As always, before reading this post please review my disclaimer by following the above link or by clicking on this link. As always, any legal principle discussed apply only to the Commonwealth of Virginia.
Introduction
Lawyers tend to live in a little bit of a fantasy world regarding our clients. Our clients, we like to believe, are "perfect" when it comes to protecting themselves under the law. They update their wills every time there's even the slightest change warranting an update, they are always on top of their finances, and nothing is even let go by for a day.
Of course, this is a fantasy, and reality is that most people who aren't lawyers really don't have time to be obsessing over life's relatively minor legalities. So, let me present you with a scenario we see all the time in family law. John and Suzanne get divorced. Two months later, John and Betty get married. Two months after that, John dies. At the time of John's death, he has not updated his will, or his beneficiary designations. He has a will, life insurance policy, retirement account, etc. that all say "everything goes to Suzanne." Given the divorce, and John's remarriage, we know this was probably not what he wanted to have happen. So, what now?
In today's blog post, I will cover some of the legalities that occur if a divorced spouse dies without having updated legal documents designating his or her ex as his or her beneficiary. The ultimate conclusion will be simple - update your designations! Nonetheless, it is worth understanding the "default," in case you find yourself in a situation beyond your control.
General Rule
The general rule, as laid out by the Code of Virginia, is that your divorce automatically revokes all will designations and beneficiary designations of your ex-spouse. Period, end of story. Instead, the will, life insurance policy, etc. is required to act as though the ex-spouse died before you did. Of course, practice is not that simple. For example, what if the insurance company doesn't know about your divorce and pays the money to your ex-spouse anyways? That is where the rules get tricky.
Wills
Wills are probably the easiest topic in this area. The effect of a divorce on a will is laid out in Va. Code Section 64.2-412. Under that section, as stated in the general rule, the will is now executed as though your ex had pre-deceased you. While this may seem ideal, think about what this really means. What if John's will says "everything goes to Suzanne, but if she dies before me, it goes to my brother, Bob." Well, under the law, now John's estate will go to Bob, not Betty. In real life it's not quite that simple because of something called the "elective share," but I'm not going to get too into estate law here, so just know that if John wanted his whole estate to go to Betty, by not updating his will, his wishes still will not be followed, even though his estate will not go to Suzanne.
Life Insurance, Retirement Accounts, etc.
For life insurance, retirement accounts and other finances that are payable on death to your designated beneficiary, Va. Code Section 20-111.1 applies. That section also enacts the general rule. Specifically, your ex is to be treated as though he or she died before you. There is a big caveat however. It is your responsibility to notify the insurance company, financial service provider, etc., of the divorce. If the company pays out to the ex-spouse because it is not aware of the divorce, Va. Code Section 20-111.1(A) specifically exempts the company from liability for the improper payment. As a result, that money is gone, and is not coming back.
So, it is critical that you inform the company of the divorce. If, however, you are already going through the trouble of informing the company, wouldn't it be worthwhile to just go ahead and change your beneficiary designation? Unless the company restricts the times that you can do so, the amount of time involved is going to be similar, and it will result in much less confusion later.
Alternative Orders
There is an exception to the general rule which is also worth noting. If the order granting the divorce itself states that the will or beneficiary designation will survive the divorce, then it does survive the divorce. Now, it is practically unheard of for a judge to make such an order, so the practical effect of that exception is that it gives you the right, when trying to settle the divorce, to negotiate a result other than the general rule. This is just one more thing to think about when you are trying to find areas in which you can reach a compromise.
A Special Twist: Federal Life Insurance
As an attorney, it's always fun when a case from your local court ends up at the U.S. Supreme Court. In my case, this happened most recently with the Court's 2013 case of Hillman v. Maretta, which started in the Fairfax County Circuit Court with a ruling by Judge Michael Devine, for whom I have a great deal of respect. Now, this relates to our topic, because this case involved an issue that rarely comes up anywhere except in the DC area - what about life insurance provided by the federal government for federal employees?
Federal Employee Group Life Insurance (FEGLI) is a benefit offered to federal employees to get life insurance without a medical exam and while paying a much lower premium than they would if they were to get insurance on their own. Life insurance is not an uncommon benefit offered by large employers, and the federal government wants to compete with large employers for the best employees, so that led to the establishment of FEGLI. However, as the federal government is not a "normal" employer, it had to have authority to create FEGLI, so Congress passed the Federal Employee Group Life Insurance Act (FEGLIA) to establish FEGLI. A key component of FEGLIA is U.S. Code Title 5, Section 8705 which designates the order in which FEGLI is distributed. Title 5, Section 8705(a) states that the first person to whom the money is sent is the "person designated by the employee," and then has a linear list of who goes next if that person pre-deceases the employee.
Well, you might be asking why this all matters? If you remember your middle school civics, however, you might have an idea. Specifically, federal law trumps state law, and while Virginia state law says that the designation becomes invalid, it cannot supersede federal law, and FEGLIA has no provision regarding divorce.
Anticipating this problem, the General Assembly passed Va. Code Section 20-111.1(D) which stated that if 20-111.1(A) is "pre-empted" (meaning does not apply due to a contrary federal law), then the money does go to designated ex-spouse, but then the person who would have gotten the money had 20-111.1(A) applied can sue the ex-spouse for that money.
Hillman v. Maretta dealt with exactly this situation. Warren Hillman designated his wife, Judy Maretta, as his FEGLI beneficiary in 1996. In 1998, Hillman and Maretta divorced. In 2002, Hillman re-married. In 2008, Hillman died, having never updated his FEGLI designation. As a result, Maretta claimed the $120k+ life insurance policy on Hillman, and Jackie Hillman sued Maretta for that amount under Va. Code Section 20-111.1(D). The trial court ruled that while 20-111.1(A) was pre-empted by FEGLIA, 20-111.1(D) was not, so it ruled in favor of Hillman. The Virginia Supreme Court disagreed, and ruled in favor of Maretta, so Hillman appealed to the U.S. Supreme Court. The U.S. Supreme Court also agreed with Maretta, and ruled that Va. 20-111.1(D) conflicts with the purpose of FEGLIA and is therefore pre-empted as well. As a result, Maretta got to keep the money.
This can be confusing because 20-111.1(D) is still on the books, even though we know now it is unenforceable. The key takeaway, though, is that if you are a federal employee, you must change your FEGLI designation. The law will not do it for you.
Conclusion
When we divorce, we often don't think about things like wills and life insurance - but they remain critical pieces of our lives that need to be addressed. One of the first things you should do after a divorce is re-write your will and change your beneficiary designations to prevent later issues. Nonetheless, if you find yourself in a conflict relating to a divorce and death benefits, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Wednesday, April 30, 2014
Thursday, April 24, 2014
Relevant Changes in Virginia Law - 2014 Edition
As always, before reading this post please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the fun parts of being a lawyer is keeping up with changes in the law - be it from new appellate court cases or changes in the law from the General Assembly. It means our work never remains the same. It is my goal in the near-term future to be able to start providing updates to posts I make here when new caselaw comes down that changes something. Nonetheless, legislation is a little easier to deal with.
In Virginia, with rare exceptions, new laws take effect on July 1 of the year in which they were enacted. The legislative session, however, is usually long done by then - giving us a period of time where we know which new laws are coming (so we can prepare for them), but we also know that no more new laws will be created while we prepare. We are at that point this year, as the only legislative work remaining is the budget.
So, there are several laws that will take effect on July 1 of this year that affect, either directly or indirectly, topics on which I have made blog posts in the past. As a result, I will use this post to address some of those changes, including a reference to the blog post(s) that might be altered or affected.
Important Change to VRLTA Inclusion/Exclusion
If you are a regular reader of my blog, you know how important it is in the landlord/tenant context to understand whether or not the Virginia Residential Landlord and Tenant Act (VRLTA) applies to your lease. On July 1, 2014, the VRLTA will have a couple of important changes.
Amongst other things, my May 20, 2013 post about the VRLTA lists the situations in which the VRLTA does or does not apply. The most common situation where the VRLTA does not apply was "occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than ten single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences located in any city or in any county having either the urban county executive form or county manager plan of government, no more than four."
Well, the General Assembly has decided that four or ten is too high a number, and that it makes no sense to have different rules in different parts of the state, when really the only goal of that exclusion is to exclude people who are not "professional" landlords. So, HB 273, which will take effect on July 1, 2014, has changed that exclusion to a much more simple "Occupancy in single-family residences where the owners are natural persons or their estates who own in their own name no more than two single-family residences subject to a rental agreement." So, after July 1, if you rent from someone who has three or more single-family residences anywhere that he or she rents out, then your lease will apply to the VRLTA. Note, however, that this will not change the applicability of the VRLTA to leases entered into before July 1, 2014 due to constitutional contract principles. Those leases will remain covered by the pre-July 1, 2014 rules until they expire.
Changes to VRLTA Security Deposit Rules
You may recall in my post from February 27, 2014 about why the VRLTA really matters that a landlord is required to accrue interest on any security deposit held for more than 13 months. However, you may also recall that I pointed out that this requirement had essentially been meaningless for five years since the way that the interest rate was set had the interest at 0 for that long. Well, the General Assembly has finally given up on this. The same HB 273 mentioned above also terminates the requirement that landlords accrue interest on security deposits under the VRLTA - that change being effective January 1, 2015.
Changes to the Child Support Guidelines
Just last week I posted about how child support works in Virginia. Well, by and large that is not changing. However, there is an often ignored part of the Code that requires a commission to gather every four years and review the Virginia Child Support Guidelines and suggest changes if needed. This is often ignored because the commission has never suggested changes. Until this year. This year, the commission did suggest changes, and they were passed by the General Assembly in HB 933. While there are several important changes made, the only one that covers my blog are changes to the "child support need," the number that gets spit out when you plug in the combined income of the parents. While the changes are not uniform, they are by and large a little lower, meaning child support obligations will come down overall when this law takes effect on July 1, 2014.
Conclusion
The above changes are just a sampling of the kinds of changes we have to deal with every year as attorneys. Based on the above, I have to re-design the leases I do for landlords, change the questions I ask landlords and tenants to determine which laws apply, get a new child support guidelines program, and likely deal with an influx of cases of people seeking to modify their child support. This is yet another reason why internet research can fail you as a potential litigant - you could end up finding an old version of the law - and why you are usually better off with an attorney. If you'd like legal representation in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to 30 minutes!
Introduction
One of the fun parts of being a lawyer is keeping up with changes in the law - be it from new appellate court cases or changes in the law from the General Assembly. It means our work never remains the same. It is my goal in the near-term future to be able to start providing updates to posts I make here when new caselaw comes down that changes something. Nonetheless, legislation is a little easier to deal with.
In Virginia, with rare exceptions, new laws take effect on July 1 of the year in which they were enacted. The legislative session, however, is usually long done by then - giving us a period of time where we know which new laws are coming (so we can prepare for them), but we also know that no more new laws will be created while we prepare. We are at that point this year, as the only legislative work remaining is the budget.
So, there are several laws that will take effect on July 1 of this year that affect, either directly or indirectly, topics on which I have made blog posts in the past. As a result, I will use this post to address some of those changes, including a reference to the blog post(s) that might be altered or affected.
Important Change to VRLTA Inclusion/Exclusion
If you are a regular reader of my blog, you know how important it is in the landlord/tenant context to understand whether or not the Virginia Residential Landlord and Tenant Act (VRLTA) applies to your lease. On July 1, 2014, the VRLTA will have a couple of important changes.
Amongst other things, my May 20, 2013 post about the VRLTA lists the situations in which the VRLTA does or does not apply. The most common situation where the VRLTA does not apply was "occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than ten single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences located in any city or in any county having either the urban county executive form or county manager plan of government, no more than four."
Well, the General Assembly has decided that four or ten is too high a number, and that it makes no sense to have different rules in different parts of the state, when really the only goal of that exclusion is to exclude people who are not "professional" landlords. So, HB 273, which will take effect on July 1, 2014, has changed that exclusion to a much more simple "Occupancy in single-family residences where the owners are natural persons or their estates who own in their own name no more than two single-family residences subject to a rental agreement." So, after July 1, if you rent from someone who has three or more single-family residences anywhere that he or she rents out, then your lease will apply to the VRLTA. Note, however, that this will not change the applicability of the VRLTA to leases entered into before July 1, 2014 due to constitutional contract principles. Those leases will remain covered by the pre-July 1, 2014 rules until they expire.
Changes to VRLTA Security Deposit Rules
You may recall in my post from February 27, 2014 about why the VRLTA really matters that a landlord is required to accrue interest on any security deposit held for more than 13 months. However, you may also recall that I pointed out that this requirement had essentially been meaningless for five years since the way that the interest rate was set had the interest at 0 for that long. Well, the General Assembly has finally given up on this. The same HB 273 mentioned above also terminates the requirement that landlords accrue interest on security deposits under the VRLTA - that change being effective January 1, 2015.
Changes to the Child Support Guidelines
Just last week I posted about how child support works in Virginia. Well, by and large that is not changing. However, there is an often ignored part of the Code that requires a commission to gather every four years and review the Virginia Child Support Guidelines and suggest changes if needed. This is often ignored because the commission has never suggested changes. Until this year. This year, the commission did suggest changes, and they were passed by the General Assembly in HB 933. While there are several important changes made, the only one that covers my blog are changes to the "child support need," the number that gets spit out when you plug in the combined income of the parents. While the changes are not uniform, they are by and large a little lower, meaning child support obligations will come down overall when this law takes effect on July 1, 2014.
Conclusion
The above changes are just a sampling of the kinds of changes we have to deal with every year as attorneys. Based on the above, I have to re-design the leases I do for landlords, change the questions I ask landlords and tenants to determine which laws apply, get a new child support guidelines program, and likely deal with an influx of cases of people seeking to modify their child support. This is yet another reason why internet research can fail you as a potential litigant - you could end up finding an old version of the law - and why you are usually better off with an attorney. If you'd like legal representation in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to 30 minutes!
Thursday, April 17, 2014
Virginia Child Support: Figuring Out How Much to Pay
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
UPDATE: Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law. Please see my blog post of April 24, 2014 for details.
UPDATE (4/27/18): Some of the information contained in the below blog post is outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
In theory, child support should be one of the simplest areas of family law to resolve. This is because Virginia, like every other state in the country, has adopted "guidelines" that set the child support for nearly every child support case the state sees. The guidelines are laid out in painstaking detail in Virginia Code Section 20-108.2. Most attorneys who practice family law, myself included, have a reliable computer program that calculates support for them when they plug in the relevant numbers - there are also many calculators available online, but I've found a good number of them to be plainly inaccurate.
So, again, this process seems simple. Plug in the numbers, numbers get spit out. How many complications can there really be? In today's blog post, I will discuss the issues that go into child support that make it complicated, despite the guidelines. I will also explain how the guidelines are actually calculated, and hopefully provide a more solid understanding of how child support in Virginia works.
The Basic Case
I'm going to start off with a very simple case. In this situation, a couple with two children divorce. The children are 6 and 8, both in school. Both parents work full-time, the father earning $84,000 per year, the mother earning $36,000 per year. The mother has custody of the children. The father's employer provides health insurance that covers the children at no additional cost. The children's school day aligns with the mother's work schedule, so she has no daycare costs.
This is the simplest case there is in child support, because the guidelines here are easy. The father earns $7,000 per month while the mother earns $3,000 per month, providing a combined income of $10,000 per month. If we go to the chart in Section 20-108.2, you will see that a combined income level of $10,000 per month for two children yields a "child support need" of $1,577 per month. Since the father earns 70% of the combined income, he is responsible for 70% of that need, or $1,104 per month. The mother is presumed to pay her share on a daily basis because she has the children, but since the father is not custodian, he is required to pay his share to the mother. Thus, in this case, the father's child support is $1,104 per month.
Complication 1 - Health Insurance and Daycare
So, now let's make some adjustments to the above scenario. The two most common adjustments I see in my work involve health insurance and daycare. So, first, let's say that the health insurance for the children is not free, but that the father instead has to pay an extra $500 per month for their health insurance. Next, let's say that instead of 6 and 8, the children are 3 and 5, so only one is in school, and the mother has to pay $1,000 per month for daycare for the other so she can work.
The law allows both of these things to go into the calculation. The custodial parent can include "work-related child care," which is defined in the Code as the cost the parent must pay for the child to be cared for in order to allow that parent to work (and, with a 2013 change in the law - this can also be care to allow the parent to go to school to get a degree to increase his or her earning capacity). The cost must be reasonable, and the reasonableness of this cost is the basis of many court disputes, but for the purpose of this exercise, we will assume the amount here is reasonable.
So, the health insurance and daycare is considered outside the amount "included" in what the Code views as the needs of the children that are taken into account in setting the guidelines. As a result, both are added to the "child support need" listed above. So, suddenly the "child support need" is now $3,077 per month ($1,577 + $1,500). The father's 70% share, then, is now $2,154 per month. The mother is still presumed to pay her share on her own (and does pay the work related child care). But what of the health insurance, part of that "need" total which the father pays in full? Well, since the father is paying it, and it is now considered part of support, that $500 gets deducted from his support total. As a result, in this scenario, the guidelines now have the father paying $1,654 per month to the mother for support.
Complication 2 - Other Children
Now, let's add another common complication we encounter. Let's say this was the second marriage for both of these parents, and they each have one child from their previous marriages. Let's say the father's child from his previous marriage lives with the father, so he doesn't pay any defined child support for that child. Let's also say that the mother's child from her previous marriage does not live with her, and instead she is ordered to pay that child's father $500 per month in child support.
The Code recognizes that other children change the equation because it affects what you can afford. As a result, you can reduce your income by the amount of "support" you pay for the other child. The mother's child support obligation is known - she pays $500 per month, so that is what is taken out of her income, reducing her income for guidelines purposes to $2,500 per month. The father, however, is not so simple to figure out, since the child lives with him.
Well, the Code says in that case, you use the guideline chart in Section 20-108.2 again, and find out what support the father would be paying if he were the only income earner. So, in our chart, we can see that at $7,000 per month for one child, the child support level is $848 per month, and that is what the father gets to reduce from his income.
So, what does this give us? Well, the mother's income is now $2,500 per month, the father's is $6,152 per month. This is a combined total of $8,652 per month. The chart tells us that a total of $8,650 per month (which is what you'd round to) yields a child support need for two children of $1,478 per month. Add in the $1,500 from health insurance and child care, and you get a total need of $2,978 per month. The father now has 71.1% of the income, so his share is now $2,117 per month, and after you subtract the $500 per month in health insurance, he owes child support of $1,617 per month.
Complication 3 - Self-Employment
The last "common" complication that we see is a situation where one parent is self-employed. In that situation, the Code allows for the self-employed parent to deduct one-half of the self-employment tax from his or her income. So, for our purposes, let's assume the mother is self-employed. The self-employment tax is currently 15.3%, so on $3,000 per month that would be $459, half of which would be $230. So, we can now reduce the mother's income by another $230 per month, leaving her with an income of $2,270.
The combined income thus drops to $8,422 per month, the pre-addition child support need becomes $1,457 per month, which becomes $2,957 after adding in insurance and daycare. The father's share is now 73.1% of income, so his share of the support is now $2,160 per month, meaning he owes child support of $1,660 per month after deducting his health insurance cost.
Complication 4 - Different Custody Arrangements
While the above are not all of the complications that come up with calculating support in a "normal" custody arrangement, they are by far the most common. The other common complication is if you have different custody arrangements. I'm not going to get into the details of those calculations here, since they would warrant a whole other post, but there are two other situations worth noting - split custody and shared custody.
Split custody occurs when each parent has custody of one or more of the children, so neither parent has custody over all of the children. Shared custody occurs when each parent has the children for more than 90 days per year (and yes, the definition of "days" has itself sparked many court battles), so each parent is considered to have custody of the children to some degree. In both of these situations, the Code recognizes that really each parent should be paying the other support to some degree, so the child support total becomes the amount the one who would owe more would owe minus the amount the one who would owe less would owe.
I'm not going to get into the details of how these calculations work today because, as I said, they're so complicated they would warrant their own post, but for illustrative purposes, I'll give you some numbers. We'll go back to the example above, but the very simple numbers - $7,000 per month income for the father, $3,000 per month for the mother, no other changes. In that situation, for split custody, the guidelines yield a support obligation of $710 per month for the father and $304 per month for the mother, yielding a net child support obligation for the father of $406 per month.
Now, same situation, except let's say the mother has the children for 190 days per year, and the father has the children for 175 days per year. In that case, the guidelines yield a support obligation of $804 per month for the father and $318 per month for the mother, yielding a net child support obligation for the father of $487 per month.
Complication 5 - Deviation from the Guidelines
Now, after all of that, there is the remaining fact that the court is not required to follow the guidelines. Now, in my experience, the courts follow the guidelines in somewhere around 90% of cases. Nonetheless, there is a list of factors in Virginia Code Section 20-108.1(B) that, if the court thinks them important enough, can warrant the court deviating from the guidelines, either up or down. Whenever a court deviates, it must first calculate the guidelines, then find that is improper based on one, some, or all of the factors in Section 20-108.1(B), and then calculate a new amount.
The most common deviation I see is for the factor in Section 20-108.1(B)(3) - the court finds that a party is voluntarily under or unemployed, and imputes income to them. The court must still calculate the regular guidelines first, then the court will calculate the guidelines with what it considers the "correct" income number, and will order support on that basis. Nonetheless, all of the factors can come up in various cases.
Conclusion
As you can see from the above, despite the existence of guidelines calculation of child support in Virginia is very complicated. Add to the complications the fact that basically every factor above (income, support for other children, reasonableness of health insurance and daycare costs, self-employment issues, etc.) can be disputed at trial, and you find out why a seemingly simple topic results in so much litigation. If you are trying to resolve your child support case and find yourself just spinning your wheels, do yourself a favor and get an attorney. You can call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment. Our initial consultations are free for up to half an hour!
UPDATE: Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law. Please see my blog post of April 24, 2014 for details.
UPDATE (4/27/18): Some of the information contained in the below blog post is outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
In theory, child support should be one of the simplest areas of family law to resolve. This is because Virginia, like every other state in the country, has adopted "guidelines" that set the child support for nearly every child support case the state sees. The guidelines are laid out in painstaking detail in Virginia Code Section 20-108.2. Most attorneys who practice family law, myself included, have a reliable computer program that calculates support for them when they plug in the relevant numbers - there are also many calculators available online, but I've found a good number of them to be plainly inaccurate.
So, again, this process seems simple. Plug in the numbers, numbers get spit out. How many complications can there really be? In today's blog post, I will discuss the issues that go into child support that make it complicated, despite the guidelines. I will also explain how the guidelines are actually calculated, and hopefully provide a more solid understanding of how child support in Virginia works.
The Basic Case
I'm going to start off with a very simple case. In this situation, a couple with two children divorce. The children are 6 and 8, both in school. Both parents work full-time, the father earning $84,000 per year, the mother earning $36,000 per year. The mother has custody of the children. The father's employer provides health insurance that covers the children at no additional cost. The children's school day aligns with the mother's work schedule, so she has no daycare costs.
This is the simplest case there is in child support, because the guidelines here are easy. The father earns $7,000 per month while the mother earns $3,000 per month, providing a combined income of $10,000 per month. If we go to the chart in Section 20-108.2, you will see that a combined income level of $10,000 per month for two children yields a "child support need" of $1,577 per month. Since the father earns 70% of the combined income, he is responsible for 70% of that need, or $1,104 per month. The mother is presumed to pay her share on a daily basis because she has the children, but since the father is not custodian, he is required to pay his share to the mother. Thus, in this case, the father's child support is $1,104 per month.
Complication 1 - Health Insurance and Daycare
So, now let's make some adjustments to the above scenario. The two most common adjustments I see in my work involve health insurance and daycare. So, first, let's say that the health insurance for the children is not free, but that the father instead has to pay an extra $500 per month for their health insurance. Next, let's say that instead of 6 and 8, the children are 3 and 5, so only one is in school, and the mother has to pay $1,000 per month for daycare for the other so she can work.
The law allows both of these things to go into the calculation. The custodial parent can include "work-related child care," which is defined in the Code as the cost the parent must pay for the child to be cared for in order to allow that parent to work (and, with a 2013 change in the law - this can also be care to allow the parent to go to school to get a degree to increase his or her earning capacity). The cost must be reasonable, and the reasonableness of this cost is the basis of many court disputes, but for the purpose of this exercise, we will assume the amount here is reasonable.
So, the health insurance and daycare is considered outside the amount "included" in what the Code views as the needs of the children that are taken into account in setting the guidelines. As a result, both are added to the "child support need" listed above. So, suddenly the "child support need" is now $3,077 per month ($1,577 + $1,500). The father's 70% share, then, is now $2,154 per month. The mother is still presumed to pay her share on her own (and does pay the work related child care). But what of the health insurance, part of that "need" total which the father pays in full? Well, since the father is paying it, and it is now considered part of support, that $500 gets deducted from his support total. As a result, in this scenario, the guidelines now have the father paying $1,654 per month to the mother for support.
Complication 2 - Other Children
Now, let's add another common complication we encounter. Let's say this was the second marriage for both of these parents, and they each have one child from their previous marriages. Let's say the father's child from his previous marriage lives with the father, so he doesn't pay any defined child support for that child. Let's also say that the mother's child from her previous marriage does not live with her, and instead she is ordered to pay that child's father $500 per month in child support.
The Code recognizes that other children change the equation because it affects what you can afford. As a result, you can reduce your income by the amount of "support" you pay for the other child. The mother's child support obligation is known - she pays $500 per month, so that is what is taken out of her income, reducing her income for guidelines purposes to $2,500 per month. The father, however, is not so simple to figure out, since the child lives with him.
Well, the Code says in that case, you use the guideline chart in Section 20-108.2 again, and find out what support the father would be paying if he were the only income earner. So, in our chart, we can see that at $7,000 per month for one child, the child support level is $848 per month, and that is what the father gets to reduce from his income.
So, what does this give us? Well, the mother's income is now $2,500 per month, the father's is $6,152 per month. This is a combined total of $8,652 per month. The chart tells us that a total of $8,650 per month (which is what you'd round to) yields a child support need for two children of $1,478 per month. Add in the $1,500 from health insurance and child care, and you get a total need of $2,978 per month. The father now has 71.1% of the income, so his share is now $2,117 per month, and after you subtract the $500 per month in health insurance, he owes child support of $1,617 per month.
Complication 3 - Self-Employment
The last "common" complication that we see is a situation where one parent is self-employed. In that situation, the Code allows for the self-employed parent to deduct one-half of the self-employment tax from his or her income. So, for our purposes, let's assume the mother is self-employed. The self-employment tax is currently 15.3%, so on $3,000 per month that would be $459, half of which would be $230. So, we can now reduce the mother's income by another $230 per month, leaving her with an income of $2,270.
The combined income thus drops to $8,422 per month, the pre-addition child support need becomes $1,457 per month, which becomes $2,957 after adding in insurance and daycare. The father's share is now 73.1% of income, so his share of the support is now $2,160 per month, meaning he owes child support of $1,660 per month after deducting his health insurance cost.
Complication 4 - Different Custody Arrangements
While the above are not all of the complications that come up with calculating support in a "normal" custody arrangement, they are by far the most common. The other common complication is if you have different custody arrangements. I'm not going to get into the details of those calculations here, since they would warrant a whole other post, but there are two other situations worth noting - split custody and shared custody.
Split custody occurs when each parent has custody of one or more of the children, so neither parent has custody over all of the children. Shared custody occurs when each parent has the children for more than 90 days per year (and yes, the definition of "days" has itself sparked many court battles), so each parent is considered to have custody of the children to some degree. In both of these situations, the Code recognizes that really each parent should be paying the other support to some degree, so the child support total becomes the amount the one who would owe more would owe minus the amount the one who would owe less would owe.
I'm not going to get into the details of how these calculations work today because, as I said, they're so complicated they would warrant their own post, but for illustrative purposes, I'll give you some numbers. We'll go back to the example above, but the very simple numbers - $7,000 per month income for the father, $3,000 per month for the mother, no other changes. In that situation, for split custody, the guidelines yield a support obligation of $710 per month for the father and $304 per month for the mother, yielding a net child support obligation for the father of $406 per month.
Now, same situation, except let's say the mother has the children for 190 days per year, and the father has the children for 175 days per year. In that case, the guidelines yield a support obligation of $804 per month for the father and $318 per month for the mother, yielding a net child support obligation for the father of $487 per month.
Complication 5 - Deviation from the Guidelines
Now, after all of that, there is the remaining fact that the court is not required to follow the guidelines. Now, in my experience, the courts follow the guidelines in somewhere around 90% of cases. Nonetheless, there is a list of factors in Virginia Code Section 20-108.1(B) that, if the court thinks them important enough, can warrant the court deviating from the guidelines, either up or down. Whenever a court deviates, it must first calculate the guidelines, then find that is improper based on one, some, or all of the factors in Section 20-108.1(B), and then calculate a new amount.
The most common deviation I see is for the factor in Section 20-108.1(B)(3) - the court finds that a party is voluntarily under or unemployed, and imputes income to them. The court must still calculate the regular guidelines first, then the court will calculate the guidelines with what it considers the "correct" income number, and will order support on that basis. Nonetheless, all of the factors can come up in various cases.
Conclusion
As you can see from the above, despite the existence of guidelines calculation of child support in Virginia is very complicated. Add to the complications the fact that basically every factor above (income, support for other children, reasonableness of health insurance and daycare costs, self-employment issues, etc.) can be disputed at trial, and you find out why a seemingly simple topic results in so much litigation. If you are trying to resolve your child support case and find yourself just spinning your wheels, do yourself a favor and get an attorney. You can call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment. Our initial consultations are free for up to half an hour!
Thursday, April 10, 2014
Settling Lawsuits: When Staying Out of Court is the Right Decision
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Last week, I told you that my blog post this week would not come until Friday because I had a trial today. Yet, here I am. Why? Well, this morning the parties in my case reached a short-term settlement and the trial was delayed to July as a result (with a decent possibility of a final settlement by then). As often happens with this blog when I go to court, this experience inspired me to do this post - although I'll admit it's a post I've been toying around with doing in some sense for a while.
You've probably heard that most lawsuits never actually make it to trial - they settle out of court, usually with undisclosed settlement figures. As a result, if you are involved in a court case, especially if both parties have an attorney, there is a decent chance your lawsuit also will ultimately settle. This post will discuss some of the advantages of settlement, and why it may be worthwhile for you to consider settling your case, even if you don't get everything you want.
Reason to Settle: Cost Saving
The first reason, and usually the biggest, to settle is that it usually saves a lot of money. Trials are expensive. Legal fees can run in the tens of thousands of dollars, or more in bigger cases. A settlement cuts the case short, and saves you a substantial amount of money. Even a settlement on the day of trial prevents you from paying for the costs of the trial itself, and then any appeals that may have occurred.
Usually a settlement for less than what you want (if you're a plaintiff) or more than you want to pay (if you're a defendant) is still ultimately going to save you money, even if you were going to win at trial. This is a major factor that pushes people to settlement, and a very valid one.
Reason to Settle: Risk Management
Another reason to settle is risk management. Going into a trial, you frankly never really know what will happen. You may have a strong case, but the wrong judge and/or jury could still end up costing you a victory. A resulting appeal can be costly, and in many cases, even if you're right, your appeal will end up not even considered by the appellate court (see my post on appellate litigation to understand why even a correct appeal might not get heard).
While you never really know what will happen if you step into the courtroom, a settlement is completely under your control. The settlement is one of agreement - both parties lay out what they want to have happen, and they will come away with an enforceable document making it happen. Settlements, then, provide certainty in an otherwise uncertain environment.
Reason to Settle: Flexibility
By law, there are very few things a judge can actually do in a lawsuit. In a suit for money, for example, they can enter a judgment, and that's it. What if you'd be willing to take something else, other than money, to settle the debt you are owed, such as an apology, a particular piece of property, etc.? Well, the court cannot order that, but a settlement can.
One of the great things about settlement is that you can do all sorts of things a court cannot do on its own. Even better, as long as your settlement contract is legally enforceable (so the various rules of contract law do apply to it), you can frequently get your settlement contract enforced as written if it is later violated. For example, if you really do want a formal apology of some sort, that's a fairly unique thing without a reasonable cash value, so you might very well later be able to get a specific performance order where the court requires the person to do it if that person reneges.
Flexibility is one of my personal favorite advantages of a settlement. Courts really are limited in what they can do, while settlements can do almost anything you can imagine.
When is it Too Late to Settle?
While the above are by no means the only reasons to settle, they are the three main ones I encounter. But this question - when is it too late - is one I also encounter a lot. My saying is, "it's never too late to settle." And legally speaking, this is true. In most cases you could go to trial, get a judgment, appeal that judgment, get a final order from the Supreme Court, and then still decide by agreement between the parties to do something completely different.
While that may all be true technically, it is not entirely practical to expect such a thing to occur. Realistically, then, the odds of reaching a settlement fade the closer to the end of trial you get, and disappear almost entirely once the verdict is made. This is true for two reasons. First, if cost is your main reason for settling, the farther along you go, the more sunk costs you have and the fewer costs a settlement will avoid. Second, by the end of trial it is often clear who is likely to win, and then once the verdict is made, it is entirely clear who has won. That party now has a strong disincentive from agreeing to anything different - even if it's not a complete victory, you're going to have a hard time moving that party closer to your position from the judgment they already have in hand.
As a result, in my career I've had a good number of trials settle the morning of trial, but very few after the trial has begun, and only one after a ruling was made. So while it is technically never too late to settle, the longer you wait, the harder it is, so if you want to settle, it's a good idea to get to work on negotiations right away.
Conclusion
Settlements are often a very good alternative to taking a case to trial, and that is a good reason why a vast majority of lawsuits do settle. Nonetheless, you also need to be ready to go to trial if settlements don't come through. If you are involved in a lawsuit you would like to attempt to settle, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Introduction
Last week, I told you that my blog post this week would not come until Friday because I had a trial today. Yet, here I am. Why? Well, this morning the parties in my case reached a short-term settlement and the trial was delayed to July as a result (with a decent possibility of a final settlement by then). As often happens with this blog when I go to court, this experience inspired me to do this post - although I'll admit it's a post I've been toying around with doing in some sense for a while.
You've probably heard that most lawsuits never actually make it to trial - they settle out of court, usually with undisclosed settlement figures. As a result, if you are involved in a court case, especially if both parties have an attorney, there is a decent chance your lawsuit also will ultimately settle. This post will discuss some of the advantages of settlement, and why it may be worthwhile for you to consider settling your case, even if you don't get everything you want.
Reason to Settle: Cost Saving
The first reason, and usually the biggest, to settle is that it usually saves a lot of money. Trials are expensive. Legal fees can run in the tens of thousands of dollars, or more in bigger cases. A settlement cuts the case short, and saves you a substantial amount of money. Even a settlement on the day of trial prevents you from paying for the costs of the trial itself, and then any appeals that may have occurred.
Usually a settlement for less than what you want (if you're a plaintiff) or more than you want to pay (if you're a defendant) is still ultimately going to save you money, even if you were going to win at trial. This is a major factor that pushes people to settlement, and a very valid one.
Reason to Settle: Risk Management
Another reason to settle is risk management. Going into a trial, you frankly never really know what will happen. You may have a strong case, but the wrong judge and/or jury could still end up costing you a victory. A resulting appeal can be costly, and in many cases, even if you're right, your appeal will end up not even considered by the appellate court (see my post on appellate litigation to understand why even a correct appeal might not get heard).
While you never really know what will happen if you step into the courtroom, a settlement is completely under your control. The settlement is one of agreement - both parties lay out what they want to have happen, and they will come away with an enforceable document making it happen. Settlements, then, provide certainty in an otherwise uncertain environment.
Reason to Settle: Flexibility
By law, there are very few things a judge can actually do in a lawsuit. In a suit for money, for example, they can enter a judgment, and that's it. What if you'd be willing to take something else, other than money, to settle the debt you are owed, such as an apology, a particular piece of property, etc.? Well, the court cannot order that, but a settlement can.
One of the great things about settlement is that you can do all sorts of things a court cannot do on its own. Even better, as long as your settlement contract is legally enforceable (so the various rules of contract law do apply to it), you can frequently get your settlement contract enforced as written if it is later violated. For example, if you really do want a formal apology of some sort, that's a fairly unique thing without a reasonable cash value, so you might very well later be able to get a specific performance order where the court requires the person to do it if that person reneges.
Flexibility is one of my personal favorite advantages of a settlement. Courts really are limited in what they can do, while settlements can do almost anything you can imagine.
When is it Too Late to Settle?
While the above are by no means the only reasons to settle, they are the three main ones I encounter. But this question - when is it too late - is one I also encounter a lot. My saying is, "it's never too late to settle." And legally speaking, this is true. In most cases you could go to trial, get a judgment, appeal that judgment, get a final order from the Supreme Court, and then still decide by agreement between the parties to do something completely different.
While that may all be true technically, it is not entirely practical to expect such a thing to occur. Realistically, then, the odds of reaching a settlement fade the closer to the end of trial you get, and disappear almost entirely once the verdict is made. This is true for two reasons. First, if cost is your main reason for settling, the farther along you go, the more sunk costs you have and the fewer costs a settlement will avoid. Second, by the end of trial it is often clear who is likely to win, and then once the verdict is made, it is entirely clear who has won. That party now has a strong disincentive from agreeing to anything different - even if it's not a complete victory, you're going to have a hard time moving that party closer to your position from the judgment they already have in hand.
As a result, in my career I've had a good number of trials settle the morning of trial, but very few after the trial has begun, and only one after a ruling was made. So while it is technically never too late to settle, the longer you wait, the harder it is, so if you want to settle, it's a good idea to get to work on negotiations right away.
Conclusion
Settlements are often a very good alternative to taking a case to trial, and that is a good reason why a vast majority of lawsuits do settle. Nonetheless, you also need to be ready to go to trial if settlements don't come through. If you are involved in a lawsuit you would like to attempt to settle, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Thursday, April 3, 2014
"Case Dismissed on a Technicality": Avoiding the common pitfalls of civil litigation, part I
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Before I begin, a quick programming note. I have a trial next Thursday, which means I won't be able to post on Wednesday or Thursday, my usual posting days. As a result, next week's post probably won't be up until Friday. Sorry for the delay!
Now, have you ever heard of a case being "dismissed on a technicality"? My guess is, you probably have. This is something frequently used to point to problems with our justice system - people are able to escape justice because some technicality unrelated to the merits of the case caused them to get away. Few people actually investigate the technicalities themselves, and if they did, they might discover many of those technicalities exist for a very good reason.
Today, I'm going to cover some of the common "technicalities" in civil litigation, and how you can avoid letting your case become victim to one. There are far too many to cover in one blog post, which is why I labeled this post "part I," I expect to do more in the future.
Why We Have "Technicalities"
The entire purpose of a trial in our system is to allow a judge and/or jury to have their best chance of getting to the actual, relevant truth of a case. As a result, we have many rules designed around the idea of preventing surprise. While surprises in the courtroom may make for good, dramatic television, it usually prevents the court from actually reaching the truth. If you are surprised by something the other side does, you likely have not prepared a response to it. If there is a response you could have prepared, this surprise has now deprived the court of your response, and as a result, of an element of the truth.
We also have many rules designed to prevent unfairness at trial. Unfairness at trial also frequently hinders the court from reaching the truth in one way or another, be it by presenting unreliable evidence that cannot be properly rebutted, forcing a person to go to court who should not have to, providing other obstacles to one party or another that should not be there, etc.
In my experience, the vast majority of the time that a case is "dismissed on a technicality," that technicality is that one party or another had failed to follow the rules regarding surprise or unfairness, meaning that had the case actually gone to trial, that party would have an unfair advantage and prevent the court from having its best chance to reach the truth. Even if such violations are unintentional, their effect, left unresolved, could be devastating on the course of justice. As a result, since the error is their fault (even if not their intentional doing), they are the party that suffers the consequences.
In today's post, I plan to cover just a few of these rules, and I hope to cover a few more in the future.
Witness and Exhibit Lists
Many courts when a trial is scheduled issue what is called a "scheduling order." That order requires you to provide, amongst other things, a list of witnesses and exhibits to your opponent a certain amount of time prior to trial (usually two to three weeks). If you have not listed a person or an exhibit on your list, you can't call that witness, or present that evidence, period. These lists are important so that each party can understand what the other will be presenting at trial so that they can be sure that the full version is heard by the court. Many cases that are dismissed prior to trial are cases where one party failed to produce the list at all. As a result, it is critical that if you are involved in civil litigation, you meet your witness and exhibit list exchange deadline.
It is worth noting, however, that witnesses and exhibits that have the purpose of "rebuttal or impeachment" are not required to be on these lists. The idea behind the rebuttal exclusion is that you may not know what you need to rebut the other side until you get their list - as a result, since your list is likely due at the same time, any witnesses or exhibits that solely rebut the other side can be left off your list since you might not be aware of them yet. Impeachment is the act of challenging the credibility of a witness. Evidence presented for the purpose of impeachment is not supposed to be considered by the court as evidence relating to the case itself - it is only to be considered evidence of the witness's lack of credibility. Since impeachment challenges a witness's credibility, the impeachment evidence usually needs to be a surprise in order to be effective. This is one case where surprise actually aids the pursuit of the truth, and as such, is allowed.
Failure to State a Claim
The number one cause, in my experience, of cases being dismissed is "failure to state a claim." The motion to dismiss a case on that basis in Virginia is known as a "demurrer." Basically, a demurrer states that if everything stated in the plaintiff's Complaint is true, they still have not stated enough to be entitled to relief. In other words, if you sue someone and your entire Complaint is "Bill is a jerk," you have not stated a claim since "being a jerk" is not something you can sue someone for.
In order to properly state a claim, you must lay out in your Complaint a series of events that, if later proven true, would entitle you to relief (and also state what form of relief you are entitled to). You must state specific facts in your Complaint, not just conclusions. For example, a Complaint stating "Plaintiff signed a contract with defendant, which defendant has now breached," does not sufficiently state a claim for breach of contract. However, "Plaintiff signed a contract with defendant wherein plaintiff would pay defendant $10,000 to replace the roof on plaintiff's house, plaintiff did pay defendant the $10,000, the defendant has never replaced the roof and the time for doing so in the contract is now passed, as such the defendant has breached the contract," does state a claim. The second example lays out specific, potentially verifiable facts that, if all true, would support a claim for breach of contract, while the first just states a conclusion.
The idea behind this rule should be fairly obvious - it is one of fairness. It is not fair to ask a defendant to defend against a lawsuit where he does not actually know what he is defending against! The first example above only tells the defendant he has been accused of breach of contract. It does not say how he supposedly breached the contract, and as a result, he cannot know from that statement if he actually did, and he cannot prepare a proper defense.
So, the way to prevent falling into this trap is fairly simple. Make sure you are claiming something that actually allows you to recover under law, and that you state enough factual allegations in your Complaint that if that's the entirety of what you prove, the judge would say that is enough to win your case.
Suing in the Wrong Place
My last topic for today is the issue of filing suit in the wrong place, also known as "venue." When you file a lawsuit, there are a series of places where you can properly file it, and places you cannot properly file it. While there are some exceptions depending on the type of case, it is virtually always ok to file a lawsuit in the home county or city of the defendant. On the other hand, it is frequently not ok to file a lawsuit in the home county or city of the plaintiff if that home county or city is different from the home county or city of the defendant.
The idea behind this rule is that if you live 500 miles away from the defendant, it is not really fair to drag him to court near you. You are the one choosing to go to court as the plaintiff, it should be on you to suffer the inconvenience. Now, there are all kinds of exceptions to this rule, and only an attorney is going to be able to tell you if your case fits into those exceptions, but if you want to proceed without an attorney, your best bet is to file in the home city or county of the defendant - the exceptions to that being ok are very few.
It is worth noting, however, that in Virginia, venue is not what we call a "jurisdictional" matter. In other words, if you do file in the wrong city or county, it's only an issue if the other side objects, otherwise it will go forward. So, the closer you live to the home city or county of the defendant, the less likely they are to object (but also the less inconvenient it would be for you to file there, so why take the chance?). Nonetheless, by and large, unless you know the venue laws well or you have an attorney who says otherwise, my strong recommendation is to file in the home city or county of the defendant.
Conclusion
Civil litigation is fraught with pitfalls that can lead to early dismissal of your case. Avoiding those pitfalls can be challenging, and the best way to do it is to have an attorney. If you are in need of an attorney to review or conduct your civil litigation, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with my office. Our initial consultations are free for up to half an hour!
Introduction
Before I begin, a quick programming note. I have a trial next Thursday, which means I won't be able to post on Wednesday or Thursday, my usual posting days. As a result, next week's post probably won't be up until Friday. Sorry for the delay!
Now, have you ever heard of a case being "dismissed on a technicality"? My guess is, you probably have. This is something frequently used to point to problems with our justice system - people are able to escape justice because some technicality unrelated to the merits of the case caused them to get away. Few people actually investigate the technicalities themselves, and if they did, they might discover many of those technicalities exist for a very good reason.
Today, I'm going to cover some of the common "technicalities" in civil litigation, and how you can avoid letting your case become victim to one. There are far too many to cover in one blog post, which is why I labeled this post "part I," I expect to do more in the future.
Why We Have "Technicalities"
The entire purpose of a trial in our system is to allow a judge and/or jury to have their best chance of getting to the actual, relevant truth of a case. As a result, we have many rules designed around the idea of preventing surprise. While surprises in the courtroom may make for good, dramatic television, it usually prevents the court from actually reaching the truth. If you are surprised by something the other side does, you likely have not prepared a response to it. If there is a response you could have prepared, this surprise has now deprived the court of your response, and as a result, of an element of the truth.
We also have many rules designed to prevent unfairness at trial. Unfairness at trial also frequently hinders the court from reaching the truth in one way or another, be it by presenting unreliable evidence that cannot be properly rebutted, forcing a person to go to court who should not have to, providing other obstacles to one party or another that should not be there, etc.
In my experience, the vast majority of the time that a case is "dismissed on a technicality," that technicality is that one party or another had failed to follow the rules regarding surprise or unfairness, meaning that had the case actually gone to trial, that party would have an unfair advantage and prevent the court from having its best chance to reach the truth. Even if such violations are unintentional, their effect, left unresolved, could be devastating on the course of justice. As a result, since the error is their fault (even if not their intentional doing), they are the party that suffers the consequences.
In today's post, I plan to cover just a few of these rules, and I hope to cover a few more in the future.
Witness and Exhibit Lists
Many courts when a trial is scheduled issue what is called a "scheduling order." That order requires you to provide, amongst other things, a list of witnesses and exhibits to your opponent a certain amount of time prior to trial (usually two to three weeks). If you have not listed a person or an exhibit on your list, you can't call that witness, or present that evidence, period. These lists are important so that each party can understand what the other will be presenting at trial so that they can be sure that the full version is heard by the court. Many cases that are dismissed prior to trial are cases where one party failed to produce the list at all. As a result, it is critical that if you are involved in civil litigation, you meet your witness and exhibit list exchange deadline.
It is worth noting, however, that witnesses and exhibits that have the purpose of "rebuttal or impeachment" are not required to be on these lists. The idea behind the rebuttal exclusion is that you may not know what you need to rebut the other side until you get their list - as a result, since your list is likely due at the same time, any witnesses or exhibits that solely rebut the other side can be left off your list since you might not be aware of them yet. Impeachment is the act of challenging the credibility of a witness. Evidence presented for the purpose of impeachment is not supposed to be considered by the court as evidence relating to the case itself - it is only to be considered evidence of the witness's lack of credibility. Since impeachment challenges a witness's credibility, the impeachment evidence usually needs to be a surprise in order to be effective. This is one case where surprise actually aids the pursuit of the truth, and as such, is allowed.
Failure to State a Claim
The number one cause, in my experience, of cases being dismissed is "failure to state a claim." The motion to dismiss a case on that basis in Virginia is known as a "demurrer." Basically, a demurrer states that if everything stated in the plaintiff's Complaint is true, they still have not stated enough to be entitled to relief. In other words, if you sue someone and your entire Complaint is "Bill is a jerk," you have not stated a claim since "being a jerk" is not something you can sue someone for.
In order to properly state a claim, you must lay out in your Complaint a series of events that, if later proven true, would entitle you to relief (and also state what form of relief you are entitled to). You must state specific facts in your Complaint, not just conclusions. For example, a Complaint stating "Plaintiff signed a contract with defendant, which defendant has now breached," does not sufficiently state a claim for breach of contract. However, "Plaintiff signed a contract with defendant wherein plaintiff would pay defendant $10,000 to replace the roof on plaintiff's house, plaintiff did pay defendant the $10,000, the defendant has never replaced the roof and the time for doing so in the contract is now passed, as such the defendant has breached the contract," does state a claim. The second example lays out specific, potentially verifiable facts that, if all true, would support a claim for breach of contract, while the first just states a conclusion.
The idea behind this rule should be fairly obvious - it is one of fairness. It is not fair to ask a defendant to defend against a lawsuit where he does not actually know what he is defending against! The first example above only tells the defendant he has been accused of breach of contract. It does not say how he supposedly breached the contract, and as a result, he cannot know from that statement if he actually did, and he cannot prepare a proper defense.
So, the way to prevent falling into this trap is fairly simple. Make sure you are claiming something that actually allows you to recover under law, and that you state enough factual allegations in your Complaint that if that's the entirety of what you prove, the judge would say that is enough to win your case.
Suing in the Wrong Place
My last topic for today is the issue of filing suit in the wrong place, also known as "venue." When you file a lawsuit, there are a series of places where you can properly file it, and places you cannot properly file it. While there are some exceptions depending on the type of case, it is virtually always ok to file a lawsuit in the home county or city of the defendant. On the other hand, it is frequently not ok to file a lawsuit in the home county or city of the plaintiff if that home county or city is different from the home county or city of the defendant.
The idea behind this rule is that if you live 500 miles away from the defendant, it is not really fair to drag him to court near you. You are the one choosing to go to court as the plaintiff, it should be on you to suffer the inconvenience. Now, there are all kinds of exceptions to this rule, and only an attorney is going to be able to tell you if your case fits into those exceptions, but if you want to proceed without an attorney, your best bet is to file in the home city or county of the defendant - the exceptions to that being ok are very few.
It is worth noting, however, that in Virginia, venue is not what we call a "jurisdictional" matter. In other words, if you do file in the wrong city or county, it's only an issue if the other side objects, otherwise it will go forward. So, the closer you live to the home city or county of the defendant, the less likely they are to object (but also the less inconvenient it would be for you to file there, so why take the chance?). Nonetheless, by and large, unless you know the venue laws well or you have an attorney who says otherwise, my strong recommendation is to file in the home city or county of the defendant.
Conclusion
Civil litigation is fraught with pitfalls that can lead to early dismissal of your case. Avoiding those pitfalls can be challenging, and the best way to do it is to have an attorney. If you are in need of an attorney to review or conduct your civil litigation, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with my office. Our initial consultations are free for up to half an hour!
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