Thursday, November 20, 2014
Two Week Hiatus
Hi all. With a trial coming up tomorrow and Thanksgiving coming up next week, looks like I'm going to have to step back from the blog for a couple weeks. Look for new content to come on or around December 4th, and have a wonderful Thanksgiving!
Thursday, November 13, 2014
True Virginia Law: Some Common Myths About the Law
As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Wednesday, November 5, 2014
Virginia Uncontested Divorces: When the Fighting is Over
Before you read this blog 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 information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Given the entire industry of family law and the horror stories we hear about cripplingly expensive divorces, you might be surprised to learn that most divorces are short, simple and relatively cheap. Generally speaking, divorce tends to be more likely to go to a contested trial than other areas of litigation, but that's because there are, in many cases, about five areas in which there are potential issues to dispute (grounds of divorce, property division, spousal support, child support, and child custody/visitation) - so while each of those five areas is about as likely to settle as any other type of litigation, settling all five in one case is much more challenging. That being said, divorce cases being "more likely" to go to trial is not the same as saying divorce cases "generally do" go to trial - they do not. Most cases ultimately do settle completely - it's just, in my experience, closer to 60-65% of divorce cases, as opposed to about 85-90% of other types of cases.
So, what happens if, despite the hurt feelings and all the emotions that caused your marriage to end, you find yourself in a situation where you and your soon-to-be ex actually are in agreement on the five issues I listed above? In today's blog post, I hope to cover the basics of obtaining an uncontested divorce in Virginia.
First, Get it in Writing
If you are in agreement on everything, it would be to everyone's benefit to get it in writing. Technically, you can do this on your own - write down your agreement, each of you signs it in front of a notary public, and suddenly you have a binding marital agreement (see this post for more on marital and pre-marital agreements). That being said, there are many ways that you can screw up putting this together, so it's always best to have a lawyer draft your agreement (typically referred to as a "separation agreement").
So, why have a signed agreement? Well, first of all this allows you to get divorced faster if you do not have children (after six months of separation instead of a year). Moreover, this prevents your spouse from backing out of your agreement at the last minute, as separation agreements are very hard to challenge. Finally, it provides clear guidance to attorneys, courts and each spouse going forward as to what is supposed to happen - much clearer guidance than you typically get without a written agreement.
Next, Wait the Requisite Time Period
If you do not have children and you have a signed separation agreement, you can get divorced after six months of separation. If you do have minor children or do not have a separation agreement, you must wait until you have been separated for a year. In either case, you cannot take further action to get divorced until that time has elapsed. During the waiting period, however, you can start getting your ducks in a row so you can complete the remaining steps as quickly as possible.
Identify a Corroborating Witness
To complete your divorce you will need someone to "corroborate" your eligibility for divorce. This should be someone who is not you or your spouse, who knows both you and your spouse, knew when you and your spouse separated, and has visited you in your home at least several times since your separation. Your corroborating witness can be any adult other than you or your spouse, so it does not matter if they are "biased" (such as a parent, sibling, or adult child). It is best to talk to your corroborating witness as soon as possible to make sure they are comfortable serving in that role. Let them know they will not need to come to court and will just be signing an affidavit.
File Your Paperwork in Order
Once the time period for separation has passed, it is time for you to file. It is very important that you file your paperwork in Order however. The paperwork you will need to file in court is as follows (and in this order):
Why Hire an Attorney
So, the above process probably seems simple enough - so why hire an attorney for it? Well, because as simple seeming as it is, it is very easy to screw up if you are not familiar with the process. In fact, I have many clients come to me with cases they filed where their divorce got rejected, and often their case is so messed up by the time it gets to me I have to close their original case and start over from scratch - which is typically more expensive than if they had just come to me in the first place.
So, what's so easy to screw up? Well, it's easy to have a separation agreement that doesn't actually cover everything it has to, or leaves important matters out. It's easy to not include all the statutorily required statements in the Complaint, Acceptance/waiver, affidavits, or Final Decree (the affidavits and Final Decree are the toughest since there are things that are required by law to be in them that many people do not know about). While you can often get samples from your local courthouse, they usually are not perfect, and moreover, they usually do not include sample affidavits, meaning you will have to go to court for what is called an ore tenus hearing, rather than proceed with a simple affidavit.
On top of it all, an attorney for an uncontested divorce is much cheaper than an attorney for contested divorces. Attorneys typically charge flat fees for uncontested divorces - and depending on the complexity of the case, these fees can be as little as $600 (though $1,200 or so is more common, with up to $2,000 or so for more complicated cases that require drafting and negotiation of a separation agreement along with filing of the divorce itself). Compare this to the $15,000 to $75,000 that a typical contested divorce runs (with atypical contested divorces I have heard of running as high as $250,000 to $500,000 in legal fees) and you can see how an uncontested divorce is a much cheaper option.
All in all, for the security that comes from having an attorney handling your uncontested divorce, the cost truly is not that high, and is certainly worth it.
Conclusion
Most divorces in Virginia are uncontested. They require neither protracted litigation, nor even an appearance in court. Hiring an attorney is the simplest way to make sure that your uncontested divorce runs as smoothly as possible. If you are involved in a divorce where all matters are actually resolved (or look to be resolved fairly easily), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Given the entire industry of family law and the horror stories we hear about cripplingly expensive divorces, you might be surprised to learn that most divorces are short, simple and relatively cheap. Generally speaking, divorce tends to be more likely to go to a contested trial than other areas of litigation, but that's because there are, in many cases, about five areas in which there are potential issues to dispute (grounds of divorce, property division, spousal support, child support, and child custody/visitation) - so while each of those five areas is about as likely to settle as any other type of litigation, settling all five in one case is much more challenging. That being said, divorce cases being "more likely" to go to trial is not the same as saying divorce cases "generally do" go to trial - they do not. Most cases ultimately do settle completely - it's just, in my experience, closer to 60-65% of divorce cases, as opposed to about 85-90% of other types of cases.
So, what happens if, despite the hurt feelings and all the emotions that caused your marriage to end, you find yourself in a situation where you and your soon-to-be ex actually are in agreement on the five issues I listed above? In today's blog post, I hope to cover the basics of obtaining an uncontested divorce in Virginia.
First, Get it in Writing
If you are in agreement on everything, it would be to everyone's benefit to get it in writing. Technically, you can do this on your own - write down your agreement, each of you signs it in front of a notary public, and suddenly you have a binding marital agreement (see this post for more on marital and pre-marital agreements). That being said, there are many ways that you can screw up putting this together, so it's always best to have a lawyer draft your agreement (typically referred to as a "separation agreement").
So, why have a signed agreement? Well, first of all this allows you to get divorced faster if you do not have children (after six months of separation instead of a year). Moreover, this prevents your spouse from backing out of your agreement at the last minute, as separation agreements are very hard to challenge. Finally, it provides clear guidance to attorneys, courts and each spouse going forward as to what is supposed to happen - much clearer guidance than you typically get without a written agreement.
Next, Wait the Requisite Time Period
If you do not have children and you have a signed separation agreement, you can get divorced after six months of separation. If you do have minor children or do not have a separation agreement, you must wait until you have been separated for a year. In either case, you cannot take further action to get divorced until that time has elapsed. During the waiting period, however, you can start getting your ducks in a row so you can complete the remaining steps as quickly as possible.
Identify a Corroborating Witness
To complete your divorce you will need someone to "corroborate" your eligibility for divorce. This should be someone who is not you or your spouse, who knows both you and your spouse, knew when you and your spouse separated, and has visited you in your home at least several times since your separation. Your corroborating witness can be any adult other than you or your spouse, so it does not matter if they are "biased" (such as a parent, sibling, or adult child). It is best to talk to your corroborating witness as soon as possible to make sure they are comfortable serving in that role. Let them know they will not need to come to court and will just be signing an affidavit.
File Your Paperwork in Order
Once the time period for separation has passed, it is time for you to file. It is very important that you file your paperwork in Order however. The paperwork you will need to file in court is as follows (and in this order):
- Complaint for Divorce (initiates the divorce suit)
- Acceptance/waiver of service of process and notice signed by your spouse (allows divorce to proceed faster)
- Affidavits for divorce signed by you and your corroborating witness
- Completed Virginia State Form VS-4
- Final Decree of Divorce signed by you (or your attorney) and your spouse
Why Hire an Attorney
So, the above process probably seems simple enough - so why hire an attorney for it? Well, because as simple seeming as it is, it is very easy to screw up if you are not familiar with the process. In fact, I have many clients come to me with cases they filed where their divorce got rejected, and often their case is so messed up by the time it gets to me I have to close their original case and start over from scratch - which is typically more expensive than if they had just come to me in the first place.
So, what's so easy to screw up? Well, it's easy to have a separation agreement that doesn't actually cover everything it has to, or leaves important matters out. It's easy to not include all the statutorily required statements in the Complaint, Acceptance/waiver, affidavits, or Final Decree (the affidavits and Final Decree are the toughest since there are things that are required by law to be in them that many people do not know about). While you can often get samples from your local courthouse, they usually are not perfect, and moreover, they usually do not include sample affidavits, meaning you will have to go to court for what is called an ore tenus hearing, rather than proceed with a simple affidavit.
On top of it all, an attorney for an uncontested divorce is much cheaper than an attorney for contested divorces. Attorneys typically charge flat fees for uncontested divorces - and depending on the complexity of the case, these fees can be as little as $600 (though $1,200 or so is more common, with up to $2,000 or so for more complicated cases that require drafting and negotiation of a separation agreement along with filing of the divorce itself). Compare this to the $15,000 to $75,000 that a typical contested divorce runs (with atypical contested divorces I have heard of running as high as $250,000 to $500,000 in legal fees) and you can see how an uncontested divorce is a much cheaper option.
All in all, for the security that comes from having an attorney handling your uncontested divorce, the cost truly is not that high, and is certainly worth it.
Conclusion
Most divorces in Virginia are uncontested. They require neither protracted litigation, nor even an appearance in court. Hiring an attorney is the simplest way to make sure that your uncontested divorce runs as smoothly as possible. If you are involved in a divorce where all matters are actually resolved (or look to be resolved fairly easily), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Thursday, October 30, 2014
Virginia Tenants' "Get Out of Jail Free" Card - the Redemption Tender or Payment
As always, before reading my blog post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
[UPDATE: Some information in this blog post is no longer accurate due to changes in the law. Please see my blog post on changes in the law for 2019 for more information.]
Introduction
I have repeatedly covered on this blog the concept of "self-help" in landlord/tenant law. Self-help is when a landlord or tenant takes matters into their own hands, without the court, and for a tenant typically includes withholding rent. In residential leases, self-help is strictly forbidden by law. Today, however, I want to touch on a different but related topic - delayed rent.
Say you are a tenant and you've had a financial issue arise. You know you will have the money to pay your rent in a few weeks, but you don't have it right now. What should you do? Well, recommendation one is to talk to the landlord and see if he will agree to accept a delayed payment (if he does, get that agreement in writing). If that doesn't work, recommendation two is to try to scrape the money together to pay. If that doesn't work, recommendation three is to prepare to utilize a little known feature of Virginia landlord/tenant law called the "redemption tender" or "redemption payment." I will get into the risks and drawbacks of this approach later in this post - there's a reason it is my third recommendation, not my first - but executed properly, this process can buy you about a month to get a late rent payment in without facing eviction.
In today's blog post, I will discuss the way "redemption tenders/payments" work, how to execute them, and their risks and drawbacks.
VRLTA vs. Non-VRLTA Leases
Any long-time reader of my blog knows that the first question you need to ask when dealing with landlord/tenant matters is which landlord/tenant law applies to your lease. The basic breakdown of figuring that out can be found here. Once you figure out which law applies, the next question is to ask what the difference between the two laws may be. In this case, the law is largely the same. "Redemption tenders/payments" for non-VRLTA leases are governed by Virginia Code Section 55-243 and for VRLTA leases they are governed by Virginia Code Section 55-248.34:1. The relevant provisions of the two code sections are identical, so for most purposes this post applies equally to both kinds of leases. Note, however, that the non-VRLTA provision does not have a non-waiver rule, meaning that a lease could probably waive your right to use this procedure. I will say, however, that to date I have never seen a lease that waives the right to a "redemption tender/payment."
So What Is a Redemption Tender/Payment?
"Redemption tenders" and "redemption payments" are two processes that, if completed properly, will cause an unlawful detainer action (a civil case for eviction) to be dismissed entirely (thus "redeeming" your right to live on the property) if the reason for the unlawful detainer is non-payment of rent. In other words, to take advantage of this provision of law, you will have had to not pay your rent, been served with a pay or quit notice, not paid in accordance with that notice, and had an unlawful detainer action filed against you.
A "redemption tender" is a fairly limited option primarily available to those with lower incomes. A redemption tender is a letter signed by a governmental entity or a non-profit charity promising payment in full of the amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs - within 10 days after the first return day on the unlawful detainer. If presented to the court at the return day, the return day will be continued for 10 days. If the payment is made to the landlord before that time is up, the unlawful detainer is dismissed and your lease is resumed. If it is not, possession is granted to the landlord immediately, without a trial.
A "redemption payment" occurs when at your court date (specifically, the first return) you pay the landlord, the court, or the landlord's attorney the full amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs. If you do this, the unlawful detainer will be dismissed, and your lease is resumed.
Limitations
There are some limitations on this option. For example, this option is only available for residential leases, not commercial leases (unless provided for in the lease). Additionally, a "redemption payment" can only be done once in any given 12 month period. Finally, if you dispute the amount owed to the landlord, then a redemption is not available to you as the court is unlikely to be willing (and in the case of a redemption tender, is not allowed) to hear an argument on this for the purpose of a redemption.
Risks and Drawbacks
So, the risks and drawbacks of the "redemption" approach should be very clear. The risk is mainly that you will not handle it properly - that you will underpay, still get evicted, and now be out the money that you paid. If you have done one before, you may forget when your last "redemption payment" was and try to do it a second time in 12 months, getting evicted in the process. The final risk, if you have a non-VRLTA lease, is that you may have missed a lease provision waiving your right to a redemption, in which case you will be out of luck. I would also note that as this is a very rarely used provision of law, you also risk appearing in front of a judge who does not understand it (and has never seen it before) and may not apply it properly.
This approach also has drawbacks. First and foremost, it is much more expensive than paying your rent on time or having an agreed delay. You will have to pay not only the rent, but the court costs and attorneys' fees of your landlord and any late charges included in your lease. You also lose your ability to contest the amount you owe - if you disagree with what your landlord claims you owe, you either have to go to trial (and risk eviction) or suck it up and pay what your landlord claims. Finally, you create a public record (since a lawsuit has been filed) of your non-payment of rent that future potential landlords may discover.
For these reasons, I consider redemption to be a last resort option.
Conclusion
"Redemption tenders" and "redemption payments" are last resort options for tenants who simply cannot pay their rent on time for a month but know they will have the money later. If you are considering making a redemption payment or have a tenant who is attempting to do so, you may want to consult with an attorney to make sure it is being done right. You can contact me by calling (703)281-0134 or e-mailing me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
[UPDATE: Some information in this blog post is no longer accurate due to changes in the law. Please see my blog post on changes in the law for 2019 for more information.]
Introduction
I have repeatedly covered on this blog the concept of "self-help" in landlord/tenant law. Self-help is when a landlord or tenant takes matters into their own hands, without the court, and for a tenant typically includes withholding rent. In residential leases, self-help is strictly forbidden by law. Today, however, I want to touch on a different but related topic - delayed rent.
Say you are a tenant and you've had a financial issue arise. You know you will have the money to pay your rent in a few weeks, but you don't have it right now. What should you do? Well, recommendation one is to talk to the landlord and see if he will agree to accept a delayed payment (if he does, get that agreement in writing). If that doesn't work, recommendation two is to try to scrape the money together to pay. If that doesn't work, recommendation three is to prepare to utilize a little known feature of Virginia landlord/tenant law called the "redemption tender" or "redemption payment." I will get into the risks and drawbacks of this approach later in this post - there's a reason it is my third recommendation, not my first - but executed properly, this process can buy you about a month to get a late rent payment in without facing eviction.
In today's blog post, I will discuss the way "redemption tenders/payments" work, how to execute them, and their risks and drawbacks.
VRLTA vs. Non-VRLTA Leases
Any long-time reader of my blog knows that the first question you need to ask when dealing with landlord/tenant matters is which landlord/tenant law applies to your lease. The basic breakdown of figuring that out can be found here. Once you figure out which law applies, the next question is to ask what the difference between the two laws may be. In this case, the law is largely the same. "Redemption tenders/payments" for non-VRLTA leases are governed by Virginia Code Section 55-243 and for VRLTA leases they are governed by Virginia Code Section 55-248.34:1. The relevant provisions of the two code sections are identical, so for most purposes this post applies equally to both kinds of leases. Note, however, that the non-VRLTA provision does not have a non-waiver rule, meaning that a lease could probably waive your right to use this procedure. I will say, however, that to date I have never seen a lease that waives the right to a "redemption tender/payment."
So What Is a Redemption Tender/Payment?
"Redemption tenders" and "redemption payments" are two processes that, if completed properly, will cause an unlawful detainer action (a civil case for eviction) to be dismissed entirely (thus "redeeming" your right to live on the property) if the reason for the unlawful detainer is non-payment of rent. In other words, to take advantage of this provision of law, you will have had to not pay your rent, been served with a pay or quit notice, not paid in accordance with that notice, and had an unlawful detainer action filed against you.
A "redemption tender" is a fairly limited option primarily available to those with lower incomes. A redemption tender is a letter signed by a governmental entity or a non-profit charity promising payment in full of the amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs - within 10 days after the first return day on the unlawful detainer. If presented to the court at the return day, the return day will be continued for 10 days. If the payment is made to the landlord before that time is up, the unlawful detainer is dismissed and your lease is resumed. If it is not, possession is granted to the landlord immediately, without a trial.
A "redemption payment" occurs when at your court date (specifically, the first return) you pay the landlord, the court, or the landlord's attorney the full amount due to the landlord - including rent, late fees, other charges, reasonable attorneys' fees, and court costs. If you do this, the unlawful detainer will be dismissed, and your lease is resumed.
Limitations
There are some limitations on this option. For example, this option is only available for residential leases, not commercial leases (unless provided for in the lease). Additionally, a "redemption payment" can only be done once in any given 12 month period. Finally, if you dispute the amount owed to the landlord, then a redemption is not available to you as the court is unlikely to be willing (and in the case of a redemption tender, is not allowed) to hear an argument on this for the purpose of a redemption.
Risks and Drawbacks
So, the risks and drawbacks of the "redemption" approach should be very clear. The risk is mainly that you will not handle it properly - that you will underpay, still get evicted, and now be out the money that you paid. If you have done one before, you may forget when your last "redemption payment" was and try to do it a second time in 12 months, getting evicted in the process. The final risk, if you have a non-VRLTA lease, is that you may have missed a lease provision waiving your right to a redemption, in which case you will be out of luck. I would also note that as this is a very rarely used provision of law, you also risk appearing in front of a judge who does not understand it (and has never seen it before) and may not apply it properly.
This approach also has drawbacks. First and foremost, it is much more expensive than paying your rent on time or having an agreed delay. You will have to pay not only the rent, but the court costs and attorneys' fees of your landlord and any late charges included in your lease. You also lose your ability to contest the amount you owe - if you disagree with what your landlord claims you owe, you either have to go to trial (and risk eviction) or suck it up and pay what your landlord claims. Finally, you create a public record (since a lawsuit has been filed) of your non-payment of rent that future potential landlords may discover.
For these reasons, I consider redemption to be a last resort option.
Conclusion
"Redemption tenders" and "redemption payments" are last resort options for tenants who simply cannot pay their rent on time for a month but know they will have the money later. If you are considering making a redemption payment or have a tenant who is attempting to do so, you may want to consult with an attorney to make sure it is being done right. You can contact me by calling (703)281-0134 or e-mailing me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Thursday, October 23, 2014
No Blog Post This Week
Hi all. It looks like I've come down with whatever's been going around, so it does not look like I'm going to have the wherewithal to do a blog post this week. I'll be back next week though!
That being said, it's always a good time to remember that just because you haven't paid your rent, doesn't mean the landlord can kick you out without a court order - and this is true whether you are covered by the Virginia Residential Landlord and Tenant Act or not. You can read more about that here.
That being said, it's always a good time to remember that just because you haven't paid your rent, doesn't mean the landlord can kick you out without a court order - and this is true whether you are covered by the Virginia Residential Landlord and Tenant Act or not. You can read more about that here.
Thursday, October 16, 2014
Defining Marital Property in Virginia
As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most important and well-known topics that comes up in divorce law is the division of property. It is also a topic that I have almost completely avoided on this blog. It's not that I don't think it's important - it most certainly is important. Rather, I have had trouble coming up with ways to talk about it while keeping blog posts on the topic of a reasonable length. You see, I can go on and on about the weird rules of spousal support, or how you calculate child support, but in my personal opinion, nothing about divorce law is more complicated than the laws surrounding the division of property.
Virginia is an "equitable division" state. We are also not a "community property" state. What this means is that we do not consider all property owned by married couples to be eligible for division, and when property is divided, there is no presumption that it should be divided 50/50. As a result, there are very complicated statutes on property division, and very, very many volumes of case law interpreting it. Today, I've decided to start addressing some of these issues, and to do so I'm starting at the beginning - what property actually gets divided?
Today's blog post will give a brief overview of the meaning of marital property - the property that gets divided in a divorce. Even this is a complicated concept with volumes of case law, so today's post will remain fairly basic.
Marital Property, Separate Property and Hybrid Property
So, as you can probably guess from the names, marital property is property that is considered to belong "to the marriage," while separate property belongs "to the person." Marital property is divided in a divorce, separate property is not - it stays with its owner. Hybrid property is property that is itself both separate and marital, so only the marital portion of hybrid property is divided.
All property you own prior to the marriage is generally considered your separate property. Similarly, any property you acquire after you separate is also considered your separate property. Some examples of this may be a retirement account that you owned before you were married - it is your separate property. A bank account that only has money in it that you earned after you separated - also your separate property.
All property you acquire during the marriage, however, is generally considered to be marital. Money you earn during the marriage, for example, is marital property, and the things it purchases are marital property.
But what happens when you mix separate and marital property?
Transmutation vs. Tracing
The general rule is that if you mix separate and marital property, the whole property becomes "transmuted" to marital property. There is an exception, however, where the owner of the separate property can "completely trace" his property.
I will give two examples. If you had a bank account before marriage but then started depositing your marital income into that account, the account will become marital. Money is fungible, and as a result, there is no realistic way to figure out what portion of the bank account is now marital and what portion is not.
On the other hand, if you use an entirely separate bank account to pay half the down payment on the house, and you can prove that the money was, in fact, used for the down payment, you now know what share of the initial equity in the house was separate, and can use that to calculate the portion of the house that remains separate.
Marital Contributions to Separate Property
There is another rule of some importance to know as well. If you bring separate property into the marriage, but then contribute marital property to it, or either party makes significant efforts to assist it during the marriage, and the property has a "substantial" increase in value, it might become hybrid property. There are several situations where this comes up - for example, a separately owned house brought into marriage where substantial work and improvements are then performed on it during the marriage. A recent Virginia Supreme Court case also counted as hybrid a pre-marital retirement account to which no contributions were made during the marriage, but on which the spouse who owned it had done a great deal of work in terms of active trading to increase its value during the marriage.
Retirement Plans
Now, I've alluded to retirement plans a couple of times, but they are one of the harder bits of property to define, so I do want to address that as well. Retirement plans come in two forms - defined contribution (such as an IRA or 401k) and defined benefit (such as a pension). Both are considered property in divorce, not merely future potential income, although payments from these plans can be considered income for the purpose of determining support (the interplay between income for support and income for property division is a whole other issue probably worthy of its own post). As a result, both are divisible, even if you are nowhere near retirement age yet.
For defined contribution plans, the "marital share" is generally considered to be all contributions made during the marriage, and the earnings and losses thereon. Contributions (and their earnings and losses) from before the marriage and from after the separation are generally considered a separate portion.
For defined benefit plans, there are a number of approaches that can be taken to determining the marital share, but the most common I have seen is the fraction formula. In the fraction formula, the percentage of the defined benefit plan that is considered marital is equal to an equation defined as x / y * 100 (you can leave out the 100 if you are just going for a decimal fraction rather than the percentage). In that formula, x is the number of months you were employed by the employer offering this plan where your month of work was credited towards your plan and you were married and not separated. For the denominator, y is the total number of months of work credited towards your plan as of the date you retire, whether married or not. Usually x will be defined by the date of divorce, but y will not be, and that's alright - y is not expected to be known yet as of the divorce date and the division can still be done with y unknown.
Now, it is worth noting that unlike the other areas of law in property division, there is a specific rule regarding division of retirement accounts. Specifically, once you have determined the marital share of a retirement plan, the non-owning spouse cannot be awarded more than 50% of the marital share of a retirement account. This was done to prevent people from potentially having their retirement savings wiped out by a divorce.
Restricted Stock Options
Another complicated area of property law is restricted stock options - these being stock options frequently awarded by employers which cannot be exercised until a certain date. If that date is after the separation, then you don't really have these options before the separation, so there is some debate in the law about whether they are marital or not. The general rule as it stands right now is that if they were earned during the marriage (so, for example, they were given as a bonus for work done during the marriage), they are marital, regardless of when they vest. If, however, they were given by employers not as compensation for work done, but rather as merely an incentive to continue working for that employer, then they are separate if they vest after the separation date.
This is an area of law that is still evolving, however, and I cannot say the above is the final word on the matter.
Separate Property Acquired During the Marriage
Now, there are some exceptions to the rule that property acquired during the marriage is marital that are worth discussing. The first exception is that property acquired during the marriage solely with separate property (so, for example, a TV bought with money from a separate, pre-marital bank account) is still separate. The second is that anything inherited during the marriage is separate property, unless the inheritance is from a will that specifically bequeathed the inheritance to the couple, rather than just one of the parties. The third is that any gifts that are given by someone other than the person's spouse to the person during the marriage also remain separate property.
Ownership Presumptions
I'm going to wrap things up here because this post is already longer than I'd like, but I do want to note that the law does have some presumptions regarding ownership that are worth remembering.
First and foremost, any property that is jointly owned is presumed to be marital. You can rebut this presumption with some strong evidence, but it is fairly unusual that a court will consider something jointly owned to be entirely separate - at best, you will sometimes get a finding of hybrid property.
Second, the law also presumes that property that is separately titled is separate. That being said, this presumption is much easier to rebut, because as soon as you show that the property was actually acquired during the marriage, the presumption switches to it being marital property.
Nonetheless, it is important to know these presumptions because of their impact on the burden of proof. If property is jointly owned, the party trying to prove separate ownership has the burden to prove it. If the property is separately owned, the party trying to assert marital ownership has the burden to establish that it was acquired during the marriage, but then the other party would have the burden to establish that it was still separate property.
Conclusion
The law surrounding property division is, in my opinion, the most complicated part of property law. Consider that this entire blog post only even talked about what property gets divided - we didn't even touch how that division is actually done - and we didn't even talk about all the topics in that arena. This is one of the biggest reasons why you should get an attorney if you have any property at all that needs to be divided. If you are involved in a divorce and have property to be divided, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our consultations are free for up to half an hour!
Introduction
One of the most important and well-known topics that comes up in divorce law is the division of property. It is also a topic that I have almost completely avoided on this blog. It's not that I don't think it's important - it most certainly is important. Rather, I have had trouble coming up with ways to talk about it while keeping blog posts on the topic of a reasonable length. You see, I can go on and on about the weird rules of spousal support, or how you calculate child support, but in my personal opinion, nothing about divorce law is more complicated than the laws surrounding the division of property.
Virginia is an "equitable division" state. We are also not a "community property" state. What this means is that we do not consider all property owned by married couples to be eligible for division, and when property is divided, there is no presumption that it should be divided 50/50. As a result, there are very complicated statutes on property division, and very, very many volumes of case law interpreting it. Today, I've decided to start addressing some of these issues, and to do so I'm starting at the beginning - what property actually gets divided?
Today's blog post will give a brief overview of the meaning of marital property - the property that gets divided in a divorce. Even this is a complicated concept with volumes of case law, so today's post will remain fairly basic.
Marital Property, Separate Property and Hybrid Property
So, as you can probably guess from the names, marital property is property that is considered to belong "to the marriage," while separate property belongs "to the person." Marital property is divided in a divorce, separate property is not - it stays with its owner. Hybrid property is property that is itself both separate and marital, so only the marital portion of hybrid property is divided.
All property you own prior to the marriage is generally considered your separate property. Similarly, any property you acquire after you separate is also considered your separate property. Some examples of this may be a retirement account that you owned before you were married - it is your separate property. A bank account that only has money in it that you earned after you separated - also your separate property.
All property you acquire during the marriage, however, is generally considered to be marital. Money you earn during the marriage, for example, is marital property, and the things it purchases are marital property.
But what happens when you mix separate and marital property?
Transmutation vs. Tracing
The general rule is that if you mix separate and marital property, the whole property becomes "transmuted" to marital property. There is an exception, however, where the owner of the separate property can "completely trace" his property.
I will give two examples. If you had a bank account before marriage but then started depositing your marital income into that account, the account will become marital. Money is fungible, and as a result, there is no realistic way to figure out what portion of the bank account is now marital and what portion is not.
On the other hand, if you use an entirely separate bank account to pay half the down payment on the house, and you can prove that the money was, in fact, used for the down payment, you now know what share of the initial equity in the house was separate, and can use that to calculate the portion of the house that remains separate.
Marital Contributions to Separate Property
There is another rule of some importance to know as well. If you bring separate property into the marriage, but then contribute marital property to it, or either party makes significant efforts to assist it during the marriage, and the property has a "substantial" increase in value, it might become hybrid property. There are several situations where this comes up - for example, a separately owned house brought into marriage where substantial work and improvements are then performed on it during the marriage. A recent Virginia Supreme Court case also counted as hybrid a pre-marital retirement account to which no contributions were made during the marriage, but on which the spouse who owned it had done a great deal of work in terms of active trading to increase its value during the marriage.
Retirement Plans
Now, I've alluded to retirement plans a couple of times, but they are one of the harder bits of property to define, so I do want to address that as well. Retirement plans come in two forms - defined contribution (such as an IRA or 401k) and defined benefit (such as a pension). Both are considered property in divorce, not merely future potential income, although payments from these plans can be considered income for the purpose of determining support (the interplay between income for support and income for property division is a whole other issue probably worthy of its own post). As a result, both are divisible, even if you are nowhere near retirement age yet.
For defined contribution plans, the "marital share" is generally considered to be all contributions made during the marriage, and the earnings and losses thereon. Contributions (and their earnings and losses) from before the marriage and from after the separation are generally considered a separate portion.
For defined benefit plans, there are a number of approaches that can be taken to determining the marital share, but the most common I have seen is the fraction formula. In the fraction formula, the percentage of the defined benefit plan that is considered marital is equal to an equation defined as x / y * 100 (you can leave out the 100 if you are just going for a decimal fraction rather than the percentage). In that formula, x is the number of months you were employed by the employer offering this plan where your month of work was credited towards your plan and you were married and not separated. For the denominator, y is the total number of months of work credited towards your plan as of the date you retire, whether married or not. Usually x will be defined by the date of divorce, but y will not be, and that's alright - y is not expected to be known yet as of the divorce date and the division can still be done with y unknown.
Now, it is worth noting that unlike the other areas of law in property division, there is a specific rule regarding division of retirement accounts. Specifically, once you have determined the marital share of a retirement plan, the non-owning spouse cannot be awarded more than 50% of the marital share of a retirement account. This was done to prevent people from potentially having their retirement savings wiped out by a divorce.
Restricted Stock Options
Another complicated area of property law is restricted stock options - these being stock options frequently awarded by employers which cannot be exercised until a certain date. If that date is after the separation, then you don't really have these options before the separation, so there is some debate in the law about whether they are marital or not. The general rule as it stands right now is that if they were earned during the marriage (so, for example, they were given as a bonus for work done during the marriage), they are marital, regardless of when they vest. If, however, they were given by employers not as compensation for work done, but rather as merely an incentive to continue working for that employer, then they are separate if they vest after the separation date.
This is an area of law that is still evolving, however, and I cannot say the above is the final word on the matter.
Separate Property Acquired During the Marriage
Now, there are some exceptions to the rule that property acquired during the marriage is marital that are worth discussing. The first exception is that property acquired during the marriage solely with separate property (so, for example, a TV bought with money from a separate, pre-marital bank account) is still separate. The second is that anything inherited during the marriage is separate property, unless the inheritance is from a will that specifically bequeathed the inheritance to the couple, rather than just one of the parties. The third is that any gifts that are given by someone other than the person's spouse to the person during the marriage also remain separate property.
Ownership Presumptions
I'm going to wrap things up here because this post is already longer than I'd like, but I do want to note that the law does have some presumptions regarding ownership that are worth remembering.
First and foremost, any property that is jointly owned is presumed to be marital. You can rebut this presumption with some strong evidence, but it is fairly unusual that a court will consider something jointly owned to be entirely separate - at best, you will sometimes get a finding of hybrid property.
Second, the law also presumes that property that is separately titled is separate. That being said, this presumption is much easier to rebut, because as soon as you show that the property was actually acquired during the marriage, the presumption switches to it being marital property.
Nonetheless, it is important to know these presumptions because of their impact on the burden of proof. If property is jointly owned, the party trying to prove separate ownership has the burden to prove it. If the property is separately owned, the party trying to assert marital ownership has the burden to establish that it was acquired during the marriage, but then the other party would have the burden to establish that it was still separate property.
Conclusion
The law surrounding property division is, in my opinion, the most complicated part of property law. Consider that this entire blog post only even talked about what property gets divided - we didn't even touch how that division is actually done - and we didn't even talk about all the topics in that arena. This is one of the biggest reasons why you should get an attorney if you have any property at all that needs to be divided. If you are involved in a divorce and have property to be divided, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our consultations are free for up to half an hour!
Tuesday, October 14, 2014
Classic Law is Your Friend: Using Common Sense in Virginia Legal Matters
Today's classic blog post discusses situations where, in reality, you may be better off listening to your common sense than the strictest rules of law. It was originally posted on November 6, 2013 and was titled "Common Sense vs. The Law - When Doing What Makes Sense IS the Right Choice."
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles involved in this post apply only to the Commonwealth of Virginia.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea. [Remember, however, that every situation is unique, and if you aren't sure which way to go, you are best off speaking with an attorney who can address your specific case.]
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law [or more specifically, their rights under the law] and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following [at least usually] is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles involved in this post apply only to the Commonwealth of Virginia.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea. [Remember, however, that every situation is unique, and if you aren't sure which way to go, you are best off speaking with an attorney who can address your specific case.]
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law [or more specifically, their rights under the law] and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following [at least usually] is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
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