49 apply only to final/permanent family abuse protective orders.

Child and Spousal Support for Support Prisoners

One of the oddities of support law is that the harshest tool the court has available for someone who refuses to pay support is sending them to jail - but sending them to jail will typically prevent them from making any support payments at all.  HB 428 orders any city or county with a prisoner who is in a prison work program to pay between $20 and $40 per week to the Department of Social Services for them to provide as support to the spouse and/or children of the prisoners.  Obviously that's not a whole lot of support, but when you're usually getting nothing, something is still an improvement.

Legal Age for Marriage Changed

In Virginia, the law has been for some time that the legal age for marriage is 18 without parental consent, 16 with parental consent, and, in some circumstances involving pregnancy, can be as young as 14.  However, with the modern awareness that some parents don't always act in their child's best interests, and with an increasing amount of concern about coerced or forced marriage, there has been a growing consensus towards getting rid of "parental consent" marriages that could really be "parental coercion" marriages.  HB 703 now sets a uniform age of marriage in Virginia at 18, and parental consent is no longer involved.  A minor under the age of 18 may petition a court for emancipation in order to get married, in which case a judge must make a series of findings, including that there is no parental coercion (or any other kind of coercion) involved and that the minor is mature enough to make this major decision.

Spousal Support when Divorce Denied

Just a couple months ago, I mentioned that one of the major divorce uh-ohs is not requesting spousal support in your pleadings, and I noted that you should include such a request in all of your initial pleadings, in case one gets struck.  This was based on a case from 2014 where a woman had her complaint for divorce struck when she failed to prove her grounds of divorce, and then the divorce was granted based on her husband's counter-claim, where he did prove his ground.  The woman requested spousal support in her complaint, but not in her answer to the husband's counter-claim, and the husband did not say anything about spousal support in any of his pleadings.  The Court of Appeals held that since the woman failed to prove her grounds of divorce and her complaint was struck, her entire complaint was gone, including the request for spousal support, and she was stuck with nothing.

The General Assembly decided this was unfair and has now enacted SB 71.  SB 71 provides that if a party fails to prove their ground of divorce and their complaint or counter-complaint for divorce gets struck as a result, their request for spousal support still survives.  It's still a best practice to request spousal support in all of your initial pleadings, but if you make the mistake the poor woman in 2014 did, you now have an avenue for relief.

More Spousal Support Changes

Another recent case of some controversy is one from 2013 where a husband was ordered to pay pendente lite spousal support and he did so by using funds that were unquestionably marital funds.  As a result, when it came time for the trial in the case, he had greatly depleted the marital funds available for division, while just tucking away his post-separation earnings to build up a large stockpile of separate money.  The Court of Appeals held that this was acceptable under Virginia Law, and he was in no way obligated to pay the pendente lite support using separate money without a court order saying so.  SB 70 now reverses that equation - a party ordered to pay pendente lite spousal support (or child support) must do so using post-separation earnings unless the court orders otherwise.

Additionally, the factors that are used to determine spousal support have long had an oddity - the law required that the court consider what led to the breakup of the marriage when deciding whether or not to award spousal support at all, but once the decision has been made to award support, then the cause of the breakup of the marriage is not one of the factors the court is to consider when setting the amount and duration of the support award.  Now, practically speaking, these things still got into the factors because they were often treated as either "negative non-monetary contributions to the well-being of the family" or "such other factors" as the court sees proper to consider - two things that are properly part of the statutory factors.  However, HB 668 has now expressly made whatever leads to the breakup of the marriage a factor for the court to consider when setting the amount and duration of spousal support.

Landlords Can't Kick Tenants Out in a Tenant's Assertion

The first time I ever took a tenant's assertion to trial, the landlord's attorney caught me off-guard by trying to turn one of the tenant's tools into a double-edged sword.  My client was seeking relief in the form of a rent abatement, future escrow payments, and other such remedies, but one of the remedies available in a tenant's assertion is the power of the judge to terminate the lease and order possession returned to the landlord.  This is a tool often used by tenants who both want a rent abatement and to just get out of the property because the relationship with the landlord has broken down so badly - but in this case, my client didn't want to leave for many reasons.  The landlord, however, knowing there was still almost a year left on my client's lease, thought my client was too much of a trouble maker (she was suing him, after all) and wanted her out.  In my case, the judge felt this demand was ridiculous - my client was entitled to the services she'd bargained and contracted for - but I later learned that not all judges felt this way, and this was a common tactic of landlords to get rid of troublesome tenants.

HB 1209 and SB 377 finally take this power away from landlords.  The law is now being changed such that the lease termination remedy of a tenant's assertion can only be invoked by the court if it was requested by the tenant and possession can only be ordered returned to a landlord in accordance with an unlawful detainer action.  This is one more step in the very long process to try to equalize the power between landlords and tenants in Virginia courts - although some would say there's still a long way to go.

Conclusion

To me, there's little more exciting than the routine changes in the law I practice.  But it is also my job, not yours, to keep track of these laws.  If you think that your legal situation may have changed because of a change in law, you should consider talking to an attorney.  If your situation is in a field I practice, review my initial consult policy, then call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your consultation.  Our initial consultations are free for up to half an hour!

A Primer on Virginia Law Regarding Adultery and Spousal Support

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

I had a divorce case once where the trial judge, prior to issuing his ruling, noted that in his experience, almost every divorce was fundamentally about either sex or money (or both).  My experience has been a little more nuanced - and I've seen a large number of cases that were not about sex or money but really about control and abuse - but the judge's observation was not a complete misrepresentation.  Of course, when a divorce is primarily about sex, it's usually "sex with someone who's not your spouse."

I've generally stayed away from adultery on this blog because, frankly, it doesn't play the important role in the law regarding divorce that it did 40 or 50 years ago.  The one post I did do about two years ago was not really about the law regarding adultery and divorce, but rather about how you prove adultery has occurred.  I did, however, in that post make a brief reference to several ways adultery can impact a divorce case, including noting that "the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this)."  A new Court of Appeals opinion this week, however, has led me to believe it's time to expand on that brief note.

In today's blog post, I will offer a brief primer on the interplay of adultery and spousal support in Virginia law.

What the Law Says

So, for an issue like this, it's worth looking at what the law actually says.  The relevant law can be found at Virginia Code Section 20-107.1(B).  It reads:

"Any maintenance and support shall be subject to the provisions of sec. 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A(1) of sec. 20-91.  However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties."

So, that's a mouthful!  First of all, ignore the first part of the first sentence - if you follow the links you'll see that's just referring to a provision of law that says how spousal support can be modified.  Additionally, if you follow the link to section 20-91(A)(1), that's just the section of law that states that adultery is a ground of divorce.  Finally, note that this provision requires only that an adultery ground of divorce "exists in such spouse's favor" - it does not require that adultery actually be the basis on which the divorce is awarded - or even that the non-cheating spouse seek a divorce based on adultery.

So, the "plain English" (or as close to it as I can get) is this - "No permanent spousal support can be awarded to a spouse who has committed adultery, unless it can be proven by clear and convincing evidence that failing to award support would be a manifest injustice, considering the relative degrees of fault during the marriage and the relative economic circumstances of the parties."

So, let me break down each part of this a bit further.

"No permanent spousal support..."

So, what does "no permanent spousal support" mean?  If you weren't aware of the nuances of the law, you might think that this applies to awards of spousal support "for life" and not to awards of spousal support for a "defined duration" (as in, saying from the outset support will be for five years - for more on defined duration vs. indefinite spousal support, see my general blog post on spousal support).  You would be incorrect, however.

A "permanent" spousal support award only means that this is the permanent, final award of the court, as opposed to a "temporary" spousal support award issued at a pendente lite hearing held while the case was pending.  If the law were referring to spousal support without a set end date, it would use the legal terms of art of spousal support of an "indefinite" or "undefined" duration.  As a result, this provision of law applies to all final spousal support awards, regardless of duration, and the Court of Appeals has held that this even applies to simple reservations of spousal support (a provision of law that allows the court to decline to award spousal support at this time, but reserve for a party the right to request it again later).

Now, you'll also notice something critical - if this provision applies to final (permanent) spousal support orders, you might think it does not apply to the temporary pendente lite orders.  This is correct - courts very often award pendente lite spousal support, even when there are accusations of adultery.  If those accusations are later proven, the trial court can order the adulterous support payee to pay back some or all of the support received pendente lite, but the Court of Appeals has held that the trial court is not required to order that any of it be paid back.

"... clear and convincing evidence..."

In order to qualify for the exception to the rule barring spousal support for an adulterous spouse, you must prove that you are eligible for that exception by "clear and convincing evidence."  Clear and convincing evidence is probably the vaguest standard of proof we have in law.  It is more than a "preponderance of the evidence" (which requires only that a circumstance be shown to be more likely to have occurred than not to have occurred), and less than "beyond a reasonable doubt" (where the proof is so strong that the only doubts of the circumstance having occurred would be ridiculous).  The best explanation I've ever heard given for it is that something meets this standard "when, rather than just thinking 'yeah, it probably happened,' you find yourself thinking 'yes, I am convinced that it did happen' even if you have a few lingering doubts."

The "official" Virginia definition of clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established."

And that's about as good a job I can do for it.  "Clear and convincing evidence" is almost always defined primarily simply as "more than a preponderance, less than beyond a reasonable doubt."  I've heard others say it requires being "about 75% certain" (as opposed to 50.1% for preponderance or 95% for beyond a reasonable doubt).  That does seem about right.

I do feel compelled to point out the interesting dichotomy here, though - while you are required to prove your eligibility for the exception by clear and convincing evidence, the party alleging adultery also must prove that adultery occurred by clear and convincing evidence.

"... manifest injustice..."

While it may not sound like it, "manifest injustice" is actually also a legal term of art.  In Virginia, the term "manifest injustice" is considered synonymous with "miscarriage of justice."  In other words, it must be something so outrageous that, if allowed to stand, would shake people's faith in the justice system itself or strike the average person as severely unfair.  An example of something considered a "manifest injustice" in other areas of law in Virginia would be when a plaintiff files a lawsuit within the applicable statute of limitations period, but while his lawsuit is pending the law is changed to shorten the statute of limitations period such that now the time within which he filed would have been outside the limitations period.  This has happened several time in Virginia, and each time the courts have routinely used a provision of Virginia law that allows them to refuse to apply new laws to already pending cases when doing so would result in a "miscarriage of justice."

"... relative degrees of fault..."

This is exactly what it sounds like - if the adultery was the primary reason the marriage fell apart, then the "relative degrees of fault" tilts heavily against the adulterous spouse.  If, however, there was much more going on, then this balance can change.  For example, in one case, the Court of Appeals upheld a manifest injustice finding where it was determined that the non-cheating spouse had nonetheless spent 20 years harassing, belittling, and abusing (both physically and emotionally) the cheating spouse.  Other situations have come up where both spouses were engaged in adultery - especially if the one seeking spousal support was not the first one to do it.

"... relative economic circumstances..."

This is the other part of the manifest injustice inquiry - the parties' relative economic circumstances.  The Court of Appeals has recognized that one of the main purposes of the exception in the law is to ensure that an instance of adultery does not leave a spouse destitute.  Economic circumstances are more than mere income differences, however - assets must also be considered.  In the Court of Appeals decision rendered this week (the case is called Mundy v. Mundy), the Court reversed a trial court finding of manifest injustice.  The trial court's finding was based on the fact that the husband earned more than $850,000 per year, while the wife (the one who had repeatedly committed adultery) earned nothing and only had an earning capacity of about $30,000 per year.  The Court of Appeals noted that while that income differential was clearly out of balance, the wife was receiving as part of the property settlement in the case, assets and money worth more than $1.8 million.  The Court of Appeals noted that it could hardly be said to be a manifest injustice not to award spousal support to a "millionaire adulteress."

The most important word in the whole passage:  "... and..."

The Court of Appeals has, time and time again, noted how critical it is for parties and trial judges to remember that the Code uses the word "and."  As in, manifest injustice is shown considering both the relative degrees of fault of the parties and their relative economic circumstances.  As in the two must be considered together.

This can be both a benefit and a detriment to the adulterous spouse seeking support.  This can be a benefit because if both of those factors tilt in that spouse's favor, but neither on their own would be a "manifest injustice," the two combined might be.  It could go against that spouse, however, because perhaps one of those factors on its own would constitute a manifest injustice, but then the other is tilted so strongly the other way that the two combined don't meet the standard.

An example of the first might be an assettless spouse who earns about a third of what his or her spouse does but this spouse had only committed adultery once and the potential payor had committed adultery first and multiple times.  Neither would likely be considered a "manifest injustice" on their own, but the two combined very well might.

An example of the second issue, however, could be an assetless spouse with no income and no real earning potential seeking spousal support from a millionaire spouse, but where the millionaire spouse was pretty much a model spouse, while the one seeking the support had engaged in multiple adulterous affairs for years while also physically abusing the non-cheating spouse.  The economic differences on their own would likely be considered a "manifest injustice," but work in the misdeeds of the cheating spouse, and it probably won't be.

Affirmative Defenses

Now, if your spouse has committed adultery and wants spousal support, but you don't think your spouse will qualify for the statutory exception, you're not necessarily out of the woods yet.  Adultery has several affirmative defenses (for more about affirmative defenses, see my post on the subject), and if any of those apply, then the bar to spousal support will not apply.  The two most important (primarily because they are the most common) are the defenses of "connivance" and "condonation."  Connivance is a defense that states that the adultery essentially occurred as a result of your own intentional doing.  This is not "you stopped having sex with your spouse so that made it ok for your spouse to have sex with other people" rather this is "you intentionally sought to have them have sex with other people."  Common situations where this occurs are so-called "open marriages" where the spouses agree in advance that they can have sex with other people, sex with your spouse involving one or more additional people at the same time, or (sadly, yes, this occurs) situations where your spouse tricks you into having sex with someone else (though it's also worth noting that "adultery" itself requires that the sex be consensual, so a non-consensual encounter like this or any other form of rape cannot be used as the basis for an adultery finding).

"Condonation" could also be called "forgiveness."  This is where you learn of your spouse's adultery after the fact and either a) approve of it, or b) forgive it.  Condonation can be both express or implied - if you expressly forgive your spouse, condonation obviously applies, but even if you just imply that you have forgiven your spouse (even if was not your intention to do so) it still applies.  The most often time that I see "implied condonation" is when a spouse learns of his or her spouse's adultery, but then still lives with and has sex with his or her spouse afterwards.

If connivance or condonation is proven, then spousal support can still be awarded to an adulterous spouse.  Note, however, the connivance or condonation can only apply to sex that is reasonably contemplated by the connivance or condonation.  For example, if there's an act of express or implied condonation, the non-cheating spouse cannot then use against the cheating spouse the adultery the non-cheating spouse knew of at the time, but the non-cheating spouse can still rely on adulterous acts the non-cheating spouse was not aware of at the time, or which occurred after the express or implied condonation.

What about adultery by the payor?

You might notice that this post talks almost exclusively about adultery committed by the party seeking spousal support.  You might be thinking "what about the party potentially paying spousal support?"  Well, in those cases, it's a bit more complicated.  There's no statutory bar involved (except that they also would not be able to receive spousal support), but it is still relevant.  In addition to being a consideration in the manifest injustice analysis, it would also be considered a "negative nonmonetary contribution to the well-being of the family" when the court considers the statutory factors in figuring out how much support to award and for how long.  Nonetheless, adultery definitely does not have nearly as dramatic an effect on the potential payor of spousal support as it does on the potential payee.

Conclusion

Adultery is a complicated area of family law, but when it comes to spousal support, it has some critical implications.  If you are involved in a spousal support case which includes allegations of adultery, you would best be served by speaking with an attorney.  I, and other attorneys at my firm, routinely handle these matters, and you can contact us at (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!

Classic Law is Your Friend: Virginia Child Custody and Relocation Law

I have been out of work for the last couple of weeks due to paternity leave, and will still be another couple of weeks before I return.  This has also rendered me unable to devote the time needed to a good blog post.  Rather than keep leaving this blog blank, however, I decided to go ahead and re-post a "classic" post - this one being my primer on the law surrounding relocating when you have primary physical custody of a child.

This post was original posted on July 18, 2013, and titled "You Can't Take the Kids and Run - Relocation and Child Custody" and is reproduced in full below with a couple minor edits to take into account any updates in the law (and personal changes in my writing style) over the past three years.



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

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, you will move during your adult life.  In fact, you may move frequently.  For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done.  For people with children with court ordered custody and visitation arrangements, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state.  This is, in fact, considered a “fundamental” constitutional right.  In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.”  So, if you have custody of your child, the other parent absolutely cannot prevent you from moving.  But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

 
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.
 

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation.  If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation.  When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation.  That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation). 

Of course, the question is “burden to prove what?”  The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights.  Instead, we have a mishmash of rules.  The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation.  However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless. Note, however, that in order to meet this test, the custodial parent must prove that the child derives a benefit independent of any benefit to the custodial parent from the move (so, the fact that in the new location the custodial parent would earn more money and thus be able to provide more for the child is actually not a sufficient reason to grant a relocation).   Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent. However, as you can probably imagine, proving that it is actually impossible to stay where you are or move somewhere closer to the other parent is extremely difficult.

 
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule that I have told clients (and as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will be able to keep the exact same visitation schedule (or, alternatively, the exact same amount of time with the child with only minor tweaks to the visitation schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. This is why in my experience, the vast majority of contested relocations of less than, say, 30 miles are approved, while the majority of such relocations of more than about 200 miles are rejected. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.

My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working
 

If your relocation was approved but it becomes clear that the visitation arrangements you made to ensure the non-custodial parent got the same amount of time with the child isn’t working, then you can file a motion to modify visitation.  This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

 
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all.  Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!

More Virginia Divorce Uh-Ohs: 3 More Big Legal Mistakes You Can Make in a Divorce

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

Introduction

About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces.  I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is.  It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often.  Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.

1.  Failing to request spousal support in your pleadings

If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality?  The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.

It is a basic rule in law that in court, you cannot get what you do not ask for.  Moreover, the way that you ask for something is in a written document called a "pleading."  "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint."  When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial.  As a result, in order to get something at trial, you must have asked for it in your initiating pleading.

In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support.  As a result, spousal support must be specifically requested.  If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is.  As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).

Fortunately, if you fail to do this, you will likely be able to correct it.  Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings.  Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away).  I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue).  Nonetheless, if you discover you have this issue, you should move to fix it ASAP.

2.  Failing to request a determination of spousal support when there is a J&DR Order

This issue is related to the first, but on the flip side.  The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court.  Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.

Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite.  It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce).  Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce.  For more about J&DR spousal support, see my blog post on spousal support.

Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order.  In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order.  If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.

Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order.  Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown.  So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time.  Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.

3.  Failing to include provisions in a written order

For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders.  Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it.  This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.

This also sometimes creates problems for parties that are caught unaware.  Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders."  In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down.  I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it.  The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.

Now, there is a way to fix this.  If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision.  Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision.  Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling.  Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.

Conclusion

Not all mistakes are immediately fatal in a divorce.  Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time.  Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce.  If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Virginia and US Supreme Court Vacancy Crises - The Basics

As always, before reading my post, please review my disclaimer by clicking the link above or by clicking on this link.

Introduction

The other day I had someone ask me what I thought about the "vacancy crisis" on the Supreme Court.  My response was "which one?"  See, while you probably already know about the US Supreme Court having a bit of a vacancy crisis arising from the death of Justice Scalia and no one really knowing when or if that vacancy will be filled, in Virginia our own Supreme Court has been dealing with a vacancy crisis of its own since last summer.  Neither seem likely to end soon, and both have gotten me a good number of questions.  So, with this post, I'll give a basic breakdown of what the issues are in each vacancy and where I see them likely to be headed.

Background on the Virginia Supreme Court Vacancy

Last summer, Virginia Supreme Court Justice Leroy Millette announced his retirement.  Now, in Virginia, judges are elected by the General Assembly without any input from the Governor.  However, when the General Assembly is not in session, the Governor can appoint someone who will sit on the bench until 30 days after the next session of the General Assembly begins.

Last summer, the Republican-controlled General Assembly was not in session, so the Democratic Governor (Terry McAuliffe) decided he would make a recess appointment, as had been done 31 times previously for the Virginia Supreme Court over the past 100 years.  All 31 previous times, even when the Governor and General Assembly have been of different parties, the Governor's choice has then been elected to a full term on the Court, so Governor McAuliffe took this appointment very seriously.  He reached out to the bar associations and members of the General Assembly Courts of Justice Committees for recommendations.  Finally, he settled on Fairfax County Circuit Court Judge Jane Marum Roush - a judge recommended to him by Dave Albo, the Republican Chair of the House Courts of Justice Committee, and unanimously supported by the major state bar associations due to fairly impeccable credentials.  With Del. Albo standing next to them, Governor McAuliffe announced his pick of Judge Roush shortly thereafter, and she ascended to the Supreme Court (this was also personally exciting for me, as I have appeared in front of Justice Roush more times than any other judge in my legal career to date).

Well, the Republican leadership in the General Assembly pitched a fit.  They were mad that Governor McAuliffe spoke to the Courts of Justice Committees, instead of the actual Republican leadership (Speaker of the House and Senate Majority Leader) something that some previous governors had done, but others had not.  The Republican leadership openly admitted that Justice Roush was well qualified for the position, but due to this alleged "breach in protocol," they announced that, for the first time in more than 100 years, they would kick the Governor's choice off the bench and put forward their own nominee.

In August, the General Assembly reconvened for a special session, but in the Senate, where Republicans have only a 21-19 majority (and the Lieutenant Governor, who casts the tie-breaking vote, is a Democrat), all did not go according to plan.  Retiring Republican Senator John Watkins called the Republican Party out on its shenanigans, and refused to support their efforts to advance their own nominee.  As a result, no new justice was named.  The Senate then, along the same 20-20 vote with the tie broken by the Lieutenant Governor, voted to adjourn their session, without the consent of the House of Delegates.  This move was of questionable constitutionality, since the Virginia Constitution forbids one house of the General Assembly from adjourning without the consent of the other, but the syntax of the constitutional provision makes it very unclear if that requirement applies to special sessions or only regular sessions.  As a result, the Senate determined on its own that its actions were constitutional, the (Democratic) Attorney General agreed, and there was not much the House of Delegates could do.  As a result of this adjournment, once the 30 days had elapsed ending Justice Roush's term, Governor McAuliffe re-appointed her.

Fast forward to the current session, Republicans still hold a 21-19 majority in the Senate, and they have dug in their heels.  The Speaker of the House of Delegates declared that Republicans can never support Roush now because she a) lobbied legislators to keep her job, and b) accepted the re-appointment that Republicans claim was unconstitutional.  With Senator Watkins out of the Senate, most observers considered Justice Roush doomed, but then freshman Republican Senator Glen Sturtevant, the very Senator who was elected to Senator Watkins' former seat, announced that he himself would not support the Republican effort to remove Roush.  Then, a Democratic Senator, Louise Lucas, announced she would support that effort, only to change her mind a few hours later after meeting with Governor McAuliffe.

So, where are we now?  The thirty days on the current session has expired, Justice Roush is now off the Supreme Court bench, but the election of a new justice any time soon seems unlikely.  There are about thirty days left in the General Assembly session when it will end automatically, and require a two thirds majority of each house to extend (not likely).  Governor McAuliffe has already announced that if there remains a vacancy at that time, he will appoint Justice Roush yet again.

Background on the US Supreme Court Vacancy

This vacancy has much less back story required than the Virginia vacancy.  On February 13th, Justice Antonin Scalia passed away in his sleep.  Scalia was seen as the mouthpiece of the conservative wing of the Supreme Court.  However, the Constitution authorizes the President to appoint Supreme Court Justices, who must then be approved by a majority of the US Senate (interestingly enough, the President can also appoint someone who automatically takes the bench until the next session of Congress, so in this case until 2017, if the Senate is in recess, as it is this week, but President Obama has opted to not use that power, which has not been used to put a Justice on the US Supreme Court since the 1950's).

With Barack Obama sitting as President, most expect he would nominate a liberal justice to replace the conservative Scalia.  As a result, many senators in the Republican-controlled Senate have already said they will refuse to even allow a vote on a President Obama nominee, insisting that the next president should pick.  This would create a vacancy that could last an unprecedented 340+ days.  As of now, Obama has not yet announced a nominee, but has declared he will put one forward.

Implications of the Vacancies

While both courts have a vacancy at the moment, this means each court has an even number of justices (6 in Virginia out of the usual 7, and 8 in the US Supreme Court out of the usual 9), however, the impact is much more profound in the US Supreme Court than in Virginia.  This is for a couple of reasons.

First of all, Virginia has the concept of "senior justices."  These are justices who have reached a certain age and number of years of service on the court, and have retired from "active duty" on the court.  There are currently four senior justices.  In any given case, where there are less than seven justices available (traditionally due to a justice being sick, unavailable, or recused from a case, but the presence of a vacancy can also be a reason), a senior justice can be called on to sit on the case, and cast a vote and write opinions just as if he or she was still an active justice.  As a result, it is unlikely that the Virginia Supreme Court will face any split decisions as a result of this vacancy.  Moreover, from a political standpoint, the Virginia Supreme Court has had a conservative/Republican majority of either 4 or 5 for some time - Justice Millette was seen as a moderately liberal/Democratic justice, as has been Justice Roush.  As a result, the vacancy is unlikely to change the balance of power on the Virginia Supreme Court.  Additionally, the Virginia Supreme Court has much fewer "political" cases than the US Supreme Court, so divided cases, or at least ideologically divided cases, in the Virginia Supreme Court are actually fairly rare.

The US Supreme Court, however, is quite different.  The US Supreme Court has had since the late 1980's and early 1990's a 5-4 conservative/Republican majority (although Justice Kennedy, a part of that majority, at times votes with the court's liberal wing).  Justice Scalia's death not only leaves the court with 8 justices, but it leaves the court with 4 liberal justices and 4 conservative justices.  While the US Court system does have the concept of "senior justices" and there are presently three of them (former Justices O'Connor, Souter and Stevens), senior justices can only sit on Circuit Court of Appeals panels, not on the Supreme Court.  As a result, it is very probable that as long as the vacancy remains, we could have a slew of 4-4 decisions.  In the case of a tied decision in the Supreme Court, the lower court decision stands, but is not binding precedent on the rest of the country.  As a result, major hot-button constitutional issues likely cannot be decided until the vacancy is filled.

How I see things playing out

Setting aside what I'd like to happen or what I think should happen, I honestly don't foresee either of these crises resolving any time soon.  The Republicans clearly have the power to block any Obama nominee, and the Republicans in the Virginia General Assembly have basically backed themselves into a corner on Justice Roush.

My prediction in Virginia is that the disagreement will not resolve this session and the session will end with a vacancy, at which time Governor McAuliffe will re-appoint Justice Roush.  At some point, I believe cooler heads will prevail and Justice Roush will be elected to a full term on the court, although one possible way out for everyone would be for President Obama to nominate Justice Roush to a seat on the federal 4th Circuit, which several people have suggested.  Regardless, I expect that by this time next year, this crisis will have been resolved, likely with Justice Roush serving a full term on the Virginia Supreme Court, but I do not anticipate that to happen this session.

My prediction in the US Supreme Court is that President Obama will nominate DC Circuit Court Judge Sri Srinivasan.  Judge Srinivasan is probably the most qualified "democratic" jurist in the country, and in a normal year would be a largely non-controversial pick.  Given that 2016 is an election year, however, and that Judge Srinivasan has the potential to tip the balance of the Supreme Court, I expect the Republicans in the Senate to still refuse to give him a vote.  This will become an issue in the election.  Regardless, I have trouble seeing anyone picked by Barack Obama being confirmed to this seat, and I expect that a year from now, the US Supreme Court will still have a vacancy, and the new president's pick will be going through the confirmation process.

Virginia Divorce Uh-Ohs: 5 Big Legal Mistakes You Can Make in a Divorce

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.

Update:  Some of the information contained in this blog post is outdated due to changes in the law.  Please review the 2018 and 2020 Relevant Changes in the Law post for details.

Introduction

I can say over and over again that family law in general, and divorce law in particular, is too complicated for most people to go it alone.  That you really should have an attorney to represent you in the divorce process.  That the cost of an attorney is generally worth it, even in "simple" cases.  Yet, time and again, we have clients walk in our doors who represented themselves for some or all of their divorces, and now want us to clean up the messes they made.

With that in mind, knowing that at least some of you still won't hire an attorney and will try to do it yourself, in today's blog post I will discuss five of the biggest legal mistakes people make in their divorce cases that I've seen, many of which cannot be fixed or undone after they've happened.  Please read and take heed.

1.  Agreeing to pay indefinite spousal support without a modification mechanism.

This is by far the most common mistake I see that people have made for which there is absolutely nothing I can do to fix it.  I deal with many people who understand that, when things change, child support can be modified, even when the child support is fixed by a signed agreement.  What many people don't realize, however, is that the same is not true of spousal support.

The Virginia Code contains a provision stating that when two parties to a divorce sign a spousal support agreement, the court is prohibited from ordering anything contrary to that agreement.  As a result, any spousal support agreement you sign is permanently binding on the court.  This means that, unless your agreement itself spells out how and when spousal support can be modified, the spousal support can never be modified without the other side agreeing to that modification.

This is important to remember, because an amount that sounds reasonable for you to pay now may not be so reasonable when you're sick, disabled, retired, laid off, or your spouse suddenly hits the $20 million lotto jackpot - but if you signed a spousal support agreement without a built in modification mechanism, then none of that matters, you're still stuck paying, and if you can't, then you could end up found in contempt of court and find yourself in jail.

This is why I've often told clients that if they are going to pay support indefinitely, they're better off getting that ordered by a court than they are agreeing to it - since court ordered spousal support can be modified.  So please, whatever you do, do not sign an agreement that commits you to pay a certain amount of spousal support without a guaranteed end date or a modification mechanism.

2.  Agreeing to pay child support for your adult child without a modification mechanism.

Your love and care for your child doesn't end when that child turns 18, so for many parents, there is a gut instinct that says their support shouldn't end then either.  So, while Virginia law terminates child support at age 18 (or, if the child is still living at home after turning 18 and is a full time high school student, then the earlier of turning 19 or graduating from high school), many parents agree to support their child past age 18 - with frequent termination dates I see being age 21, 22, or graduation from college.

While this is an admirable choice for non-custodial parents to make, the courts no longer view this support as "child support."  Once the child is no longer an age where the court can order support, all the protective mechanisms that kick in for court ordered child support goes away, including the court's power to modify support.  As a result, once the child reaches the age where the court can no longer order support, the agreement governs the support.  This means that if the child support was ever modified, it automatically reverts back to what it was set at in the agreement, and becomes unmodifiable, much like agreed spousal support.

And, like agreed spousal support, the way around this rule is to build in a modification mechanism into the agreement.  The most common one I use is "Upon the child reaching the age of majority, child support shall remain the same as it was for the last payment due prior to the child's majority, and shall be modifiable in the same manner as if the child were still a minor."  Include that in the agreement, and you're golden, but otherwise you can end up with some very wacky results.

3.  Not taking action to protect marital assets.

I'm always surprised to discover how much people think they know about divorce law vs. how much they actually know.  Rarely is this gap greater than it is in the field of post-separation use of marital funds.  I've had multiple clients walk in the door saying they discovered their spouse had spent x huge sum of dollars of jointly owned funds since separating, and asking me to get it back.  Here's the thing - the Court of Appeals says not so fast.

Under Virginia Law there are two types of post-separation uses of marital funds - proper purposes and waste.  When funds are used for proper purposes, the money is gone.  When they are wasted, then the person who wasted those funds must reimburse the "marital estate."  Note, however, there's no middle ground.  There's no "unfair" or "uneven" or "just used for one party's benefit."  If money is used for a proper purpose, even if it solely benefits one party, it's gone, and you cannot get it back.

So, what constitutes a "proper purpose"?  This is literally everything except what one would reasonably call waste (solely unnecessary expenses).  According to the Court of Appeals, "proper purposes" include things like rent, the mortgage, groceries, other living expenses, a child's school tuition (even private school and college tuition), and even paying your own attorneys' fees.  The appellate opinions on this are so strong that many attorneys, myself included, will often advise clients with no income or funds of their own to take some of the marital funds before they separate to live off of until a support arrangement can be set up.

There are actions you can take, however, to prevent this from happening.  You can get into court pretty quickly to get a judge to freeze marital accounts.  Now, if your spouse earns a lot less than you, you might get ordered to pay some support in the meantime, so you have to calculate if that is a risk you are willing to take - but you do need to understand that if you don't take steps to protect your marital assets, they could be taken, and there could be nothing you can do about it once they are gone.

4.  Failed to object to an appealable order.

As an attorney who does handle family law appeals, every now and then someone walks in my door to appeal an order they had lost on in the trial court while representing themselves.  To date, every single person in this situation who has walked in my door has shown me a final order in which they did not list any objections, and then their time to file a motion to reconsider has passed.

To appeal a case, you must show the Court of Appeals that you objected to the order at the time it was entered in a manner sufficient to allow the trial court to fix its own error before you appeal.  This can be done in two ways - either by listing your objection on the order itself, or by filing and getting a ruling on a motion to reconsider.  If you fail to object on the order itself, anything you cover in a motion to reconsider which has been denied will generally be accepted by the appellate courts, but remember that once 21 days from entry of the final order have passed, the court loses its jurisdiction to rule on the motion to reconsider, so unless a suspending order is entered, if that time runs out without a ruling on the motion, you're out of luck.  As a result, by far the safest bet is objecting on the order itself.

Objecting on the order is fairly easy.  With rare exception, you are given the option to "endorse" every order - this is where you sign at the end of the order indicating that you've read it.  Above your name, there will likely appear the word "Seen."  The simplest way to object is to write in there "Seen and objected to because [list of what you object to and why.]"  While saying "Seen and objected to" on its own is not sufficient, it is sufficient, if you have nothing else to add, to say "Seen and objected to for the reasons stated in open court."  However, no matter how good your case is for appeal, if you have no objection and no motion to reconsider ruling, you likely have no appeal.

5.  Ignoring discovery.

Once when I was about four months in to my current job, I had a potential client walk in the door to ask for representation at his divorce trial a month later.  He had been representing himself to that point, so I asked to see discovery.  When I dug in, I found he'd never sent discovery requests to the other side (it was now too late), and not only had he failed to respond to their requests, but an order had been entered forbidding him from presenting any evidence at all at trial.  Needless to say, at that point, there was little good my representation is going to do.

Discovery is serious and ignoring it has serious consequences.  Failing to respond to the other side's discovery requests and get you hit hard with court sanctions.  Failing to make discovery requests of your own can leave you with absolutely nothing to go on in court.  In short, ignoring discovery is practically just giving away your whole case.

There's not much I can add to this one but this occurs far more often than you think.

Conclusion

If you're getting divorced, get a lawyer.  There are far too many legal pitfalls and problems for most people to handle on their own.  If you don't, however, please at the very least remember these big mistakes I see all the time.  Obviously these aren't the only mistakes I see, but these are perhaps the ones that are the combination of most common and most damaging.  If you'd like to consider hiring an attorney to help you avoid these mistakes (or try to fix the ones you've already made), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (although I would advise you to review my initial consultation policy first).  Our initial consultations are free for up to half an hour!

 

Annulments in Virginia - A Brief Primer

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

As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world.  Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with.  As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).

In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments.  In today's post, I will do a very brief primer on what Virginia law is regarding annulments.

Advantages of Annulment vs. Divorce

Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get?  Well, annulments do offer several advantages.  Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order.  Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place.  Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.

Void vs. Voidable Marriages

Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages.  In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into.  In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry.  Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry.  A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem.  A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.

So, what kinds of invalid marriages are void and what kinds are voidable?  The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:

• Bigamous marriages;
• Incestuous marriages;
• Marriages where either party is under 18 without consent of their parents;
• Marriages where either party is under 16 (with an exception for pregnancy).

As you can probably guess, prior to 2014, same sex marriages were also void, and prior to 1967, interracial marriages were also void in Virginia.

Some examples of invalid marriages that are merely voidable are:

• Marriage based on some form of fraud;
• Marriage involving at least one party that lacked capacity to consent;
• Marriage where one party was impotent at time of marriage;
• Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
• Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
• Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
• Marriage where either party had ever been a prostitute without the other's knowledge;
• Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).

Fraud

So, the most common form of annulment we see is a claim of fraud.  Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth.  Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.

If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).

Cohabitation and Two Year Marriage Rule

After all of that, however, we get to a big catch.  For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years.  Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.

This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.

Conclusion

Annulments are an ancient element of family law that is rarely available and even more rarely useful today.  Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while.  If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do).  Our initial consultations are free for up to half an hour!