As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, the legal principles discussed in this blog post are applicable only to the Commonwealth of Virginia.
Update: Some of the information in the below blog post is now outdated due to changes in the law. Please see my 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?" I'll get the reverse question if my consult is with the spouse who makes less. Unfortunately, the answer I always have to give, as is so often the case, is "it depends." However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).
Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount. Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover). This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely. Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.
Four Different Spousal Support Situations
To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely. Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).
To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief. This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!
Contractual Spousal Support
Contractual spousal support is probably the easiest of these topics to cover. If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement. Note, however, the court will enforce it precisely. If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.
This is very important to understand. I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore. I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification. Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.
Spousal Support Pendente Lite
Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time. As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court. Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.
In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula. Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income. When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.
The law laid out for pendente lite cases in the Circuit Court is not as clear cut. Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse." As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings. Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide). Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc. Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not. Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.
J&DR Court Spousal Support
Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law. Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support." That's it, no further guidance from the law. Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.
Circuit Court Support
In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E). These factors are, essentially:
- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider
In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.
After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.
As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.
Duration of Spousal Support Award
The next question I get asked, however, is for how long spousal support is going to be paid. The answer, again, is "it depends." For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it. For pendente lite support, the amount will last until the case is over. For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court. For Separate Maintenance and Divorce, it depends.
Until a few decades ago, spousal support was always permanent. It was in place until a terminating event occurred, or the court modified it to $0. Nowadays, permanent support is fairly rare. Instead, the court considers the same factors discussed above when deciding the duration of support. The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.
A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example). This is just a rule of thumb, however, and should not be relied on outside the negotiating arena. I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages. It really depends on the judge and the circumstances of your case.
Terminating Events
Now, you've heard me mention a few times "terminating events." These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration. These events, which are laid out in Virginia Code Section 20-109(A) & (D) are: a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months. If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.
The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision. Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions. In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived. This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee! Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee." Same for the other conditions.
Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient. If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies. If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage. Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!
Why Separate Maintenance
Now, you've also seen me talk several times about "separate maintenance." You might be wondering why someone would file a Separate Maintenance case instead of for divorce. Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support. The parties have to wait for a year of separation before they can even file for support. Separate Maintenance allows one spouse to get support from the other while the parties are still married. This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.
There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable. For example, many health insurance plans do not allow someone to cover an ex-spouse. A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.
Conclusion
Spousal support law in Virginia is extremely complicated. There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought. Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning. If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office. Your initial consultation is free for up to half an hour!
Tuesday, September 24, 2013
Wednesday, September 18, 2013
What Your Potential Lawyer Isn't Telling You - The Ethics of Legal Advertising
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Note: This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post. Please remember, you can submit "ask the lawyer" questions to me any time you want. The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive? All I see is a vague reference to the 'Rules of Professional Conduct.'"
Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising. The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring. Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.? But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.
While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading." The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue. This is the same as most industries. The rule against "misleading" advertising, however, is where the rules get convoluted. "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think. Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."
"Misleading" Advertising - Subjective Statements
Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements. These are statements about the quality of their work. They cannot say they do "good" work, that they "are great," etc. They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them. This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements. This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.
"Misleading" Advertising - Unexplained Objective Statements
You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear. This would be wrong. There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers. For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday." Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday." Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.
"Misleading" Advertising - "Vulnerable" Targets
Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to. In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them. This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free. For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail). Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.
Forums We "Control"
The final issue to address today gets back to the question that sparked this post. Why does all of the above mean that I cannot allow subjective comments on my blog? Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules. In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules. Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.
As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now. These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.
Conclusion
This post is essentially a long answer to a short question - why can't people comment about me on my blog? I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising. If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.
Introduction
Note: This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post. Please remember, you can submit "ask the lawyer" questions to me any time you want. The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive? All I see is a vague reference to the 'Rules of Professional Conduct.'"
Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising. The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring. Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.? But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.
While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading." The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue. This is the same as most industries. The rule against "misleading" advertising, however, is where the rules get convoluted. "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think. Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."
"Misleading" Advertising - Subjective Statements
Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements. These are statements about the quality of their work. They cannot say they do "good" work, that they "are great," etc. They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them. This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements. This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.
"Misleading" Advertising - Unexplained Objective Statements
You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear. This would be wrong. There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers. For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday." Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday." Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.
"Misleading" Advertising - "Vulnerable" Targets
Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to. In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them. This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free. For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail). Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.
Forums We "Control"
The final issue to address today gets back to the question that sparked this post. Why does all of the above mean that I cannot allow subjective comments on my blog? Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules. In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules. Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.
As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now. These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.
Conclusion
This post is essentially a long answer to a short question - why can't people comment about me on my blog? I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising. If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.
Wednesday, September 11, 2013
Not Doing What You're Supposed To - Contracts and Specific Performance Law
As always, please review this blog's disclaimer before reading this post by following the link at the top of this page or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Back when I was in law school, a friend of mine hired a home contractor to do some work on his house. The contractor backed out at the last minute, and the friend contacted me to ask if I knew how to make the contractor do the work. When I explained that my friend would need to hire a new contractor, get the work done, and then sue this contractor for any difference in cost paid, and any loss of use he may have suffered while waiting, my friend was indignant. "I don't want money from the guy," he said, "I just want him to do the work he signed a contract to do. I went through a lot of effort to find this contractor, and I very much want him to be the one to do it." My friend was very upset when I explained that, all that being true, he still couldn't force the contractor to do the work. I recommended that he consider consulting an attorney to make sure I was right, since I was, after all, not a lawyer yet, so I have no idea if he actually did, or how that turned out, but now that I am a practicing attorney, I am more certain than I was then that what I told him was correct.
The fact is, in a breach of contract case, there are two types of remedies that can be awarded - a money judgment or "specific performance." The types are exactly as they sound. A money judgment is a judgment saying that the breaching party owes the other party a certain amount of money. A specific performance order requires the breaching party to perform under the terms of the contract under penalty of contempt.
Specific performance is very rarely awarded, and almost all breach of contract claims end with a money judgment (assuming that a wrongful breach is found to have occurred). In this blog post I will attempt to explain why specific performance is so rarely awarded, and what situations might be those in which a specific performance award is possible.
Law vs. Equity - Judgments vs. Injunctions
You see, there are two general types of court orders - judgments, and injunctions. I'm using those terms very loosely, but that's basically how it breaks down. In general, a judgment is a ruling by a court that one person owes another person a certain amount of money (or that they do not owe any money). An injunction requires a person to do something, or not to do something. A judgment does not order someone to actually pay the money they owe (and post-judgment collections is a whole other blog post for the future), so violating a judgment does not subject you to a contempt of court finding, while violating an injunction does.
All of this used to be somewhat simple to follow because every state and the federal government had two entirely separate court systems to deal with these types of cases. Courts sitting "in equity" would issue injunctions and similar such orders that had to be followed under penalty of contempt. Courts sitting "in law" or "common law courts" would issue money judgments. The court you were in front of was a good determiner of what kind of order you would get. This all got muddled when, decades ago, jurisdictions started abolishing the distinction between the two courts and lumping the courts together (although it's worth noting this didn't happen in Virginia until 2006). Today, there is no separate equity and law court, meaning that in a single lawsuit, you can seek both legal and equitable relief. Many of the distinctions between law and equity, however, especially in terms of what relief you can seek, still exist. Equitable relief is still injunctive, and legal relief is still judgments.
So, how does this relate to contract law? Well, centuries ago a rule developed in the equity courts referred to as "adequacy of remedy at law." The idea is that if you could sue someone in the common law court for the exact same thing you were suing them for in the equity court, and get a money judgment, and if that money judgment is actually paid you would sufficiently be "made whole," then you could not get equitable relief. In other words, if you could sue someone for money damages, then the equity courts were closed to you. Even though the equity courts are gone, this rule is one that still survives. If you can get a judgment that, if paid, would fully make up for what you have lost, then you cannot get an injunction.
So, as you've probably guessed, money damages for a contract come in the form of a judgment, while specific performance comes in the form of an injunction. In other words, in the old system, if you sued for breach of contract in the common law court, you were seeking money damages, and if you sued for breach of contract in the equity court, you were seeking specific performance. As a result, the equity rule of adequacy of the remedy at law applied to specific performance, and still does. If you can get a money judgment that will sufficiently make you whole from the breach of contract, then a court will not order specific performance.
What makes a remedy at law "adequate"?
So, your next question might be, how would a remedy at law be "adequate"? Remember, first of all, that this doctrine assumes that you will be able to collect your judgment, regardless of the likelihood of that actually happening, so the fact that a judgment is not enforceable by contempt does not come into the adequacy calculation. Adequacy basically comes down to a simple question. Can you quantify, with an actual number, the value of what you have lost due to the breach? In other words, are your losses entirely tangible?
Again, uncertainties don't speak to adequacy. You can get estimates, expert witnesses can testify as to long term losses, interest rates, etc. There is a way to quantify almost everything. Differences in quality, time loss, etc. are all quantifiable losses. If there is any way at all to quantify all of your losses, then you have an adequate remedy at law, and you will not be awarded specific performance.
So when isn't a remedy at law "adequate"?
So, you might read the above and think "well, gee, to some degree everything's quantifiable, so why even have a specific performance doctrine?" As you might guess, there must be something "special" about what you are losing due to the breach in order for a remedy at law to be inadequate. For example, maybe you contracted to buy something that was particularly unique. Courts consider tracts of real estate, for example, to always be unique, so if a seller has an inexcusable default in a contract to sell their house, you might be able to get a court order to require the seller to go through with the sale. You will find similar situations with antiques, particular artworks, etc.
Maybe you've contracted for services, and the person you contracted with is the only contractor performing that service within a reasonable distance? Then, the service might be considered unique, since you cannot replace the service, so the loss would not be readily quantified and a specific performance award might be in order.
Marital agreements are usually considered to be enforceable by specific performance as well. This is because when forming the contract, that the person named be the one performing the duties laid out, as opposed to just that those duties get done, is considered to be a central component of the agreement.
Those are just some examples, and there are more, but you should understand that by and large the comment I started this section with is right. A vast majority of damages are quantifiable, and as a result, a vast majority of breaches of contract are only remediable with a money judgment.
Conclusion
When someone breaches a contract with you, it is normal to want them to remedy the breach themselves. The law, however, places a premium on issuing money judgments over issuing injunctive orders which coerce someone into taking action. As a result, it is very rare that you will get a court to actually order someone to perform under the conditions of a contract. If you are involved in a contract dispute and want to seek or defend against specific performance or money damages, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. Your consultation is free for up to half an hour!
Introduction
Back when I was in law school, a friend of mine hired a home contractor to do some work on his house. The contractor backed out at the last minute, and the friend contacted me to ask if I knew how to make the contractor do the work. When I explained that my friend would need to hire a new contractor, get the work done, and then sue this contractor for any difference in cost paid, and any loss of use he may have suffered while waiting, my friend was indignant. "I don't want money from the guy," he said, "I just want him to do the work he signed a contract to do. I went through a lot of effort to find this contractor, and I very much want him to be the one to do it." My friend was very upset when I explained that, all that being true, he still couldn't force the contractor to do the work. I recommended that he consider consulting an attorney to make sure I was right, since I was, after all, not a lawyer yet, so I have no idea if he actually did, or how that turned out, but now that I am a practicing attorney, I am more certain than I was then that what I told him was correct.
The fact is, in a breach of contract case, there are two types of remedies that can be awarded - a money judgment or "specific performance." The types are exactly as they sound. A money judgment is a judgment saying that the breaching party owes the other party a certain amount of money. A specific performance order requires the breaching party to perform under the terms of the contract under penalty of contempt.
Specific performance is very rarely awarded, and almost all breach of contract claims end with a money judgment (assuming that a wrongful breach is found to have occurred). In this blog post I will attempt to explain why specific performance is so rarely awarded, and what situations might be those in which a specific performance award is possible.
Law vs. Equity - Judgments vs. Injunctions
You see, there are two general types of court orders - judgments, and injunctions. I'm using those terms very loosely, but that's basically how it breaks down. In general, a judgment is a ruling by a court that one person owes another person a certain amount of money (or that they do not owe any money). An injunction requires a person to do something, or not to do something. A judgment does not order someone to actually pay the money they owe (and post-judgment collections is a whole other blog post for the future), so violating a judgment does not subject you to a contempt of court finding, while violating an injunction does.
All of this used to be somewhat simple to follow because every state and the federal government had two entirely separate court systems to deal with these types of cases. Courts sitting "in equity" would issue injunctions and similar such orders that had to be followed under penalty of contempt. Courts sitting "in law" or "common law courts" would issue money judgments. The court you were in front of was a good determiner of what kind of order you would get. This all got muddled when, decades ago, jurisdictions started abolishing the distinction between the two courts and lumping the courts together (although it's worth noting this didn't happen in Virginia until 2006). Today, there is no separate equity and law court, meaning that in a single lawsuit, you can seek both legal and equitable relief. Many of the distinctions between law and equity, however, especially in terms of what relief you can seek, still exist. Equitable relief is still injunctive, and legal relief is still judgments.
So, how does this relate to contract law? Well, centuries ago a rule developed in the equity courts referred to as "adequacy of remedy at law." The idea is that if you could sue someone in the common law court for the exact same thing you were suing them for in the equity court, and get a money judgment, and if that money judgment is actually paid you would sufficiently be "made whole," then you could not get equitable relief. In other words, if you could sue someone for money damages, then the equity courts were closed to you. Even though the equity courts are gone, this rule is one that still survives. If you can get a judgment that, if paid, would fully make up for what you have lost, then you cannot get an injunction.
So, as you've probably guessed, money damages for a contract come in the form of a judgment, while specific performance comes in the form of an injunction. In other words, in the old system, if you sued for breach of contract in the common law court, you were seeking money damages, and if you sued for breach of contract in the equity court, you were seeking specific performance. As a result, the equity rule of adequacy of the remedy at law applied to specific performance, and still does. If you can get a money judgment that will sufficiently make you whole from the breach of contract, then a court will not order specific performance.
What makes a remedy at law "adequate"?
So, your next question might be, how would a remedy at law be "adequate"? Remember, first of all, that this doctrine assumes that you will be able to collect your judgment, regardless of the likelihood of that actually happening, so the fact that a judgment is not enforceable by contempt does not come into the adequacy calculation. Adequacy basically comes down to a simple question. Can you quantify, with an actual number, the value of what you have lost due to the breach? In other words, are your losses entirely tangible?
Again, uncertainties don't speak to adequacy. You can get estimates, expert witnesses can testify as to long term losses, interest rates, etc. There is a way to quantify almost everything. Differences in quality, time loss, etc. are all quantifiable losses. If there is any way at all to quantify all of your losses, then you have an adequate remedy at law, and you will not be awarded specific performance.
So when isn't a remedy at law "adequate"?
So, you might read the above and think "well, gee, to some degree everything's quantifiable, so why even have a specific performance doctrine?" As you might guess, there must be something "special" about what you are losing due to the breach in order for a remedy at law to be inadequate. For example, maybe you contracted to buy something that was particularly unique. Courts consider tracts of real estate, for example, to always be unique, so if a seller has an inexcusable default in a contract to sell their house, you might be able to get a court order to require the seller to go through with the sale. You will find similar situations with antiques, particular artworks, etc.
Maybe you've contracted for services, and the person you contracted with is the only contractor performing that service within a reasonable distance? Then, the service might be considered unique, since you cannot replace the service, so the loss would not be readily quantified and a specific performance award might be in order.
Marital agreements are usually considered to be enforceable by specific performance as well. This is because when forming the contract, that the person named be the one performing the duties laid out, as opposed to just that those duties get done, is considered to be a central component of the agreement.
Those are just some examples, and there are more, but you should understand that by and large the comment I started this section with is right. A vast majority of damages are quantifiable, and as a result, a vast majority of breaches of contract are only remediable with a money judgment.
Conclusion
When someone breaches a contract with you, it is normal to want them to remedy the breach themselves. The law, however, places a premium on issuing money judgments over issuing injunctive orders which coerce someone into taking action. As a result, it is very rare that you will get a court to actually order someone to perform under the conditions of a contract. If you are involved in a contract dispute and want to seek or defend against specific performance or money damages, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. Your consultation is free for up to half an hour!
Wednesday, September 4, 2013
Ask the Lawyer and FAQ's About the Legal System Part II
As always, please read my disclaimer before reading this post by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia. Finally, please note that at the end of this post, there will be a call for readers to contact me with questions - please feel free to do so.
Introduction
Two weeks ago, I got hit with a nasty case of writer's block, and used that opportunity to do a brief FAQ on this blog. That post turned out to be substantially more popular than I expected it to, and now that this blog is getting something of a readership I would like to actually spend some time providing content that you, the readers, want to see, instead of just whatever I happen to feel like musing about (although there will certainly still be plenty of that).
As a result, this week I'm going to introduce "ask the lawyer." It will be my call for you, my readers, to submit questions to me that you would like me to cover in my blog - either via an FAQ post, or a full post. However, since just that call for action can hardly constitute a whole post, I will also use this opportunity to do Part II of my FAQ. As a result, below are some more of the questions I am frequently asked, and then an explanation of how "ask the lawyer" will work.
Why should my Complaint for Divorce ask for custody when I only want visitation?
A contested divorce case takes a long time to work its way through the court - sometimes up to a year, sometimes even longer. A lot can happen during that time. If you don't ask for custody in your Complaint, and then something comes up where suddenly you need custody, the process of getting it is more complicated. Moreover, asking for custody in your Complaint can provide a bargaining tool when you are attempting to negotiate other matters. It is better if your Complaint seeks too much than if it seeks too little - and this is true for more than just divorces.
Why do you no longer handle custody/visitation cases?
I get asked this a lot. As the "no longer" implies, I did used to handle such cases. In fact, I do still handle some, since I grandfathered in my previous custody/visitation clients when I stopped taking those cases. The brief answer is that when I handled these cases (custody especially), I would spend the two or three weeks leading up to the trial as a complete wreck - emotionally and physically. It affected my home life, and the quality of my work on other cases. After one particularly brutal case, I came away with a complete victory for my client - everything we asked for, and then some. Yet, I felt absolutely no satisfaction. If I was going to put myself through weeks of hell only to get nothing out of even a total victory, I asked myself "what am I really doing?" It was a bit of a personal crisis, but luckily I have an extremely understanding boss whose exact statement to me was "life is too short to do work you don't find professionally satisfying." So, we struck a deal that I could stop taking custody/visitation cases if I expanded my practice areas into other fields that our firm at the time did not have anyone working in. This is why there are things that my firm does which I don't (mainly custody/visitation), and why there are things that I do which the rest of my firm doesn't (mainly landlord/tenant, contract, debt collection and appellate work).
What happens if I don't file an Answer to a Complaint for Divorce within 21 days of being served?
Back in July, I did a post about what happens when you are sued. Since all divorces are conducted in the Circuit Court, the Circuit Court timeline is applicable. But the question becomes, what does being "in default" in a divorce case, where there is not a money judgment being sought in the traditional sense, really mean? Well, the answer actually is, generally, very little.
You cannot obtain a divorce by default. So, if you file a Complaint and get no Answer, you still have go through the process of proving to the court that you have been separated long enough, etc. If you are seeking support, you will still need to establish that you should get support and how much support you should get. It is just easier if you are unopposed. Now, if you are on the other end and you want to prevent that from happening, but you were late, you still have some options. Again, you are never "in default" in a divorce case - however the case can proceed without further notice to you, per a law passed last year. Further, all allegations in the Complaint can be taken as true without you having a right to rebut them, although courts practically never do that.
As long as the divorce has not already been taken all the way to its end and a Final Decree been entered, you or your attorney can file a "Motion for Leave to File Responsive Pleadings Out of Time." This will almost always be granted - allowing you to file an Answer and participate in the case. Be aware, however, that if the case has been pending for a while, you likely will not get a continuance on a final hearing date, and you may have missed your chance to send discovery requests to the other side.
What is "Discovery" anyways?
Discovery is the process by which each side in a civil case gets to make the other side give them information they need in order to prepare their case. Discovery comes primarily in four forms - Interrogatories, Requests for Production, Requests for Admission and Depositions.
Interrogatories are a list of questions that the other side must answer in writing and under oath. Requests for Production require the other side to turn over documents and other things to you that may be relevant to the case. Requests for Admission require the other side to admit that certain statements or true, or deny that they are true. Depositions force the other side to come into your attorney's office (or some other agreed place) and go under oath and answer questions in front of a court reporter.
Interrogatories, Requests for Production and Requests for Admission generally need to be responded to within 21 days of being received. The penalty for being a little late, however, is usually minimal. With Requests for Admission, however, that is playing with fire, since technically even being a day late on those can cause a court to deem all of the statements as "admitted." Further, if you deny a statement in the Requests for Admission, but the statement is later proven to be true, you can be forced to pay the attorneys' fees the other party accrued proving that statement to be true.
Most civil litigation attorneys will tell you that cases are usually won or lost in discovery. Making sure you ask the right questions and answer questions the right way can be key to your entire case.
I've been sued in General District Court and have demanded discovery, but the other side is refusing to cooperate. What can I do?
Nothing, I'm afraid. Virginia law has the notion that courts below the Circuit Court should proceed quickly and smoothly, and that the cases they include do not warrant discovery. Whether this is accurate or not, it is the law we have. So, discovery is only available as a right in the Circuit Court (this includes, by the way, appeals to the Circuit Court from a lower court). In the General District Court, you're stuck with the Summons, anything attached to it, and a Bill of Particulars (or Answer and Grounds of Defense) if pleadings were requested at the return day. In the Juvenile and Domestic Relations District Court you can request the right to conduct discovery (which is almost always granted), but even then you are not permitted to do depositions. So, if you've been sued in the General District Court and want discovery, the best hope you have is to convince the other side that if they send you these things, you might be inclined to settle - then they might do it voluntarily. You cannot, however, force the other side to send you anything.
Ask the Lawyer
So, I think that's a good number of questions to cover today. Now comes what I discussed earlier - ask the lawyer. The way this works is that you send me any question you have that you think I might know the answer to about the legal system or various areas of law. You can do this by sending your questions to me at my e-mail address - sleven@thebaldwinlawfirm.com - or by leaving a comment on this blog post (I may not approve the comment to be visible, but I will still receive it). Then, I will either respond by telling you it is something that I do not know the answer to and an explanation of why, along with, hopefully, some advice on where to go to get an answer, or I will save your question and answer it either with a full blog post or with an FAQ. If I write a post or FAQ in response to an ask the lawyer question, I will indicate I am doing so, and I can give you personal credit if you wish (you need to let me know when you ask the question, along with how detailed you would want the credit to be in terms of your name), and I will try to e-mail you to let you know I have done so (although I cannot promise that I will remember to do this).
This will not be the last time that I do an "ask your lawyer" specific call, although you should consider me open to receiving "ask the lawyer" questions at any time, whether I've called for it in my last blog post or not.
This is not, however, a call for you to ask me about your specific legal case. The statements I give on this blog, as explained in my disclaimer, are not legal advice, and cannot be specific to your case. If you have a question about your specific case, you'll need to set up an initial consultation, which you can do by calling (703)281-0134, or by e-mailing me at sleven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour.
I look forward to receiving your questions!
Introduction
Two weeks ago, I got hit with a nasty case of writer's block, and used that opportunity to do a brief FAQ on this blog. That post turned out to be substantially more popular than I expected it to, and now that this blog is getting something of a readership I would like to actually spend some time providing content that you, the readers, want to see, instead of just whatever I happen to feel like musing about (although there will certainly still be plenty of that).
As a result, this week I'm going to introduce "ask the lawyer." It will be my call for you, my readers, to submit questions to me that you would like me to cover in my blog - either via an FAQ post, or a full post. However, since just that call for action can hardly constitute a whole post, I will also use this opportunity to do Part II of my FAQ. As a result, below are some more of the questions I am frequently asked, and then an explanation of how "ask the lawyer" will work.
Why should my Complaint for Divorce ask for custody when I only want visitation?
A contested divorce case takes a long time to work its way through the court - sometimes up to a year, sometimes even longer. A lot can happen during that time. If you don't ask for custody in your Complaint, and then something comes up where suddenly you need custody, the process of getting it is more complicated. Moreover, asking for custody in your Complaint can provide a bargaining tool when you are attempting to negotiate other matters. It is better if your Complaint seeks too much than if it seeks too little - and this is true for more than just divorces.
Why do you no longer handle custody/visitation cases?
I get asked this a lot. As the "no longer" implies, I did used to handle such cases. In fact, I do still handle some, since I grandfathered in my previous custody/visitation clients when I stopped taking those cases. The brief answer is that when I handled these cases (custody especially), I would spend the two or three weeks leading up to the trial as a complete wreck - emotionally and physically. It affected my home life, and the quality of my work on other cases. After one particularly brutal case, I came away with a complete victory for my client - everything we asked for, and then some. Yet, I felt absolutely no satisfaction. If I was going to put myself through weeks of hell only to get nothing out of even a total victory, I asked myself "what am I really doing?" It was a bit of a personal crisis, but luckily I have an extremely understanding boss whose exact statement to me was "life is too short to do work you don't find professionally satisfying." So, we struck a deal that I could stop taking custody/visitation cases if I expanded my practice areas into other fields that our firm at the time did not have anyone working in. This is why there are things that my firm does which I don't (mainly custody/visitation), and why there are things that I do which the rest of my firm doesn't (mainly landlord/tenant, contract, debt collection and appellate work).
What happens if I don't file an Answer to a Complaint for Divorce within 21 days of being served?
Back in July, I did a post about what happens when you are sued. Since all divorces are conducted in the Circuit Court, the Circuit Court timeline is applicable. But the question becomes, what does being "in default" in a divorce case, where there is not a money judgment being sought in the traditional sense, really mean? Well, the answer actually is, generally, very little.
You cannot obtain a divorce by default. So, if you file a Complaint and get no Answer, you still have go through the process of proving to the court that you have been separated long enough, etc. If you are seeking support, you will still need to establish that you should get support and how much support you should get. It is just easier if you are unopposed. Now, if you are on the other end and you want to prevent that from happening, but you were late, you still have some options. Again, you are never "in default" in a divorce case - however the case can proceed without further notice to you, per a law passed last year. Further, all allegations in the Complaint can be taken as true without you having a right to rebut them, although courts practically never do that.
As long as the divorce has not already been taken all the way to its end and a Final Decree been entered, you or your attorney can file a "Motion for Leave to File Responsive Pleadings Out of Time." This will almost always be granted - allowing you to file an Answer and participate in the case. Be aware, however, that if the case has been pending for a while, you likely will not get a continuance on a final hearing date, and you may have missed your chance to send discovery requests to the other side.
What is "Discovery" anyways?
Discovery is the process by which each side in a civil case gets to make the other side give them information they need in order to prepare their case. Discovery comes primarily in four forms - Interrogatories, Requests for Production, Requests for Admission and Depositions.
Interrogatories are a list of questions that the other side must answer in writing and under oath. Requests for Production require the other side to turn over documents and other things to you that may be relevant to the case. Requests for Admission require the other side to admit that certain statements or true, or deny that they are true. Depositions force the other side to come into your attorney's office (or some other agreed place) and go under oath and answer questions in front of a court reporter.
Interrogatories, Requests for Production and Requests for Admission generally need to be responded to within 21 days of being received. The penalty for being a little late, however, is usually minimal. With Requests for Admission, however, that is playing with fire, since technically even being a day late on those can cause a court to deem all of the statements as "admitted." Further, if you deny a statement in the Requests for Admission, but the statement is later proven to be true, you can be forced to pay the attorneys' fees the other party accrued proving that statement to be true.
Most civil litigation attorneys will tell you that cases are usually won or lost in discovery. Making sure you ask the right questions and answer questions the right way can be key to your entire case.
I've been sued in General District Court and have demanded discovery, but the other side is refusing to cooperate. What can I do?
Nothing, I'm afraid. Virginia law has the notion that courts below the Circuit Court should proceed quickly and smoothly, and that the cases they include do not warrant discovery. Whether this is accurate or not, it is the law we have. So, discovery is only available as a right in the Circuit Court (this includes, by the way, appeals to the Circuit Court from a lower court). In the General District Court, you're stuck with the Summons, anything attached to it, and a Bill of Particulars (or Answer and Grounds of Defense) if pleadings were requested at the return day. In the Juvenile and Domestic Relations District Court you can request the right to conduct discovery (which is almost always granted), but even then you are not permitted to do depositions. So, if you've been sued in the General District Court and want discovery, the best hope you have is to convince the other side that if they send you these things, you might be inclined to settle - then they might do it voluntarily. You cannot, however, force the other side to send you anything.
Ask the Lawyer
So, I think that's a good number of questions to cover today. Now comes what I discussed earlier - ask the lawyer. The way this works is that you send me any question you have that you think I might know the answer to about the legal system or various areas of law. You can do this by sending your questions to me at my e-mail address - sleven@thebaldwinlawfirm.com - or by leaving a comment on this blog post (I may not approve the comment to be visible, but I will still receive it). Then, I will either respond by telling you it is something that I do not know the answer to and an explanation of why, along with, hopefully, some advice on where to go to get an answer, or I will save your question and answer it either with a full blog post or with an FAQ. If I write a post or FAQ in response to an ask the lawyer question, I will indicate I am doing so, and I can give you personal credit if you wish (you need to let me know when you ask the question, along with how detailed you would want the credit to be in terms of your name), and I will try to e-mail you to let you know I have done so (although I cannot promise that I will remember to do this).
This will not be the last time that I do an "ask your lawyer" specific call, although you should consider me open to receiving "ask the lawyer" questions at any time, whether I've called for it in my last blog post or not.
This is not, however, a call for you to ask me about your specific legal case. The statements I give on this blog, as explained in my disclaimer, are not legal advice, and cannot be specific to your case. If you have a question about your specific case, you'll need to set up an initial consultation, which you can do by calling (703)281-0134, or by e-mailing me at sleven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour.
I look forward to receiving your questions!
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