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've discussed previously in this blog the difference between a court judgment and a court order, including the difference between a money judgment and an order to pay. The biggest difference between the two, as I've said before, is that judgments require some other action to enforce, while orders present requirements for the party so ordered to follow, and the violation of an order carries the risk of jail time due to contempt of court, while judgments carry no such risk. Finally, I've at least alluded to the fact that it's not necessarily a simple process for someone to be held in contempt when they violate an order.
In today's blog post, I will discuss what to do when someone has violated a court order (as opposed to a judgment). I will be discussing it in the family law context (so, divorce orders, support orders, custody/visitation orders, etc.) since that is what I practice, but a good deal of the principles here can apply to other forms of court orders.
Also, please note that in some cases, the case may get referred to the Commonwealth's Attorney for pursuit of a criminal contempt charge. In that case, the case proceeds like a normal prosecution, and your attorney is no longer involved. Because the vast majority of contempt charges in civil cases, including divorce, proceed as "civil contempt" charges - and because when I am involved in a contempt proceeding it is always in a "civil contempt" context - I will only be discussing civil contempt in this blog post.
With One Exception, Don't Bother Calling the Police
The natural instinct for many people when faced with a violation of a court order is to call the police. After all, violating a court order, committing contempt of court, is a crime. The police, however, do not consider enforcing court orders to be part of their job - nor should they. The presumption of innocence applies just as much to contempt as to any other crime, and the fact that you have another avenue (as explained later) to enforce the order means the police really have no place stepping in themselves.
There is an exception to this, however, and that is in the custody context. If the non-custodial parent with visitation is refusing to return the child, or has absconded with the child, you are no longer just dealing with contempt, but also kidnapping. The police frequently will intervene in such a case (after all, there is the possibility that a life could be in danger), especially if it is not a matter of the parent delaying returning the child but rather the parent actually refusing to return the child. Now, there is also an exception to that exception - if the parent refusing to return the child is doing so because that parent fears the child is actually in danger from the custodial parent, the police generally will not intervene so long as the non-custodial parent goes straight to the courthouse (or, if the courthouse is closed, does so as soon as it opens) to file an emergency to motion to get legal custody.
These are, of course, general rules, and different police departments behave differently, but generally, it is not worth calling the police over a violation of a court order (especially if that violation only involves money). I would note, however, that violations of court orders that also involve a danger to your life or safety (or the life or safety of anyone else), and violations of court orders that also involve the violation of a protective order, are violations that also involve other crimes, and as a result police intervention would be warranted in those cases as well.
Get an Attorney
Now, I always advise people to get an attorney, but in this context it is even more important. The reason for this is that, frankly, the rules surrounding contempt proceedings are complicated, and even worse, they generally vary from county to county, so you want an attorney who knows the local rules. If you are dealing with the violation of a Juvenile & Domestic Relations District Court order, this is slightly less important because the court's intake office will probably be willing to guide you through the process, but this still has pitfalls. If you are dealing with a Circuit Court order, you definitely want an attorney.
Figure Out if the Violation is Worth Pursuing
The next step is to discuss with your attorney if this violation is actually worth pursuing. Judges are very busy, and in general don't want to see your nit-picky case in front of them. If you are taking action over something minor, you are likely to get nothing from the judge but that judge's anger. In support cases, for example, a few dollars should probably just be let go. In a visitation case, the child being brought to you thirty minutes late probably also isn't a big deal.
That being said, there's no rule that says a contempt proceeding has to be limited to one incident - it can be cumulative. If, for example, the support payor is paying $25 less every month then after a year you've got a $300 arrearage - for some people that's a lot of money and may be worth pursuing, even though the individual $25 shortages weren't. In a visitation situation, one half hour delay may not be worth pursuing, but 20 might be. This is really something to discuss with your attorney and assess whether or not you should really move forward.
File a Petition for Rule to Show Cause
So, let's say you and your attorney decide you should go forward. The next step is to file a petition for a rule to show cause. This is a petition that you sign under oath (so lying could subject you to a perjury charge) stating what the other party has done to violate the order. You then submit it to the court, asking the court to issue a "Rule to Show Cause." A Rule to Show Cause is a court order requiring the other party to appear in court at a certain date and time and explain to the judge ("show cause") why he or she should not be held in contempt of court. That order must then be served on the other party. Note that you really need to have the person personally served (instead of having the rule posted to their door), since if they are personally served and don't appear, a warrant for their arrest can be issued.
Appear at the Hearing
You should also be at the hearing on the date listed in the rule to show cause. This is because you will likely also be testifying. The judge at the hearing will hear your testimony as to what happened to violate the order, the other side's testimony as to why he or she did not violate the order (or why the violation was justified), and hear any other testimony either side thinks is necessary. At the end of the hearing, the judge will decide whether or not the judge is convinced that contempt has occurred, and will act accordingly.
So - what can the judge do? If you are dealing with a non-support violation, the judge can jail the other party for up to ten days, fine them, make them pay your attorneys' fees, and even change the underlying court order. The judge's powers are the same for support order violations, except that the jail time can be up to 12 months, and if you are in the Juvenile Court and the other party owes at least three months' worth of support, the judge is required (as opposed to just allowed) to make them pay your attorneys' fees.
As a general rule, however, a judge will rarely impose jail time for a first offense unless there is a very large support arrearage. It is not uncommon, however, for a judge to impost a "suspended sentence," meaning the person is sentenced to jail time, but he or she doesn't actually have to serve that time unless they commit another offense. It's worth noting this can make the next offense more severe, since the judge could then sentence you (in a non-support case) to ten days in jail for that offense and ten days in jail for the previous offense. Of course, this is part of the point of issuing a suspended sentence - having a minimum amount of time that person knows he or she will serve in jail if they commit another violation.
What's the Point?
So, you may look at all of this and say "so, what's the point?" The point, of course, is the same as with much of criminal law. The ability to have someone held in civil contempt makes them more likely to comply with orders to begin with, and the enforcement of a violation makes them less likely to commit further violations. Additionally, sometimes contempt proceedings also get you judgments, which you can use to garnish paychecks and bank accounts. All in all, unless you are dealing with minor violations, civil contempt charges are usually worth pursuing.
Conclusion
If the other party has violated a court order and you wish to have them held in contempt - or you, yourself, have been accused of violating a court order - it's critical that you have the assistance of an attorney going forward. If you would like to consider our services, please 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!
Thursday, August 28, 2014
Thursday, August 21, 2014
Getting a Second Chance in Virginia: Motions to Reconsider After Trial
As always, prior to reading this post please review my disclaimer by clicking the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
[ADDITIONAL DISCLAIMER: In the 3+ years since I posted this blog entry, I've received numerous inquiries about filing motions to reconsider in criminal cases. Please note that I am not a criminal attorney. The procedures outlined here apply only to civil cases. As far as I know, there are similar procedures available in criminal cases, but that is outside of the field I practice and outside my expertise to give advice on. If you are considering a motion to reconsider in a criminal case, this is not the blog post for you.]
Introduction
Most people think that if you lose a court case at trial your only options are to accept defeat or appeal. Many people don't recognize, or far too readily overlook, a third option - a motion to reconsider. A motion to reconsider asks the judge who ruled against you to reconsider his decision, and will present to that judge some reasons why the judge should think again. While this might seem foolish (is the judge really going to reverse himself?), motions to reconsider, in my experience at least, actually do have a success rate that is only slightly lower than the success rate of appeals - all for a fraction of the price.
With that in mind, today's blog post will cover some of the basics of doing a motion to reconsider. It is important to note that for today's post I am speaking of motions to reconsider only in the Circuit Court. While available in the General District and J&DR Courts, they are much less widely used or useful there.
Why File a Motion to Reconsider
So, to start off with, you might wonder what the advantages of a motion to reconsider are. For someone who does not want to just accept the court's ruling, the biggest advantage is that a motion to reconsider is much less expensive than an appeal. While an appeal is a long, expensive process, a motion to reconsider is simply a single motion. In my experience, a motion to reconsider typically costs about a tenth as much as an appeal (with some appeals being many magnitudes more expensive than that).
More importantly, however, a motion to reconsider does not take away your right to file an appeal, so if the motion doesn't work out you have not lost very much, and in fact may have strengthened your appeal. This is because there is a rule in appellate litigation that you cannot appeal an issue unless your objection to the court's ruling was brought to the court's attention and ruled on by the court. If you screw up and don't do this, but raise the issue in a motion to reconsider, the appellate courts have held that you have met your test. In other words, if you fail to preserve an issue for appeal, you will likely reverse that failure if you include the issue in a motion to reconsider, actually saving your ability to appeal.
To that end, a motion to reconsider is perfect for the party who does not want to simply accept the court's ruling, but either does not want the cost of an appeal or wants to strengthen a possible appeal.
How a Motion to Reconsider Works
After the court rules, and the order is actually entered, your time to file a motion begins. Your motion will need to discuss the issues you have with the ruling and all bases in fact and law for why the ruling was wrong. It is important to note, however, that when presenting facts you can only rely on facts and documents that were evidence in trial. A motion to reconsider is not the time to raise new evidence, especially if you could have gotten that evidence during trial. That being said, if there is a new ruling from an appellate court that comes after your trial court's ruling which directly relates to your case, that new ruling can be included in your motion to reconsider.
Once your motion is done you need to submit it to the judge. If you are in a one-judge courthouse, that is easy. If not, you need to go to judges' chambers and ask the clerk there to submit it to the judge who actually entered the order you are seeking to have reconsidered. In most counties, you do not request a hearing - a hearing will only be scheduled if the judge wants one. Also, in most counties, if the other party files a motion to reconsider, you do not file a response unless the judge requests one. These rules vary from county to county, however, so you should check what the rules are for your county (or better yet, hire a local attorney).
The judge will then review the motion and grant or deny it. If granted, the judge may simply alter the order, the judge may order a whole new trial, or the judge could do something in between, it's really up to the judge.
Deadlines
So, how long do you have to file a motion to reconsider? There actually is no set deadline, you can file such a motion as long as the court continues to have jurisdiction over the case. So, how long is that? Well, it is as long as the case is pending, plus 21 days. So, if the order you want reconsidered is not the final order of the case, and the case is still pending, you could wait several months if you wanted to (although it is very unlikely you will be taken seriously if you do). If, however, it is a final order, Virginia Supreme Court Rule 1:1 takes jurisdiction away from the trial court after 21 days.
So, what does that mean? It means not only must your motion to reconsider be filed within 21 days after entry of the final order, it must be ruled on within those 21 days. If your motion is filed in 5 days but the judge doesn't rule on it before the 21st day, that's it, the motion cannot be considered further. This is actually not a denial of the motion (so if you filed your motion to fix a failure to preserve an issue for appeal, you have lost that ability, since your motion can no longer be ruled on), the motion just dies.
Now, you might be thinking "but it takes time to prepare the motion, and the motion may be complex, how does all that get done within 21 days?" Well, a judge has a power to "suspend" a final order while reviewing your motion. To do that, however, you have to request that the judge do so, and you usually have to file a suspending order along with your motion. The judge has the right to refuse to suspend the order, but they rarely do. The result is that I usually try to file both my motions and suspending orders within about 17 or 18 days of entry of the final order.
If the order is suspended, the terms of the order are generally still in force, it is simply being suspended from being "final." If the judge denies your motion to reconsider, the suspension is lifted. However, when an order has been suspended, the 30 day deadline for filing an appeal starts from when the suspension ends, rather than when the order is entered, so you can wait until the motion is ruled on to file your appeal.
Success Rates
I don't have a scientific study of success rates for you, but in my experience, motions to reconsider are only a little bit less successful than appeals (remember, however, the vast majority of appeals are unsuccessful). The most successful motions tend to be ones where the judge clearly misread evidence, or there was a dispositive appellate court case that no one realized existed before trial. Beyond that, however, your chances of success tend to dwindle. Nonetheless, I have never seen a judge who does not take a motion to reconsider seriously. For one thing, most judges are honestly concerned about getting their rulings right, and will correct themselves if convinced they got it wrong. If nothing else, however, judges hate being overturned on appeal, and they know that a motion to reconsider means an appeal is more likely than in your typical case. As a result, a judge will typically review the motion closely to try to prevent there from being anything for which they could be overturned on appeal. As a result, you should not laugh off the possibility of a successful motion to reconsider just because it will be considered by the same judge who ruled against you to begin with.
Conclusion
A motion to reconsider is an important option for a party that has lost at trial which allows the party to avoid having to simply accept the ruling, but also provides the party an opportunity to avoid jumping straight into an appeal. If you have had a ruling go against you and would like to file a motion to reconsider, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
[ADDITIONAL DISCLAIMER: In the 3+ years since I posted this blog entry, I've received numerous inquiries about filing motions to reconsider in criminal cases. Please note that I am not a criminal attorney. The procedures outlined here apply only to civil cases. As far as I know, there are similar procedures available in criminal cases, but that is outside of the field I practice and outside my expertise to give advice on. If you are considering a motion to reconsider in a criminal case, this is not the blog post for you.]
Introduction
Most people think that if you lose a court case at trial your only options are to accept defeat or appeal. Many people don't recognize, or far too readily overlook, a third option - a motion to reconsider. A motion to reconsider asks the judge who ruled against you to reconsider his decision, and will present to that judge some reasons why the judge should think again. While this might seem foolish (is the judge really going to reverse himself?), motions to reconsider, in my experience at least, actually do have a success rate that is only slightly lower than the success rate of appeals - all for a fraction of the price.
With that in mind, today's blog post will cover some of the basics of doing a motion to reconsider. It is important to note that for today's post I am speaking of motions to reconsider only in the Circuit Court. While available in the General District and J&DR Courts, they are much less widely used or useful there.
Why File a Motion to Reconsider
So, to start off with, you might wonder what the advantages of a motion to reconsider are. For someone who does not want to just accept the court's ruling, the biggest advantage is that a motion to reconsider is much less expensive than an appeal. While an appeal is a long, expensive process, a motion to reconsider is simply a single motion. In my experience, a motion to reconsider typically costs about a tenth as much as an appeal (with some appeals being many magnitudes more expensive than that).
More importantly, however, a motion to reconsider does not take away your right to file an appeal, so if the motion doesn't work out you have not lost very much, and in fact may have strengthened your appeal. This is because there is a rule in appellate litigation that you cannot appeal an issue unless your objection to the court's ruling was brought to the court's attention and ruled on by the court. If you screw up and don't do this, but raise the issue in a motion to reconsider, the appellate courts have held that you have met your test. In other words, if you fail to preserve an issue for appeal, you will likely reverse that failure if you include the issue in a motion to reconsider, actually saving your ability to appeal.
To that end, a motion to reconsider is perfect for the party who does not want to simply accept the court's ruling, but either does not want the cost of an appeal or wants to strengthen a possible appeal.
How a Motion to Reconsider Works
After the court rules, and the order is actually entered, your time to file a motion begins. Your motion will need to discuss the issues you have with the ruling and all bases in fact and law for why the ruling was wrong. It is important to note, however, that when presenting facts you can only rely on facts and documents that were evidence in trial. A motion to reconsider is not the time to raise new evidence, especially if you could have gotten that evidence during trial. That being said, if there is a new ruling from an appellate court that comes after your trial court's ruling which directly relates to your case, that new ruling can be included in your motion to reconsider.
Once your motion is done you need to submit it to the judge. If you are in a one-judge courthouse, that is easy. If not, you need to go to judges' chambers and ask the clerk there to submit it to the judge who actually entered the order you are seeking to have reconsidered. In most counties, you do not request a hearing - a hearing will only be scheduled if the judge wants one. Also, in most counties, if the other party files a motion to reconsider, you do not file a response unless the judge requests one. These rules vary from county to county, however, so you should check what the rules are for your county (or better yet, hire a local attorney).
The judge will then review the motion and grant or deny it. If granted, the judge may simply alter the order, the judge may order a whole new trial, or the judge could do something in between, it's really up to the judge.
Deadlines
So, how long do you have to file a motion to reconsider? There actually is no set deadline, you can file such a motion as long as the court continues to have jurisdiction over the case. So, how long is that? Well, it is as long as the case is pending, plus 21 days. So, if the order you want reconsidered is not the final order of the case, and the case is still pending, you could wait several months if you wanted to (although it is very unlikely you will be taken seriously if you do). If, however, it is a final order, Virginia Supreme Court Rule 1:1 takes jurisdiction away from the trial court after 21 days.
So, what does that mean? It means not only must your motion to reconsider be filed within 21 days after entry of the final order, it must be ruled on within those 21 days. If your motion is filed in 5 days but the judge doesn't rule on it before the 21st day, that's it, the motion cannot be considered further. This is actually not a denial of the motion (so if you filed your motion to fix a failure to preserve an issue for appeal, you have lost that ability, since your motion can no longer be ruled on), the motion just dies.
Now, you might be thinking "but it takes time to prepare the motion, and the motion may be complex, how does all that get done within 21 days?" Well, a judge has a power to "suspend" a final order while reviewing your motion. To do that, however, you have to request that the judge do so, and you usually have to file a suspending order along with your motion. The judge has the right to refuse to suspend the order, but they rarely do. The result is that I usually try to file both my motions and suspending orders within about 17 or 18 days of entry of the final order.
If the order is suspended, the terms of the order are generally still in force, it is simply being suspended from being "final." If the judge denies your motion to reconsider, the suspension is lifted. However, when an order has been suspended, the 30 day deadline for filing an appeal starts from when the suspension ends, rather than when the order is entered, so you can wait until the motion is ruled on to file your appeal.
Success Rates
I don't have a scientific study of success rates for you, but in my experience, motions to reconsider are only a little bit less successful than appeals (remember, however, the vast majority of appeals are unsuccessful). The most successful motions tend to be ones where the judge clearly misread evidence, or there was a dispositive appellate court case that no one realized existed before trial. Beyond that, however, your chances of success tend to dwindle. Nonetheless, I have never seen a judge who does not take a motion to reconsider seriously. For one thing, most judges are honestly concerned about getting their rulings right, and will correct themselves if convinced they got it wrong. If nothing else, however, judges hate being overturned on appeal, and they know that a motion to reconsider means an appeal is more likely than in your typical case. As a result, a judge will typically review the motion closely to try to prevent there from being anything for which they could be overturned on appeal. As a result, you should not laugh off the possibility of a successful motion to reconsider just because it will be considered by the same judge who ruled against you to begin with.
Conclusion
A motion to reconsider is an important option for a party that has lost at trial which allows the party to avoid having to simply accept the ruling, but also provides the party an opportunity to avoid jumping straight into an appeal. If you have had a ruling go against you and would like to file a motion to reconsider, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Wednesday, August 13, 2014
Virginia Law and the Blog - Common Questions about Past Posts
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
Having just returned from vacation, my work has been somewhat intense. I have some free time today, and tomorrow looks like I will have none, so today seems like the right day to do a blog post. Doing a blog post on short notice, however, usually winds up with an FAQ, but I realized that questions I have been getting about previous posts of mine have reached a sufficient quantity to warrant their own post.
So, today I will be answering questions that I have received by e-mail or comment about past blog posts - questions that I feel deserve an answer that everyone can see, but which do not warrant a full blog post on their own. Today's topics include: Landlord "self-help" in non-VRLTA leases, Security Deposits held past 45 days in VRLTA leases, diplomatic immunity clauses in leases, retaining payment records, and the impact of the new child support guidelines on existing orders.
So, sit back, relax, and learn from the questions raised by others!
"You have said (in fact, repeatedly) that landlords for residential leases cannot engage in 'self-help' by changing the locks on an unpaying tenant, but in fact have to get a court order before they can evict. However, I just saw an online article/received a written pamphlet saying a landlord can 'self-help' if their lease is not governed by the Virginia Residential Landlord and Tenant Act (VRLTA). Can you prove that you are right? And if so, do you know why the online article/pamphlet would say otherwise"
I've gotten this question a very large number of times, so I figured it was time to set the record straight. First of all, if you are new to my blog, it might be worthwhile to familiarize yourself with when the VRLTA does and does not apply.
The really short answer to the two questions is yes, and yes. The slightly less short answer to the first question is to look at Virginia Code Section 55-225.1. The slightly less short answer to the second questions is the online article or pamphlet was written before July 1, 2012 (or, possibly, before July 1, 1994).
Ok, so here's the longer answer. Under the common law, which is what applied to all residential leases before the VRLTA was adopted in the 1970's, and which still applies to all non-VRLTA residential leases today, a landlord was, in fact, allowed to self-help. A landlord could protect himself from potential liability by going to court first, and could also get the assistance of the sheriff's department by going to court first (for example, if the tenant was a risk for violence), but the landlord did not have to go court first. As you probably remember from civics, however, "common law" can be changed by statutes and legislation. The VRLTA was a big change to the common law for the leases it applied to. Nonetheless, for non-VRLTA leases, the common law remained (and still remains) the primary force influencing how these leases are governed.
Nonetheless, stories of abusive landlords became prevalent, and in 1994, the Virginia General Assembly passed Code Section 55-225.1, which made the default rule that a landlord couldn't self-help. So, end of story, right? Not quite. See, as I've mentioned several times before, the biggest difference between the VRLTA and the statutory laws that govern non-VRLTA leases is that the VRLTA makes invalid and unenforceable any part of a lease that waives tenants' rights under the VRLTA. Chapter 13 of Title 55 of the Code of Virginia, where most laws governing non-VRLTA residential leases are found, has no similar provision. So, even after the 1994 change, landlords were updating their leases to waive the applicability of Code Section 55-225.1. This meant that landlords still could "self-help" in a non-VRLTA residential lease, even after the 1994 change.
This changed in 2012. In 2012, the General Assembly amended Code Section 55-225.1 to add a sentence reading "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." As a result, since this law went into effect on July 1, 2012, all new residential leases entered into on or after that date which are not governed by the VRLTA cannot waive the protection of Code Section 55-225.1, thus residential landlords are now forbidden from ever engaging in "self-help."
"You said that a security deposit in a lease under the VRLTA must be returned in full if the landlord has failed to provide an itemized list of deductions within 45 days of the end of the lease. My landlord didn't give me an itemized list within 45 days, but I also know that there was enough damage to the property that the landlord would be able to keep almost all of my deposit. Is it worth pursuing getting the full amount back if my landlord can turn around and counter-sue me for the damage?"
This is actually a tricky question because the answer is not clear-cut. The VRLTA makes quite clear in Code Section 55-248.15:1 that failure to provide you with the itemized list (unless the failure was not the landlord's fault) within 45 days entitles you to a full refund of the deposit. The only exception listed is that if you have unpaid rent owed to the landlord, the amount refunded to you will be reduced by that amount. There is, however, also a provision that states "This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter." To add to the confusion, all of this is basically located in one giant text paragraph in the Code.
So, in my experience, most judges interpret this section as follows: Since "this section" talks about damages from property damage, the "other damages" referred to does not include property damage. As a result, the failure to comply with the 45 day notice not only entitles you to a refund of the security deposit, but actually also waives the landlord's right to claim from you any property damage at all. This is, in my opinion, the only logical way to read this section - as the ability of the landlord to counter-sue for the property damage (or to sue you years later for it) would seem to defeat the whole purpose of the 45 day rule.
Nonetheless, the lack of clarity in the Code provision means I cannot say this with certainty. As a result, it likely is worth pursuing (especially since you are supposed to be reimbursed your reasonable attorneys' fees in such a case), but I cannot guarantee it.
"You said that a diplomat renting property cannot be forcibly evicted due to the applicability of diplomatic immunity. You further pointed out that a diplomat cannot waive diplomatic immunity - only his government can - and that a request to the government to waive the immunity of a dead-beat diplomat is likely to fail. I just handled a lease with a diplomat which includes a provision nullifying the lease if the diplomat does not provide the landlord with notice from his Embassy that his diplomatic immunity has been waived for this lease - it sounds great in theory, but considering your post, how am I going to enforce it? Once he moves in, aren't we stuck with him whether the lease is 'null' or not?"
Diplomatic immunity clauses like the one referenced above are very common in areas with large numbers of diplomats - especially in leases drawn up by professionals (I include them in every lease I draw up for a landlord client). But, considering my post about diplomats, how are these enforceable? Well, there are some important things to remember.
A diplomat requesting his own immunity be waived is very different from a spurned landlord making the same request. If the diplomat's securing the housing of his choice depends on it, the diplomat's government likely will grant the diplomat's request to waive his immunity.
The broader question, however, is how to enforce this clause. After all, as the questioner correctly notes, once the diplomat moves in, it's his home, inviolability kicks in, and he cannot be evicted no matter how "null" the lease now is. The answer, then, should be obvious - this provision is enforced before the tenant moves in. You do not "deliver possession," meaning you do not give the tenant the keys, access to the property, etc., until after the tenant has complied with this provision. This is because before the tenant moves in, it is not his home, there is no "inviolability," and you can keep the tenant off the property.
So, in other words, this is a pre-possession requirement. The lease is nullified if the condition is not met before the tenant ever moves in. That is how these provisions are enforced.
"You said that when you are accused of non-payment of something, the claim that you actually have paid is an affirmative defense and on the defendant to prove - thus meaning you should retain all records of payment. How long should I keep these records?"
So, the easy answer is to say "forever," but that's both unrealistic and probably foolish. The odds are you will never be challenged on a payment you made, so keeping stacks of paper is silly. My more practical recommendation is to follow the relevant statutes of limitations, and add a year. If your payment was due to a contract, keep your records of payment for six years. If your payment was due to a court judgment, keep your records for 21 years. Those are the two basic areas where non-payment gets challenged. If, however, your payment was due to some kind of injury you caused someone else, and you tried to compensate them in advance without having a settlement, keep those records also for at least six years.
In terms of child support and spousal support - unpaid child support and spousal support is treated as a judgment in Virginia. So, those payment records should also be retained for 21 years.
Also, get to know your bank's record retention policy. Many banks don't maintain statements for more than 5 to 7 years, so if you need to hold records for longer than that amount of time, get those statements in paper.
"You said that this year, the General Assembly has modified the child support guidelines. How does this effect child support orders already in effect on July 1, 2014?"
Child support orders already in effect will not be affected by the change - they remain in effect as is. That being said, the Virginia Court of Appeals has held that when laws like this change, if they would cause a "significant" change in support, then the change in law can be considered a "material change in circumstances" which allows either party to file a motion to get the child support modified. The word "significant" has never been defined by the court, but I think a reasonableness test would likely apply to whether or not something is significant. I will say that in early July I offered all of my current clients paying and receiving child support the opportunity to do a free recalculation of what their support would be under the new law (if the numbers used to calculate the existing order remained the same) to determine if it was worth filing a motion. The average recalculation I did showed a change of $3 per month (there are no 0's missing, that really is just the number three) and I had only one client show a potential change greater than 2%. With that in mind, I would not expect the new law to provide a material change of circumstances to most people. If, however, your case is one where the combined income of both parents was/is greater than $10,000 per month but less than $35,000 per month, that is where a significant change is most likely, since that area is where the biggest changes to the guidelines can be found.
Conclusion
I actually have a few more I'd love to cover, but this post is getting kind of long, so I will wrap it up here and maybe do a similar post in the future. As always, I welcome questions (and challenges!) either by e-mail or by comment to my blog posts - this truly has been an exercise I have greatly enjoyed. If you are interested in retaining my services, 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!
Introduction
Having just returned from vacation, my work has been somewhat intense. I have some free time today, and tomorrow looks like I will have none, so today seems like the right day to do a blog post. Doing a blog post on short notice, however, usually winds up with an FAQ, but I realized that questions I have been getting about previous posts of mine have reached a sufficient quantity to warrant their own post.
So, today I will be answering questions that I have received by e-mail or comment about past blog posts - questions that I feel deserve an answer that everyone can see, but which do not warrant a full blog post on their own. Today's topics include: Landlord "self-help" in non-VRLTA leases, Security Deposits held past 45 days in VRLTA leases, diplomatic immunity clauses in leases, retaining payment records, and the impact of the new child support guidelines on existing orders.
So, sit back, relax, and learn from the questions raised by others!
"You have said (in fact, repeatedly) that landlords for residential leases cannot engage in 'self-help' by changing the locks on an unpaying tenant, but in fact have to get a court order before they can evict. However, I just saw an online article/received a written pamphlet saying a landlord can 'self-help' if their lease is not governed by the Virginia Residential Landlord and Tenant Act (VRLTA). Can you prove that you are right? And if so, do you know why the online article/pamphlet would say otherwise"
I've gotten this question a very large number of times, so I figured it was time to set the record straight. First of all, if you are new to my blog, it might be worthwhile to familiarize yourself with when the VRLTA does and does not apply.
The really short answer to the two questions is yes, and yes. The slightly less short answer to the first question is to look at Virginia Code Section 55-225.1. The slightly less short answer to the second questions is the online article or pamphlet was written before July 1, 2012 (or, possibly, before July 1, 1994).
Ok, so here's the longer answer. Under the common law, which is what applied to all residential leases before the VRLTA was adopted in the 1970's, and which still applies to all non-VRLTA residential leases today, a landlord was, in fact, allowed to self-help. A landlord could protect himself from potential liability by going to court first, and could also get the assistance of the sheriff's department by going to court first (for example, if the tenant was a risk for violence), but the landlord did not have to go court first. As you probably remember from civics, however, "common law" can be changed by statutes and legislation. The VRLTA was a big change to the common law for the leases it applied to. Nonetheless, for non-VRLTA leases, the common law remained (and still remains) the primary force influencing how these leases are governed.
Nonetheless, stories of abusive landlords became prevalent, and in 1994, the Virginia General Assembly passed Code Section 55-225.1, which made the default rule that a landlord couldn't self-help. So, end of story, right? Not quite. See, as I've mentioned several times before, the biggest difference between the VRLTA and the statutory laws that govern non-VRLTA leases is that the VRLTA makes invalid and unenforceable any part of a lease that waives tenants' rights under the VRLTA. Chapter 13 of Title 55 of the Code of Virginia, where most laws governing non-VRLTA residential leases are found, has no similar provision. So, even after the 1994 change, landlords were updating their leases to waive the applicability of Code Section 55-225.1. This meant that landlords still could "self-help" in a non-VRLTA residential lease, even after the 1994 change.
This changed in 2012. In 2012, the General Assembly amended Code Section 55-225.1 to add a sentence reading "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." As a result, since this law went into effect on July 1, 2012, all new residential leases entered into on or after that date which are not governed by the VRLTA cannot waive the protection of Code Section 55-225.1, thus residential landlords are now forbidden from ever engaging in "self-help."
"You said that a security deposit in a lease under the VRLTA must be returned in full if the landlord has failed to provide an itemized list of deductions within 45 days of the end of the lease. My landlord didn't give me an itemized list within 45 days, but I also know that there was enough damage to the property that the landlord would be able to keep almost all of my deposit. Is it worth pursuing getting the full amount back if my landlord can turn around and counter-sue me for the damage?"
This is actually a tricky question because the answer is not clear-cut. The VRLTA makes quite clear in Code Section 55-248.15:1 that failure to provide you with the itemized list (unless the failure was not the landlord's fault) within 45 days entitles you to a full refund of the deposit. The only exception listed is that if you have unpaid rent owed to the landlord, the amount refunded to you will be reduced by that amount. There is, however, also a provision that states "This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter." To add to the confusion, all of this is basically located in one giant text paragraph in the Code.
So, in my experience, most judges interpret this section as follows: Since "this section" talks about damages from property damage, the "other damages" referred to does not include property damage. As a result, the failure to comply with the 45 day notice not only entitles you to a refund of the security deposit, but actually also waives the landlord's right to claim from you any property damage at all. This is, in my opinion, the only logical way to read this section - as the ability of the landlord to counter-sue for the property damage (or to sue you years later for it) would seem to defeat the whole purpose of the 45 day rule.
Nonetheless, the lack of clarity in the Code provision means I cannot say this with certainty. As a result, it likely is worth pursuing (especially since you are supposed to be reimbursed your reasonable attorneys' fees in such a case), but I cannot guarantee it.
"You said that a diplomat renting property cannot be forcibly evicted due to the applicability of diplomatic immunity. You further pointed out that a diplomat cannot waive diplomatic immunity - only his government can - and that a request to the government to waive the immunity of a dead-beat diplomat is likely to fail. I just handled a lease with a diplomat which includes a provision nullifying the lease if the diplomat does not provide the landlord with notice from his Embassy that his diplomatic immunity has been waived for this lease - it sounds great in theory, but considering your post, how am I going to enforce it? Once he moves in, aren't we stuck with him whether the lease is 'null' or not?"
Diplomatic immunity clauses like the one referenced above are very common in areas with large numbers of diplomats - especially in leases drawn up by professionals (I include them in every lease I draw up for a landlord client). But, considering my post about diplomats, how are these enforceable? Well, there are some important things to remember.
A diplomat requesting his own immunity be waived is very different from a spurned landlord making the same request. If the diplomat's securing the housing of his choice depends on it, the diplomat's government likely will grant the diplomat's request to waive his immunity.
The broader question, however, is how to enforce this clause. After all, as the questioner correctly notes, once the diplomat moves in, it's his home, inviolability kicks in, and he cannot be evicted no matter how "null" the lease now is. The answer, then, should be obvious - this provision is enforced before the tenant moves in. You do not "deliver possession," meaning you do not give the tenant the keys, access to the property, etc., until after the tenant has complied with this provision. This is because before the tenant moves in, it is not his home, there is no "inviolability," and you can keep the tenant off the property.
So, in other words, this is a pre-possession requirement. The lease is nullified if the condition is not met before the tenant ever moves in. That is how these provisions are enforced.
"You said that when you are accused of non-payment of something, the claim that you actually have paid is an affirmative defense and on the defendant to prove - thus meaning you should retain all records of payment. How long should I keep these records?"
So, the easy answer is to say "forever," but that's both unrealistic and probably foolish. The odds are you will never be challenged on a payment you made, so keeping stacks of paper is silly. My more practical recommendation is to follow the relevant statutes of limitations, and add a year. If your payment was due to a contract, keep your records of payment for six years. If your payment was due to a court judgment, keep your records for 21 years. Those are the two basic areas where non-payment gets challenged. If, however, your payment was due to some kind of injury you caused someone else, and you tried to compensate them in advance without having a settlement, keep those records also for at least six years.
In terms of child support and spousal support - unpaid child support and spousal support is treated as a judgment in Virginia. So, those payment records should also be retained for 21 years.
Also, get to know your bank's record retention policy. Many banks don't maintain statements for more than 5 to 7 years, so if you need to hold records for longer than that amount of time, get those statements in paper.
"You said that this year, the General Assembly has modified the child support guidelines. How does this effect child support orders already in effect on July 1, 2014?"
Child support orders already in effect will not be affected by the change - they remain in effect as is. That being said, the Virginia Court of Appeals has held that when laws like this change, if they would cause a "significant" change in support, then the change in law can be considered a "material change in circumstances" which allows either party to file a motion to get the child support modified. The word "significant" has never been defined by the court, but I think a reasonableness test would likely apply to whether or not something is significant. I will say that in early July I offered all of my current clients paying and receiving child support the opportunity to do a free recalculation of what their support would be under the new law (if the numbers used to calculate the existing order remained the same) to determine if it was worth filing a motion. The average recalculation I did showed a change of $3 per month (there are no 0's missing, that really is just the number three) and I had only one client show a potential change greater than 2%. With that in mind, I would not expect the new law to provide a material change of circumstances to most people. If, however, your case is one where the combined income of both parents was/is greater than $10,000 per month but less than $35,000 per month, that is where a significant change is most likely, since that area is where the biggest changes to the guidelines can be found.
Conclusion
I actually have a few more I'd love to cover, but this post is getting kind of long, so I will wrap it up here and maybe do a similar post in the future. As always, I welcome questions (and challenges!) either by e-mail or by comment to my blog posts - this truly has been an exercise I have greatly enjoyed. If you are interested in retaining my services, 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!
Tuesday, August 12, 2014
Classic Law is Your Friend: Virginia's Prohibition on "Self-Help" for Landlords and Tenants
Today's Classic Blog Posts discuss the prohibition in Virginia on landlords and tenants using "self-help" (such as withholding rent, changing locks, etc.). It was originally posted on July 2, 2013 and titled "Changing the Locks, Withholding Rent and Other Mistakes - Your Lease, 'Self-Help' 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, legal principles discussed in this post are applicable only to the Commonwealth of Virginia.
Introduction
I cannot count the number of times I am called upon for a consultation or hear about a case in which the landlord or the tenant has committed some very egregious violations of the lease. I'm nodding along, interested in all the terrible things the other party has done, and then I get to the part I am afraid of. If it's a landlord, I hear "so I kicked them out and changed the locks." If it's a tenant, I hear "so I'm withholding rent until they fix it." That's when a potentially good case goes bad.
What I've referred to above is what we in the landlord/tenant world call "self-help." Self-help is when, instead of going through the courts, the aggrieved party simply takes matters into his or her own hands. It's faster, cheaper and easier than going through the courts, so it's no wonder that it's so appealing. And it works great - if the other party has no idea what their rights are, what the law is, and what remedies they may have available to them. If they do, though, then you've gone from being on the right side of the law to being on the wrong side, and it can cost you, big time.
This blog post will attempt to cover a little bit about the bad things that can happen to you if you try to "self-help," the one major exception to that rule, and a brief discussion of the correct process.
VRLTA vs. Common Law/Chapter 13 Leases
Regular readers of my blog will remember my post from some time ago covering the difference between leases under the Virginia Residential Landlord and Tenant Act (VRLTA) or leases under the Common Law or Chapter 13 of Title 55 of the Code of Virginia. As you may recall, while rights and remedies under VRLTA cannot be waived, most common law/chapter 13 rights can be waived in the lease. Astute readers, however, will notice that I mentioned that most rights under the common law/chapter 13 can be waived - the implication being that there are some that cannot. The right to have the court as a bulwark against abuse, and subsequently the prohibition on self-help, is generally not waivable in even a common law/chapter 13 lease. As a result, the rules in this post are equally applicable to VRLTA leases and common law/chapter 13 leases.
The Danger of Landlord Self-Help
If your tenant stops paying the rent, violates your lease, or otherwise causes trouble, and your response is to take possession of the property yourself, you could be in for a world of trouble. Your tenant can file suit and get a court to actually order you to give possession back. You will likely be charged money for the loss of use and "quiet enjoyment" of the property while the tenant was deprived of it. You will also likely be assessed the tenant's attorneys' fees. Finally, heaven help you if you did anything to the tenant's personal property.
In short, self-help as a landlord will likely end up costing you far more than whatever cost you would incur by waiting and following proper procedures. [It is important to note that, after being sued by the tenant, you could still turn around and have the tenant properly evicted from the property - you will still owe the tenant for your improper eviction, however, and you may very well have waived your right to retain any part of the security deposit.]
The Danger of Tenant Self-Help
The most common form of tenant self-help when the landlord violates the lease is to simply stop paying rent. Guess what - if you do that, you can still be evicted for non-payment of rent. You might ultimately not have to pay the rent that you withheld, but by going outside the proper channels you will likely be evicted, be assessed your landlord's attorneys' fees, and you may very well still have to pay that rent. Again, self-help will likely end up costing you far more than the cost of waiting and following proper procedures.
The Proper Procedures
As a landlord or tenant, there are proper legal procedures to take. As a landlord, there are three types of notices you must give first: 5 day pay or quit, 21/30 notice, or 30 day notice. The 5 day pay or quit is for non-payment of rent only. This gives the tenant 5 days to get paid in full or the lease terminates. The 21/30 notice is for a remediable breach of the lease which gives the tenant 21 days to fix the breach, or else the lease terminates 30 days following the notice. The 30 day notice is for a non-remediable breach which simply notifies the tenant that the lease will terminate after 30 days. If, under any of these notices, the lease does terminate and the tenant remains on the premises, you must file an Unlawful Detainer action in court. If you win that action, and the tenant remains in possession, then you must file for a writ of possession. Only upon the execution of the writ of possession may you forcefully re-take possession of the property.
As a tenant, you also have three types of notices available to you: an "assertion" notice, a 21/30 notice, or a 30 day notice. In an "assertion" notice you simply notify, in writing, the landlord of the problem and allow the landlord a "reasonable" amount of time to fix it. A 21/30 notice is for remediable breaches of the lease which, again, allows the landlord 21 days to fix the breach or else the lease terminates 30 days after the notice - you must still pay your rent while this notice is pending. A 30 day notice is for a non-remediable breach, and again, the lease will terminate automatically after 30 days - but you must still pay your rent while this notice is pending. For the latter two notices, if the lease does, in fact, terminate after those 30 days, then, and only then, you may stop paying rent, but you also must vacate the property by the end of those 30 days. For the "assertion" notice, once a "reasonable" time has passed, you can go to the General District Court and file a Tenant's Assertion laying out the problems. You will then continue to pay rent, only you pay it to the court to go into the court's escrow account. The judge ruling on the case will decide whether to remit some or all of that money to you, and will also decide what corrective actions the landlord must take (or if the lease needs to just terminate).
[Please note that I have expanded on the options available to a tenant to avoid self-help in three posts dated November 13, 2013, November 20, 2013, and December 4, 2014.]
These procedures can be complicated, and they usually take a couple of months to complete, but they are required legal procedures. Not following these procedures could very well end up leaving you in a world of trouble.
Commercial Leases - The Exception
I said in the introduction there is a major exception. That would be commercial leases. Commercial leases are leases to persons or companies who do not plan to live on the premises, but instead plan to run a business out of the premises. A landlord (but not a tenant) may engage in "self-help" in some cases in a commercial lease. However, that right must be clearly delineated in the lease, and, unless there are specific rules in the lease for how personal property is to be handled, the landlord must be very careful to protect the personal property of the tenant if engaging in self-help. In my opinion, it's always safer to go the legal, non-self-help route, even in commercial lease situations, because unless you have an airtight lease, there's always an opportunity for trouble with self-help.
Conclusion
If you are in a situation with a bad landlord or tenant, self-help is not the answer. There is a specific legal process you generally must, and pretty much always should, follow. If you would like assistance in ensuring that you are following all legal steps properly in your landlord/tenant dispute, please feel free to call (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com to set up your initial consultation. It's free for up to half an hour!
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, legal principles discussed in this post are applicable only to the Commonwealth of Virginia.
Introduction
I cannot count the number of times I am called upon for a consultation or hear about a case in which the landlord or the tenant has committed some very egregious violations of the lease. I'm nodding along, interested in all the terrible things the other party has done, and then I get to the part I am afraid of. If it's a landlord, I hear "so I kicked them out and changed the locks." If it's a tenant, I hear "so I'm withholding rent until they fix it." That's when a potentially good case goes bad.
What I've referred to above is what we in the landlord/tenant world call "self-help." Self-help is when, instead of going through the courts, the aggrieved party simply takes matters into his or her own hands. It's faster, cheaper and easier than going through the courts, so it's no wonder that it's so appealing. And it works great - if the other party has no idea what their rights are, what the law is, and what remedies they may have available to them. If they do, though, then you've gone from being on the right side of the law to being on the wrong side, and it can cost you, big time.
This blog post will attempt to cover a little bit about the bad things that can happen to you if you try to "self-help," the one major exception to that rule, and a brief discussion of the correct process.
VRLTA vs. Common Law/Chapter 13 Leases
Regular readers of my blog will remember my post from some time ago covering the difference between leases under the Virginia Residential Landlord and Tenant Act (VRLTA) or leases under the Common Law or Chapter 13 of Title 55 of the Code of Virginia. As you may recall, while rights and remedies under VRLTA cannot be waived, most common law/chapter 13 rights can be waived in the lease. Astute readers, however, will notice that I mentioned that most rights under the common law/chapter 13 can be waived - the implication being that there are some that cannot. The right to have the court as a bulwark against abuse, and subsequently the prohibition on self-help, is generally not waivable in even a common law/chapter 13 lease. As a result, the rules in this post are equally applicable to VRLTA leases and common law/chapter 13 leases.
The Danger of Landlord Self-Help
If your tenant stops paying the rent, violates your lease, or otherwise causes trouble, and your response is to take possession of the property yourself, you could be in for a world of trouble. Your tenant can file suit and get a court to actually order you to give possession back. You will likely be charged money for the loss of use and "quiet enjoyment" of the property while the tenant was deprived of it. You will also likely be assessed the tenant's attorneys' fees. Finally, heaven help you if you did anything to the tenant's personal property.
In short, self-help as a landlord will likely end up costing you far more than whatever cost you would incur by waiting and following proper procedures. [It is important to note that, after being sued by the tenant, you could still turn around and have the tenant properly evicted from the property - you will still owe the tenant for your improper eviction, however, and you may very well have waived your right to retain any part of the security deposit.]
The Danger of Tenant Self-Help
The most common form of tenant self-help when the landlord violates the lease is to simply stop paying rent. Guess what - if you do that, you can still be evicted for non-payment of rent. You might ultimately not have to pay the rent that you withheld, but by going outside the proper channels you will likely be evicted, be assessed your landlord's attorneys' fees, and you may very well still have to pay that rent. Again, self-help will likely end up costing you far more than the cost of waiting and following proper procedures.
The Proper Procedures
As a landlord or tenant, there are proper legal procedures to take. As a landlord, there are three types of notices you must give first: 5 day pay or quit, 21/30 notice, or 30 day notice. The 5 day pay or quit is for non-payment of rent only. This gives the tenant 5 days to get paid in full or the lease terminates. The 21/30 notice is for a remediable breach of the lease which gives the tenant 21 days to fix the breach, or else the lease terminates 30 days following the notice. The 30 day notice is for a non-remediable breach which simply notifies the tenant that the lease will terminate after 30 days. If, under any of these notices, the lease does terminate and the tenant remains on the premises, you must file an Unlawful Detainer action in court. If you win that action, and the tenant remains in possession, then you must file for a writ of possession. Only upon the execution of the writ of possession may you forcefully re-take possession of the property.
As a tenant, you also have three types of notices available to you: an "assertion" notice, a 21/30 notice, or a 30 day notice. In an "assertion" notice you simply notify, in writing, the landlord of the problem and allow the landlord a "reasonable" amount of time to fix it. A 21/30 notice is for remediable breaches of the lease which, again, allows the landlord 21 days to fix the breach or else the lease terminates 30 days after the notice - you must still pay your rent while this notice is pending. A 30 day notice is for a non-remediable breach, and again, the lease will terminate automatically after 30 days - but you must still pay your rent while this notice is pending. For the latter two notices, if the lease does, in fact, terminate after those 30 days, then, and only then, you may stop paying rent, but you also must vacate the property by the end of those 30 days. For the "assertion" notice, once a "reasonable" time has passed, you can go to the General District Court and file a Tenant's Assertion laying out the problems. You will then continue to pay rent, only you pay it to the court to go into the court's escrow account. The judge ruling on the case will decide whether to remit some or all of that money to you, and will also decide what corrective actions the landlord must take (or if the lease needs to just terminate).
[Please note that I have expanded on the options available to a tenant to avoid self-help in three posts dated November 13, 2013, November 20, 2013, and December 4, 2014.]
These procedures can be complicated, and they usually take a couple of months to complete, but they are required legal procedures. Not following these procedures could very well end up leaving you in a world of trouble.
Commercial Leases - The Exception
I said in the introduction there is a major exception. That would be commercial leases. Commercial leases are leases to persons or companies who do not plan to live on the premises, but instead plan to run a business out of the premises. A landlord (but not a tenant) may engage in "self-help" in some cases in a commercial lease. However, that right must be clearly delineated in the lease, and, unless there are specific rules in the lease for how personal property is to be handled, the landlord must be very careful to protect the personal property of the tenant if engaging in self-help. In my opinion, it's always safer to go the legal, non-self-help route, even in commercial lease situations, because unless you have an airtight lease, there's always an opportunity for trouble with self-help.
Conclusion
If you are in a situation with a bad landlord or tenant, self-help is not the answer. There is a specific legal process you generally must, and pretty much always should, follow. If you would like assistance in ensuring that you are following all legal steps properly in your landlord/tenant dispute, please feel free to call (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com to set up your initial consultation. It's free for up to half an hour!
Wednesday, August 6, 2014
Virginia Visitation Does Not Depend on Child Support
As always, prior to 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
"You can't see your son until you pay your child support!" I cannot count the number of times I have seen that line or something similar to it show up in e-mails given to me at a consultation. Of course, I've also seen the opposite - "You didn't let me see my son, so I'm not going to pay my child support!" For whatever reason, many people have the idea that child support and visitation are related - that if the non-custodial parent doesn't pay, he doesn't get visitation, and if the custodial parent refuses visitation, the non-custodial parent doesn't need to pay child support. This could not be further from the truth, and if you try to act on this belief, you could get in serious trouble. You could even face jail time.
In today's post, I will discuss how and why child support and visitation are unrelated (with a big caveat), and the proper way to handle unpaid child support and denied visitation.
Decoupling Support and Visitation
It's easy to understand why so many parents think support and visitation are related. For one thing, when these things are initially set, they are related. Specifically, a parent who is refusing to pay support is less likely to get a whole lot of visitation, and a parent with a lot of visitation will frequently have a lower support order (see my post on calculating child support to explain, for example, how shared custody support is calculated). Nonetheless, once the original support and visitation orders are entered, the relationship ends.
The reason for this is because both visitation and support are really the right of the child, not the parent. Child support is the embodiment of the child's right to be supported by both parents. Visitation is the embodiment of the child's right to have a relationship with both parents. A person should not lose his rights just because of what someone else did. Thus, the child should not lose his right to support just because the custodial parent denied visitation, nor should the child lose his right to visitation just because the non-custodial parent refused to pay support. The violating parent has infringed on the child's rights, not the other parent's rights, and as a result, it is not the other parent's right to retaliate.
What to Do When the Non-Custodial Parent Doesn't Pay Support
So, what do you do if the non-custodial parent isn't paying support? Well, if you don't have a court order for support already, you need to get one. Otherwise there really isn't anything you can do. If you do have a court order, you need to file to have the other parent held in contempt of court. The other parent can then be ordered to pay you his arrearage, interest, and penalties. Further, the other parent could be sent to jail, or have a suspended jail sentence to hold over their head to force them to pay. They can also have their driver's license suspended, and their passport revoked. What you cannot do, however, is withhold visitation.
What to Do When the Custodial Parent Withholds Visitation
So, what do you do if the custodial parent is withholding visitation? Well, like above, if you don't have a court-ordered custody/visitation arrangement, it's time to get one. The other parent's refusal to give you visitation can be used against them when trying to get a favorable schedule. If you do have an order, again, you need to file to have the other parent held in contempt of court. The other parent can be fined, forced to pay your attorneys' fees, or also sent to jail. The other parent can also be ordered to give you "make-up" visitation time. Finally, you can also use the other parent's refusal as a "material change in circumstances," and try to get custody yourself. What you cannot do, again, is withhold child support.
What Happens If You Do it Anyways
So, say you've read this post and decide to ignore what I say here and retaliate for unpaid support with withheld visitation or retaliate for withheld visitation with unpaid support anyways - what can happen? Well, the other parent can do exactly what I have listed above. If you don't pay support or you withhold visitation, the other parent can have you held in contempt of court regardless of his or her own contempt. This can be especially devastating for a custodial parent, since the ultimate result could be the loss of custody altogether. Is that really a risk you are willing to take out of spite?
Conclusion
If the other parent of your child is failing to pay child support or withholding visitation, don't retaliate by withholding visitation or refusing to pay child support yourself. Hire an attorney and have them held in contempt of court. If you are involved in such a situation, 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!
Introduction
"You can't see your son until you pay your child support!" I cannot count the number of times I have seen that line or something similar to it show up in e-mails given to me at a consultation. Of course, I've also seen the opposite - "You didn't let me see my son, so I'm not going to pay my child support!" For whatever reason, many people have the idea that child support and visitation are related - that if the non-custodial parent doesn't pay, he doesn't get visitation, and if the custodial parent refuses visitation, the non-custodial parent doesn't need to pay child support. This could not be further from the truth, and if you try to act on this belief, you could get in serious trouble. You could even face jail time.
In today's post, I will discuss how and why child support and visitation are unrelated (with a big caveat), and the proper way to handle unpaid child support and denied visitation.
Decoupling Support and Visitation
It's easy to understand why so many parents think support and visitation are related. For one thing, when these things are initially set, they are related. Specifically, a parent who is refusing to pay support is less likely to get a whole lot of visitation, and a parent with a lot of visitation will frequently have a lower support order (see my post on calculating child support to explain, for example, how shared custody support is calculated). Nonetheless, once the original support and visitation orders are entered, the relationship ends.
The reason for this is because both visitation and support are really the right of the child, not the parent. Child support is the embodiment of the child's right to be supported by both parents. Visitation is the embodiment of the child's right to have a relationship with both parents. A person should not lose his rights just because of what someone else did. Thus, the child should not lose his right to support just because the custodial parent denied visitation, nor should the child lose his right to visitation just because the non-custodial parent refused to pay support. The violating parent has infringed on the child's rights, not the other parent's rights, and as a result, it is not the other parent's right to retaliate.
What to Do When the Non-Custodial Parent Doesn't Pay Support
So, what do you do if the non-custodial parent isn't paying support? Well, if you don't have a court order for support already, you need to get one. Otherwise there really isn't anything you can do. If you do have a court order, you need to file to have the other parent held in contempt of court. The other parent can then be ordered to pay you his arrearage, interest, and penalties. Further, the other parent could be sent to jail, or have a suspended jail sentence to hold over their head to force them to pay. They can also have their driver's license suspended, and their passport revoked. What you cannot do, however, is withhold visitation.
What to Do When the Custodial Parent Withholds Visitation
So, what do you do if the custodial parent is withholding visitation? Well, like above, if you don't have a court-ordered custody/visitation arrangement, it's time to get one. The other parent's refusal to give you visitation can be used against them when trying to get a favorable schedule. If you do have an order, again, you need to file to have the other parent held in contempt of court. The other parent can be fined, forced to pay your attorneys' fees, or also sent to jail. The other parent can also be ordered to give you "make-up" visitation time. Finally, you can also use the other parent's refusal as a "material change in circumstances," and try to get custody yourself. What you cannot do, again, is withhold child support.
What Happens If You Do it Anyways
So, say you've read this post and decide to ignore what I say here and retaliate for unpaid support with withheld visitation or retaliate for withheld visitation with unpaid support anyways - what can happen? Well, the other parent can do exactly what I have listed above. If you don't pay support or you withhold visitation, the other parent can have you held in contempt of court regardless of his or her own contempt. This can be especially devastating for a custodial parent, since the ultimate result could be the loss of custody altogether. Is that really a risk you are willing to take out of spite?
Conclusion
If the other parent of your child is failing to pay child support or withholding visitation, don't retaliate by withholding visitation or refusing to pay child support yourself. Hire an attorney and have them held in contempt of court. If you are involved in such a situation, 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!
Friday, August 1, 2014
Settling Lawsuits in Virginia
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
As you probably know, most legal disputes end in settlement. Sure, plenty go to trial, but in most cases the parties reach some kind of agreement that everyone is unhappy with, but figure is better than taking the gamble of actually going to court. There are many reasons to accept or not accept a settlement, and I may go into those in another post, but today I plan to tackle another subject. Once you've settled, how do you actually implement that settlement?
The reality is, there are numerous ways to implement a settlement, but there are three I want to cover today because, in my experience, the vast majority of settlements I am involved in take one of these three approaches. They are, specifically, a signed settlement agreement, a settlement by action, and a confession of judgment note.
Signed Settlement Agreements
A signed settlement agreement is exactly what it sounds like - a written agreement signed by all parties (or, in some cases, their attorneys). The agreement will usually include a waiver of the right to bring a suit (or dismissal of a currently active suit), and terms. It will usually supersede any agreement that was the basis of the original dispute, and will usually prevent the original dispute from ever being disputed in court.
So, as you can imagine, the idea behind a settlement agreement is that it is an enforceable contract between the parties. A breach of the agreement, then, becomes its own basis for a lawsuit - and frequently these agreements will include attorneys' fee provisions to discourage breaches. An even stronger advantage is that in some cases (particularly divorces), the agreement can be incorporated into a court order, so you can use the court's contempt power to enforce it.
The vast majority of settlement agreements I see are implemented this way. The agreements are usually fairly clear and easy to follow, and rarely breached. The biggest disadvantage, however, is that typically a breach will leave you somewhere near square one - you still have to file a lawsuit (usually) to deal with the breach.
Settlement by Action
A settlement by action is a name I have completely made up for a fairly common occurrence. Basically, what happens is that when a lawsuit is pending, a settlement is reached where, instead of having a signed agreement, the party filing the suit simply dismisses the case with prejudice (meaning it can never be re-raised). The two circumstances where I typically see this are where the other party has paid some amount such that the amount in dispute remaining isn't worth pursuing, or where there is a counter-claim, and both parties agree to just dismiss their claims with prejudice.
This is a very informal approach to settlement so it might surprise you to know that I actually see it a lot. It tends to save many people time, and with it legal fees, which is its appeal. The down side, of course, is that there is almost no way to enforce such an agreement if someone backs out before the suit is dismissed.
Confession of Judgment Note
A confession of judgment note has, in all honesty, become my favorite means of settling a case, although it is really only good for lawsuits that are just plain lawsuits for money. A confession of judgment note is a promissory note, signed by only one party, agreeing to pay a certain amount on a certain schedule. If the payor defaults on the note, the payee can take the note to the courthouse and get a judgment automatically entered against the payor - no need for a lawsuit, trial, etc. Obviously the payor has ways to challenge the note, but as long as the underlying fact (that the payor missed a payment) is true, those challenges usually fail.
This may sound very one-sided - how does the payor enforce the note against the payees, for example - but the beauty of a note is that as long as you have the provisions required by law in there, you can add pretty much anything. When I draft a confession of judgment note settling a case I include all the payer's obligations, yes, but I also include what I call a "consideration" section. This section outlines what all the payees have to do in order for the note to be enforceable. If the payees do not do something they are supposed to, the note itself becomes invalid, and the payor no longer needs to make payments.
I have found that confession of judgment notes are usually very good at making both parties compliant. If the payees fail to comply, they lose a source of guaranteed payment, and usually have no way to re-raise their initial lawsuit (usually the consideration section requires them to have dismissed their ongoing lawsuit with prejudice, or signed a waiver of their right to bring a suit, and that provision is almost never violated, since it would mean they had negotiated in bad faith, so the other provisions of the consideration section likely won't apply until the payees have already lost their right to bring a new claim). This means the payees will end up getting far less than if they had followed their obligations since the payor can stop paying and they would have nothing they could do about it.
If the payor fails to comply, on the other hand, a judgment is automatically entered without a trial, and garnishment can begin after 21 days. Further, usually a confession of judgment note settlement will actually have the payor owe the payee the full amount the payee was seeking, but then have the remaining amount waived once the payor has paid a certain amount without a default. As a result, the payor will end up owing far more in case of a breach than the payor would have paid if the payor had not breached.
Conclusion
If you are in a dispute that you want to settle, it is often hard to tell what the best settlement method may be. An attorney can help you figure that out, and help you make sure that all documents are crafted properly under the law (especially confessions of judgment, which have many legal traps). If you would like to discuss your options, 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!
Introduction
As you probably know, most legal disputes end in settlement. Sure, plenty go to trial, but in most cases the parties reach some kind of agreement that everyone is unhappy with, but figure is better than taking the gamble of actually going to court. There are many reasons to accept or not accept a settlement, and I may go into those in another post, but today I plan to tackle another subject. Once you've settled, how do you actually implement that settlement?
The reality is, there are numerous ways to implement a settlement, but there are three I want to cover today because, in my experience, the vast majority of settlements I am involved in take one of these three approaches. They are, specifically, a signed settlement agreement, a settlement by action, and a confession of judgment note.
Signed Settlement Agreements
A signed settlement agreement is exactly what it sounds like - a written agreement signed by all parties (or, in some cases, their attorneys). The agreement will usually include a waiver of the right to bring a suit (or dismissal of a currently active suit), and terms. It will usually supersede any agreement that was the basis of the original dispute, and will usually prevent the original dispute from ever being disputed in court.
So, as you can imagine, the idea behind a settlement agreement is that it is an enforceable contract between the parties. A breach of the agreement, then, becomes its own basis for a lawsuit - and frequently these agreements will include attorneys' fee provisions to discourage breaches. An even stronger advantage is that in some cases (particularly divorces), the agreement can be incorporated into a court order, so you can use the court's contempt power to enforce it.
The vast majority of settlement agreements I see are implemented this way. The agreements are usually fairly clear and easy to follow, and rarely breached. The biggest disadvantage, however, is that typically a breach will leave you somewhere near square one - you still have to file a lawsuit (usually) to deal with the breach.
Settlement by Action
A settlement by action is a name I have completely made up for a fairly common occurrence. Basically, what happens is that when a lawsuit is pending, a settlement is reached where, instead of having a signed agreement, the party filing the suit simply dismisses the case with prejudice (meaning it can never be re-raised). The two circumstances where I typically see this are where the other party has paid some amount such that the amount in dispute remaining isn't worth pursuing, or where there is a counter-claim, and both parties agree to just dismiss their claims with prejudice.
This is a very informal approach to settlement so it might surprise you to know that I actually see it a lot. It tends to save many people time, and with it legal fees, which is its appeal. The down side, of course, is that there is almost no way to enforce such an agreement if someone backs out before the suit is dismissed.
Confession of Judgment Note
A confession of judgment note has, in all honesty, become my favorite means of settling a case, although it is really only good for lawsuits that are just plain lawsuits for money. A confession of judgment note is a promissory note, signed by only one party, agreeing to pay a certain amount on a certain schedule. If the payor defaults on the note, the payee can take the note to the courthouse and get a judgment automatically entered against the payor - no need for a lawsuit, trial, etc. Obviously the payor has ways to challenge the note, but as long as the underlying fact (that the payor missed a payment) is true, those challenges usually fail.
This may sound very one-sided - how does the payor enforce the note against the payees, for example - but the beauty of a note is that as long as you have the provisions required by law in there, you can add pretty much anything. When I draft a confession of judgment note settling a case I include all the payer's obligations, yes, but I also include what I call a "consideration" section. This section outlines what all the payees have to do in order for the note to be enforceable. If the payees do not do something they are supposed to, the note itself becomes invalid, and the payor no longer needs to make payments.
I have found that confession of judgment notes are usually very good at making both parties compliant. If the payees fail to comply, they lose a source of guaranteed payment, and usually have no way to re-raise their initial lawsuit (usually the consideration section requires them to have dismissed their ongoing lawsuit with prejudice, or signed a waiver of their right to bring a suit, and that provision is almost never violated, since it would mean they had negotiated in bad faith, so the other provisions of the consideration section likely won't apply until the payees have already lost their right to bring a new claim). This means the payees will end up getting far less than if they had followed their obligations since the payor can stop paying and they would have nothing they could do about it.
If the payor fails to comply, on the other hand, a judgment is automatically entered without a trial, and garnishment can begin after 21 days. Further, usually a confession of judgment note settlement will actually have the payor owe the payee the full amount the payee was seeking, but then have the remaining amount waived once the payor has paid a certain amount without a default. As a result, the payor will end up owing far more in case of a breach than the payor would have paid if the payor had not breached.
Conclusion
If you are in a dispute that you want to settle, it is often hard to tell what the best settlement method may be. An attorney can help you figure that out, and help you make sure that all documents are crafted properly under the law (especially confessions of judgment, which have many legal traps). If you would like to discuss your options, 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!
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