Tuesday, July 29, 2014

Stop Saying Half of Marriages End in Divorce!

So, it's Tuesday, and that usually means a "Classic" blog post (on weeks when I get the chance to do one).  However, today I got struck by one of my pet peeves that I had to get off my chest, and since it relates directly to one of the areas of law in which I practice (family law), I thought a blog post might be a good way to do that.  If you're wondering what that pet peeve is, the title says it all - that people keep repeating the same old line that half of marriages end in divorce.  It needs to stop, and if this blog post gets even one person to stop repeating this line, I will consider it a success.

There are three big reasons why I think this saying needs to go away:

1 - It is actually likely that the 50% number has never been true.

2 - Divorce rates have steadily decreased over the past twenty years, yet the magical "50%" number somehow stays the same - math says this isn't possible.

3 - This number, by artificially inflating our view of the frequency of divorce, downplays the often very serious reasons why many marriages fall apart, leading to grossly unfair assumptions about people who have been through divorce.

So, let me tackle each of the three reasons for a moment.  First up is my point that the 50% number has likely never been true.

So, divorce rates are very hard to calculate because marriage by definition can last a long time and end in divorce, last a short time and end in death, and many other variables come into play.  As a result, guessing the divorce rate is a very imprecise science.  You can also look at it two ways - do you want to say what percentage of marriages entered on a certain date ended in divorce?  If so, there are marriages still going on from that date that might end in divorce, so your number will undershoot.  Moreover, marriages from the past are unlikely to tell you about the likelihood of success of marriages today.  Do you want to count how many adults have been married and divorced?  If so, a good percentage of them are re-married in successful marriages, so you will undercount the number of marriages involved and get an artificially high divorce rate.

The end result of all of this is that the divorce rate is hard to calculate to begin with.  So, with that already in mind, where did this 50% number come from?  The fact is, no one really knows, but there's a good guess.  A series of articles came out in 1979, 1980 and 1981 (yes, that long ago) claiming that there was a 50% divorce rate due to a ridiculous misreading of facts.  For example, in 1981, there were 2.4 million marriages but 1.2 million divorces - thus, the articles concluded that half of marriages ended in divorce.  However, almost none of those divorces were from marriages that started that year, and there were 54 million marriages already in existence prior to 1981.

So, in other words, the 50% number was flawed from the start, there has never been a 50% divorce rate in this country.

Now, on to my second point, that the divorce rate has been dropping.  Since interest has grown in doing real calculations, as opposed to the hysteria mentioned above, it has been widely accepted that the best measure is the second one I mentioned above - find what percentage of adults who have ever been married have also been divorced.  Yes, this will miss re-marriages that are successful, but it will also miss re-marriages that are unsuccessful, so the belief is that the number, while imperfect, is amongst the better indicators that we have.  So, with that in mind, what is the divorce rate (or our best guess of it) and how has it changed?

Well, 2009 census numbers tell us that somewhere around 35% of adults who have ever been married have ever been divorced - down from a high of 40% in 1996.  So, our current best estimate of divorce rate is actually around 35%.

We can also look at an alternative measure, however, in that the census does release numbers also showing what percentage of marriages make it to certain anniversaries.  Remember, however, that this number will dramatically overstate the divorce rate because marriages ending in death of one spouse also will not have made it to that anniversary.  So, about 55% of marriages entered into between 1960 and 1964 made it to their 40th anniversary (this study was done in 2009 of data that was a bit older, thus why we are talking 40th anniversary, not 50th), about 53% of marriages entered into between 1965 and 1969 made it to their 35th anniversary, about 53% of marriages entered into between 1970 and 1974 made it to their 30th anniversary, about 54% of marriages entered into between 1975 and 1979 made it to their 25th anniversary, about 58% of marriages entered into between 1980 and 1984 made it to their 20th anniversary, about 66% of marriages entered into between 1985 and 1989 made it to their 15th anniversary, about 76% of marriages entered into between 1990 and 1994 made it to their 10th anniversary, and about 89% of marriages entered into between 1995 and 1999 made it to their 5th anniversary.

So, we can see a couple of things from those numbers.  First, the age groups show us an increase in divorce rates in the 70's, followed by a decrease.  Second, some of the later groups are not too reliable, since they still have plenty of time to get divorced (in my experience, most divorces happen after the 5th anniversary but before the 15th anniversary - and census numbers back me up on that, showing the average age of a marriage at divorce to be 8 years - but of course I do see plenty outside that range).  Third, however, every single group still had a majority of marriages together at the time of the study.  That means not a one could have had a divorce rate of 50%, especially when you consider that a good percentage of these marriages (especially the older ones) likely ended in death, not divorce.

In short, it is clear now that if there ever was a 50% divorce rate (there almost definitely never was, but if), that's certainly not true now.  So, you have no reason to look at a couple and conclude they have a 50% chance of not making it - you'd be much better served looking at them and thinking there's about a two-thirds chance they will make it.

Now, my final point was that this false statistic is actually harmful.  Because of the field of law I practice, I often see the stigma people face associated with divorce - even though the vast majority of cases I handle are ones where a divorce is clearly necessary.

Nonetheless, we all know stories of people who rushed to a divorce over something small and stupid.  Combine that with the notion that half of marriages end in divorce and our own inherent knowledge that it can't really be that half of all marriages have severe enough problems to warrant divorce, then we reach a culture that concludes that most divorces are just people being too lazy to fix their problems.  This further creates a culture that stigmatizes those who have been divorced, without good reason to do so.

I firmly believe that if we put the 50% number to bed, we can grapple with the fact that, in my opinion, most divorces are warranted.  Most come after the couple tried very hard to solve their problems first.  Many, in fact, come much later than they should have, precisely because the couple tried so hard to make it work.

I am happily married, and because I know the facts and the numbers, I expect to stay married to the same woman for the rest of our lives.  Nonetheless, I refuse to belittle and demean those whose marriages do not work out, who need to get on with their lives, and who make the often gut-wrenching, personally devastating choice to get a divorce.  If we can finally get this 50% number out of our vernacular, I would hope that would mean many more people would be ready to join me in refusing to think less of those whose marriages just didn't work.

Thursday, July 24, 2014

No Post This Week

Hi all.  Sorry that I will not be able to make a post this week.  An unanticipated crisis at the office is not giving me the time I need to put together a post.  I started writing one and immediately realized it would not be up to a quality I would be comfortable with due to my time constraints, so stay tuned next week!

Thursday, July 17, 2014

Re-negotiating Contracts in Virginia: When Things Don't Go as Planned

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

Introduction

When we sign contracts, usually we intend to obey them, but the fundamental problem with contracts is that we do not always know what the future holds.  Sometimes events beyond our control stop us from meeting our contractual obligations, sometimes a contract proves a good idea in theory but not in practice, and sometimes a contract just becomes outdated.  Whatever the reason, sometimes it becomes unreasonable or impossible for you to obey a contract you signed.  Rather than just breaching the contract and waiting to be sued, however, you have another avenue available - attempt to renegotiate the contract.

In today's blog post, I'll cover some of the basic pitfalls and advantages surrounding renegotiation of contracts.

The Defaults Have Changed

Perhaps it is obvious, but the reality is renegotiating a contract is not the same as negotiating an initial contract.  Perhaps the biggest difference is that the default arrangement (what occurs without an agreement) is different.  Initially, if talks break down, there's no relationship developed, and each party can go on their way.  In a renegotiation, if talks break down, then the original contract is still in force.  This tends to cause the party wanting the renegotiation to be at a bit of a disadvantage - you have to convince the other party that a new contract is better for them than the old contract, not just better for you.

In many cases, however, this is not as hard as it may seem.  Litigation is expensive, and collecting judgments takes a great deal of time and effort (see my blog post on collecting judgments for more on that).  Worse yet, if one of the issues is that you are becoming insolvent, the other party knows you could always declare bankruptcy, and they'd be stuck with nothing.  So you can overcome this disadvantage, but it's important you know at the outset that you are at an inherent disadvantage.

The Rules for Determining if a Contract Exists May Have Changed

You probably know that there are two types of contracts:  written and oral.  There is actually a third type as well, an implied in fact contract (where there was never an express agreement between the parties in writing or orally, but the conduct of both parties indicates that they both understood a contract to exist [or, maybe one party made an offer, and the other, instead of accepting the offer, acted in a manner to indicate he had accepted the offer]).  Normally, all three types of contracts are fully valid and enforceable by a court so long as you can prove that the contract exists (and your suit was filed within the relevant statute of limitations).

Many written contracts, however, especially more complicated ones, have modification clauses.  These modification clauses lay out the rules for how that contract can be modified.  A typical modification clause will say that the modification "must be in writing signed by the party against whom enforcement is sought."  This means an express oral agreement, or an implied in fact agreement, which changes the original contract is automatically invalid.  Instead, the party against whom you are trying to prove the original contract was changed must have signed a written modification.

Some modification clauses go even further and require that it "must be in writing signed by all parties."  In those cases, even a writing signed by the other party is insufficient.  Some go even further and say "must be in writing signed by all parties under the same formality as this agreement."  So, if you have that and the original contract required all parties to sign in front of a notary, the modification is not valid unless all parties sign it, too, in front of a notary.

Your modification clause (if there is one) is very important to know when you renegotiate a contract.  You need to make sure it is followed, otherwise all your hard work to renegotiate may be for nothing.

Offering Concessions

The reality is, if you want to renegotiate a contract, you need to be prepared to make some serious concessions, especially if the other party does not really want a renegotiated contract.  So, if your problem is that you cannot pay, for example, then you probably need to give up some of what you are paying for.  A common renegotiation I see in the landlord/tenant context occurs when a tenant can no longer afford rent.  Rather than go through the cost of litigation, if you have a cooperative tenant, it can be quite beneficial to renegotiate that tenant's lease such that the tenant is paying what he or she can afford (so you aren't getting nothing), while agreeing to allow you to terminate the lease pretty much immediately upon finding a new tenant.  This is an especially popular approach to disputes in the commercial landlord/tenant field.

Conclusion

When a contract no longer becomes practical or possible to follow, renegotiation is usually a better option than a straight breach.  You benefit from avoiding the stress of being sued while the other party benefits from avoiding the hassle.  You just have to accept that the other party always has the right to say no.  If you are involved in a contract that you cannot continue to obey and want to attempt to renegotiate it, 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 half an hour!

Tuesday, July 15, 2014

Classic Law is Your Friend: The Law of Living with your Parents, Boyfriend or Girlfriend in Virginia

Today's Classic Blog Posts discuss the legal rights and responsibilities of both "landlords" and "tenants" when someone lives in someone else's house by invitation (be it a grown child living with his parents, an unmarried couple living in a house in only one person's name, etc.).  It was originally posted on July 25, 2013 and titled "When Living With Your Parents Goes Bad - Tenancies at Will and the Law."

Where I felt it needed, I have added a few lines here and there.  Additions that were not in the original blog post will be in brackets ([]).

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

Introduction

Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents.  The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.

Once you turn 18, you no longer have an inherent "right" to live in your parents' house.  However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back.  This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."

Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies.  As I stated in that post, any tenancy has a lease, even if you don't know it.  In most cases, when living with your parents, the lease is neither oral nor written, but rather implied.  In other words - you get to live there as long as your parents don't decide otherwise.  It's important to note, however, that this situation does not just come up between parents and children.  If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.

What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities.  This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.

What Is a Tenancy at Will?

Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent."  So clearly Virginia law recognizes such a thing, and it is governed by the Common Law.  In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will."  Much like "employment at will," a tenancy at will is a tenancy which the landlord  may terminate at any time, for any reason.

So, if you live with your parents and don't pay rent, you are a tenant at will.  The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent.  The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore."  Once that happens, the "lease" is terminated and the tenant must move out.

Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right?  The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave?  Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help."  As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence.  This rule is just as applicable to a tenancy at will as it is to any other residential tenancy.  As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc.  The landlord must get a proper eviction.

How to Evict a Tenant at Will

The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated.  You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon.  Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint.  That would be a little extreme, but that's your right as a landlord in a tenancy at will.

From there, the case would proceed as any Unlawful Detainer would.  Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict.  Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on.  If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.  [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime.  For more on that process, you can read my post about protective orders.]

What If I Start Paying Rent?

Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent.  However, an offer to the "landlord" to pay rent is only that - an offer.  They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will.  If, however, they do accept that offer, then the change in your situation depends on the frequency of payments.  If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice).  However, you also now have the responsibilities of a paying renter.  If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.

Can I Do Chores Around the House and Call it Rent?

Now we get into a trickier area.  Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house.  However, this is very, very difficult to prove.  First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time.  Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might.  There is an exception, though, to the strict rules regarding "in kind" rent.  If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores.  However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.

Conclusion

Tenancies at will are a very common tenancy, especially today.  Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on.  These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many.  If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  The consultation is free for up to half an hour!

Thursday, July 10, 2014

When a Virginia attorney misbehaves: Reporting attorneys to the Bar

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

Introduction

I have written before about my opinion that most attorneys are ethical, honest people, despite the reputation to the contrary.  Nonetheless, as in any profession, there are always bad apples.  Lawyers have a very extensive system set up to root out the bad apples, but it only works when those who become aware of a lawyer's misbehavior are ready to speak up.  In the right circumstances, a misbehaving attorney can be reprimanded (privately or publicly), suspended, or even disbarred, meaning that attorney likely can never practice law again.  In light of the role that "victims" or other witnesses play in attorney discipline, it is important that everyone knows how to spot an unethical attorney, and what to do if you learn of one.  This blog post will cover some of the basics.

How to Tell if an Attorney is Acting Unethically

The biggest issue preventing most people from recognizing if an attorney is acting improperly is the difficulty of distinguishing between behavior that seems wrong to you, but is actually just the attorney zealously advocating for his client, and behavior that actually violates the Rules of Professional Conduct.  Obviously, the easiest way to tell if a lawyer is acting unethically would be for you to learn the entire Rules of Professional Conduct, but that's probably unrealistic for most of you.  The next best thing, then, would be if you see a lawyer do something you think might be improper, then go to the link I just provided and check the rules.

That being said, there are some fairly basic rules you should know regardless.  These are the rules I see violated most often:
  • Competence - if a lawyer is not competent in an area of law, and cannot reasonably become competent in a short period of time, he should not take your case in that area
  • Communication with client - a lawyer should keep his client reasonably updated on the status of a case, and respond to requests for information with a reasonable level of promptness; a lawyer must inform his client of all settlement offers received
  • Fees - a lawyer must charge only reasonable fees and the fees must accurately reflect the amount of work done
  • Privilege - a lawyer must not violate attorney-client privilege except where allowed (or required) by law
  • Conflicts - a lawyer must inform his client of all potential conflicts of interest and receive his client's express approval to continue representation (sometimes even then the lawyer must not continue the representation); this rule also applies to some degree to former clients and former potential clients
  • Frivolity - a lawyer may not bring a claim or defense he knows is frivolous (note that a claim brought despite clear, controlling contrary case law may not be frivolous if the lawyer is seeking to overturn that case law)
  • Honesty - a lawyer may not knowingly make a false statement to anyone in the course of his representation of his client; a lawyer may not present to a court evidence that the lawyer knows to be false, even if doing so does not require the lawyer himself to lie; if a lawyer knows that a witness is committing perjury, the lawyer must take all reasonable action to prevent the perjury from continuing, even if that witness is the lawyer's own client
  • Witness/evidence tampering - a lawyer must not destroy or assist in the destruction of evidence; a lawyer must not advise a non-party witness not to appear at a hearing or take other action to discourage that witness from appearing
  • Ex Parte Communication - a lawyer may not communicate with a juror except as permitted by law; a lawyer may not communicate orally with a judge outside open court about the substance of a case without opposing counsel being present (or having had an opportunity to be present); a lawyer may not communicate in writing with a judge about the substance of a case without sending a copy of such communication to opposing counsel
  • Witness - a lawyer may not take a case in which he reasonably believes he will be a necessary, substantive witness
  • Communication with opposing parties - a lawyer may not communicate with an opposing party about the matter at issue if that party is represented by an attorney unless the other attorney has expressly authorized the communication; a lawyer may communicate with an opposing party who is not represented, but that lawyer must make clear that he is not "disinterested" and that lawyer cannot give any advice other than advice to hire an attorney
  • Safeguarding property - a lawyer may not take for himself any money in a client's trust account for any purpose other than payment of that client's bill owed properly to the lawyer
  • Criminal conduct - a lawyer cannot commit any crime (while "on the clock" or "off the clock") that reflects poorly on the lawyer's honesty, trustworthiness or fitness to practice law; if a lawyer sees a judge violating the law, the lawyer cannot assist the judge in doing so
  • Advertising - any written legal advertisement sent to directly to anyone other than a former client must have the words "ATTORNEY ADVERTISING MATERIAL" on the front of the envelope; all statements in advertising must be true and not misleading (which excludes nearly all subjective statements); advertisements referring to specific case results must include certain disclaimers about the unreliability of using such case results to pick a lawyer; a lawyer must not continue to solicit business from someone who has stated a request to no longer be solicited
So, those are the big ones.  There are, of course, many more rules, but if you know these, you'll catch the vast majority of unethical attorneys.

Ok, so then what?

So, once you see what you think is an ethics violation, you need to report it to the Virginia State Bar.  First, gather as much information as you can about the attorney (most importantly - name, office address, and, if possible, State Bar number).  Then, go to the Virginia State Bar home page (http://www.vsb.org), and at the top under "professional regulation" scroll down to "how to file a misconduct inquiry about a lawyer" then click on the "inquiry form."  You can also get to the form by just clicking on this link.  From there, fill out and follow all the instructions on the form.  If your complaint is longer than the space provided, you can attach a letter laying out your complaint.  Then send it to the State Bar (address is listed on the form) and they take it from there.

So, what is the process?

Well, first the Bar will review to see if the State Bar has jurisdiction (checking to make sure the attorney is actually a Virginia attorney, for example).  If not, the complaint is dismissed.  If so, then the complaint is forwarded to Bar Counsel (an attorney for the State Bar) and a file is opened.  Bar Counsel will then review the complaint to see if the conduct alleged would actually indicate a rule violation if completely true.  If not, the complaint is dismissed, but if so, then a preliminary investigation begins.  Bar Counsel may ask the complainant for more information to make this determination.

At the preliminary investigation stage, the lawyer is sent the complaint and given an opportunity to respond.  If the lawyer responds, that response is sent to the complainant and the complainant can reply to it.  Once the complainant replies (or the time to do so has expired), the Bar Counsel will review the pleadings for basically what is "in play" (essentially all facts in the complaint not denied by the answer, all facts in the complaint denied by the answer but which denial was challenged by the complainant's reply, and all claims in the answer which were not disputed by the complainant's reply).  If those "in play" facts no longer support a rule violation, then the complaint is dismissed.  If they do, then a further investigation is ordered.

The full investigation will involve Bar Counsel interviewing witnesses (the complainant, the lawyer, anyone named as a witness by either, etc.), seeking documentary evidence, etc.  At the end of the investigation, the Bar Counsel will send the investigation results to a local committee to review and decide if there is sufficient evidence of a rule violation to continue.  If not, the complaint is dismissed, if so, a hearing is held.  If, after the hearing, a rule violation is found by "clear and convincing evidence," the attorney will be penalized accordingly.  There are then appeals that can follow.

Complainant's Role

As you can guess, then, your role may not end with the filing of a complaint.  You will be notified of the disposition of any complaint you file, but if there is a response filed by the attorney, you will likely need to file a reply for your response to not be dismissed.  Further, you will likely have to give a statement to Bar Counsel during the investigation, and you may have to testify at the hearing.  Otherwise, however, most of the work is undertaken by the Bar.

Conclusion

The Bar disciplinary process is very important to ensuring the integrity of the legal profession.  As a non-lawyer, you can help this system work by reporting unethical conduct you encounter from attorneys.

Thursday, July 3, 2014

Proving Adultery in Virginia Divorce Cases

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

Update:  Some portions of this blog post are outdated due to changes in the law since this post was first made.  Please see my 2020 relevant changes in the law post for details.

Introduction

Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia.  Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period.  Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property.  If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award.  Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.

Proving adultery, however, remains challenging.  Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt."  Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove.  Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.

Confessions

Obviously, the fastest way to prove adultery is by having the adulterer confess.  Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is.  Also obviously, this is not an easy thing to do.  If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?

Moreover, in Virginia we have another problem.  Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor.  This means that, when pressed, an accused adulterer has the ability to plead the fifth.  In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.

Now, there is a potential, but imperfect, way around the fifth amendment issue.  Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year.  Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago.  Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.

In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.

Paramour

The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself.  I've been surprised in my work how often the paramour actually is willing to testify.  Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.

Now, a paramour's testimony is not inherently considered reliable by the court.  If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult.  Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom.  Nonetheless, if the paramour can back up the story, you've got a very strong case.

Obviously, there are obstacles here too.  Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth.  Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully.  Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony.  And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).

Circumstantial Evidence

If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence.  Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win.  If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?

Obviously, some circumstantial evidence is more powerful than others.  If your husband is named as the father on the birth certificate of another woman's baby, for example.  I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen.  However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.

Of course, you might be thinking "how would I know?"  Beyond credit card bills and phone records, a private investigator is frequently the best way to find out.  A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence.  Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.

Conclusion

Adultery still plays a large role in family law, even in our current no-fault era.  Proving adultery, however, is very difficult, and takes some level of expertise.  If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, 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 half an hour.

Tuesday, July 1, 2014

Classic Law is Your Friend: VRLTA vs. Virginia Common Law Leases

Today's Classic Blog Post covers how to tell whether your lease is covered by the Virginia Residential Landlord and Tenant Act or the common law, and some of why that matters.  It was originally posted on May 20, 2013 and titled "VRLTA or not VRLTA:  Your Lease and the Law."

Please note this post was updated from its original posting to reflect some recent changes in the law.

As always, before reading this post I encourage you to review my disclaimer by clicking on the link at the top of the page, or by following this link.

Introduction

At some point or another, the vast majority of us are going to live in a home or apartment that we have rented.  Be it off-campus housing in college, our first home when we start working, or longer-term housing, almost everyone rents at some point in time.  When we rent, we do so under a contract known as a lease.  A lease can be written, oral, or implied, but a lease does exist in every rental situation whether you know it or not.  Most leases, however, are written, and you should be very hesitant about entering into any rental arrangement without having a written lease.

A lease is a very important contract, and affects your rights dramatically.  Moreover, leases can be very long, very confusing, and perhaps most importantly, it is entirely possible that you will have a lease which has provisions that are actually not legally applicable.  As a result, it is important to not only read your lease thoroughly, but to also know the law before you sign your lease.  Unfortunately, few people take both of these steps.  Leases are frequently written to benefit the landlord, and there is nothing illegal about writing invalid provisions into a lease - as a result, many landlords do this to discourage tenants from protecting their rights.

Landlord/tenant law, especially in Virginia, is a very complex topic, and I would be foolish to try to cover it all in one blog post (or even two, three or four posts).  As a result, my goals with this post are much more limited.  Specifically, I hope to help you identify which laws apply to your lease and which don't and how that affects your rights.  I will do future posts covering related matters.

VRLTA vs. Common Law/Title 55 - Chapter 13

Chapter 13.2 of Title 55 of the Code of Virginia is called the Virginia Residential Landlord and Tenant Act (or VRLTA), which was passed in 1974 in order to simplify some elements of residential rentals.  Many people mistakenly believe that VRLTA's purpose was to protect tenants.  While it is true that VRLTA has many protections built in for tenants that did not exist prior to VRLTA's implementation, there are also actually a number of provisions that make it easier for a landlord to evict tenants as well.  VRLTA really just streamlines and simplifies landlord/tenant disputes - it does not particularly favor one side or the other.

VRLTA does not apply to all leases, however.  Specifically, leases are not covered by VRLTA in the following situations:

  • residence at a public or private "institution" (college dorms, prison, hospital, old age home, etc.) when residence there is due to "detention or the provision of medical, geriatric, educational, counseling, religious or similar services"
  • occupancy in a home that the tenant has purchased prior to the settlement on the sale of the home
  • residence in a sorority or fraternity house by a member of that sorority or fraternity
  • occupancy in a motel, hotel, vacation cottage, etc. unless leased for more than 30 straight days to the same person
  • occupancy by the landlord's employee (or ex-employee for up to 60 days after the end of employment) when the right to occupancy is conditioned on continued employment
  • occupancy by the owner of a condominium unit or the owner of a proprietary lease in a cooperative
  • occupancy where the rented unit is to be used primarily for business, commercial or agricultural purposes
  • occupancy in a public housing unit governed by HUD regulations wherever HUD regulations conflict with VRLTA
  • occupancy by a tenant who pays no rent
  • 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 two single-family residences subject to a rental agreement
I have bolded the last two because those are the cases I see most often, so this needs to be clear.  If you pay no rent (so, say, you are an adult and your parents are letting you stay with them for free) the VRLTA does not apply to your situation.

The last provision is confusing, so let me spell it out a little more clearly.  Basically, if you are renting from a person (not a corporation, LLC, etc.), the VRLTA does not apply unless that person owns three or more single-family residences, including the one you are renting, which he or she is renting out.

Why it Matters

If the VRLTA does not apply, then you are subject to the Common Law (law made by judges over the centuries), as altered by Chapter 13 of Title 55 of the Code of Virginia.  The reason this matters is that the two sets of laws are very different.  Perhaps the most important difference, however, is that VRLTA has section 55-248.9.  That section prohibits certain provisions from being in a lease, and amongst those provisions is any provision in which the tenant waives any of his or her rights under the VRLTA.  Chapter 13 of Title 55 has no equivalent provision.  In other words, unless the specific code provision says otherwise, any provision of Chapter 13 of Title 55 can be waived by the lease.

I cannot count the number of times I have had someone come running to me with something horrible their landlord has done.  I will find where the landlord has no responsibility for this in the lease, the tenant will show me the provision of the law that gives the landlord responsibility, and I will have to explain that, since it's not a VRLTA lease, the lease provision actually wins.  Or, I will have someone with a non-VRLTA lease who found a great legal provision in the VRLTA.  So, as a general rule, if you are researching Virginia landlord/tenant law and you find a provision, check out the section number.  If it is section number 55-248.x or 55-248.xx, you are reading a VRLTA provision.  If it is between 55-217 and 55-248 (no decimal point), it is a Chapter 13 provision (but again, remember, unless that provision says otherwise, that provision is waivable in the lease).

Exception

Now, there is one big exception to all that I have laid out above.  There is a way to make your non-VRLTA lease into a VRLTA lease, and thus open up all of the VRLTA options to you.  Section 55-248.5(B) specifically allows the lease itself to declare that it is to be governed by VRLTA, even if the rental situation is one that fits into one of the categories that would normally be excluded from VRLTA coverage.  If you would prefer to have your lease governed by the VRLTA, you can ask for such a provision, and if included in the lease, the VRLTA would apply.  Just remember, the VRLTA is a double-edged sword - it provides additional protections for tenants, but also provides additional protections for landlords as well.

How to find the Law

So, now that you know which law applies to your lease, you might wonder how you find that law.  The simplest way without following links on the blog is to go to a search engine, search for "Code of Virginia," go to the Table of Contents, then click on Title 55, then click on either Chapter 13 or Chapter 13.2 for whichever applies to your lease.  For simplicity, however, you can click on my links here to find Chapter 13 or the VRLTA.

Conclusion

As I stated at the beginning, leases are a major topic.  Look at how long this blog post is, and all that I've done is help you figure out which laws apply to your lease!  If you would like to have an attorney review your lease before you sign it, or answer your questions about the law and its applicability to your lease (and what it really means to you), or if you are engaged in a landlord/tenant dispute now and would like an attorney to assist you, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with me - the consultation is free for up to half an hour!