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.
Note: Normally Tuesdays are days where I use "classic" blog posts, but since I will be out of town on Thursday, my normal posting day, I am writing a new post today.
Introduction
Unfortunately, sometimes family relationships fall apart. The field of family law wouldn't exist if that weren't the case. While entire tomes can be written about what happens when a marriage falls apart, or a relationship between two people with children, little is discussed - and as a result, little is publicly known - about what happens when a relationship between other family members falls apart. If you and your sister aren't speaking, can she force you to let her spend time with your kids? What about if you and your parents have a falling out over how to discipline your child? What rights do they have? What rights do you have? In today's blog post, I hope to cover some of the issues that come up in terms of custody/visitation rights for non-parent family members of a child.
Virginia Law
Virginia law lays out some very clear rules for custody and visitation - and includes provisions for custody and visitation for non-parents. For some time, Virginia law has stated "As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest." This is found in Virginia Code Section 20-124.2(B). Further, in finding the best interests of the child, the court must consider the factors laid out in Virginia Code Section 20-124.3.
On its face, then, Virginia law would seem fairly liberal with allowing custody and visitation for non-parents. Any party with a "legitimate interest" (defined in Virginia Code Section 20-124.1 as, basically, any adult family member) may get court ordered custody or visitation by proving by "clear and convincing evidence" that such an arrangement is in the child's best interest. So, it would seem that the only difference between a non-parent and a parent is that a parent only needs to meet a "preponderance of the evidence" standard of proof (also known as "more likely than not" or "50% + 1") of the child's best interest, while the non-parent must meet the tougher "clear and convincing evidence" standard - but otherwise the analysis is similar. However, our analysis actually does not stop with the law itself.
Constitutional Law
Since at least the 1920's, the Supreme Court has considered there to be a great deal of constitutional rights involved with parenting. Most importantly, the Supreme Court has recognized a constitutional right for parents to generally make decisions regarding the welfare of their child. In 2000, a US Supreme Court case coming out of Washington applied this principle to visitation by non-parents, stating the parents have the right to decide who their child interacts with, so long as that decision does not harm the child. In other words, that visitation would be in the child's best interest is not enough to overcome the parents' constitutional right to make that decision.
This ruling shook up many state law regimes that allowed for non-parent visitation, including Virginia. While Virginia has never formally amended its law, the law is not applied as written, since it must conform to the US Supreme Court ruling. The result is that Virginia courts have ruled that the "actual harm" standard applies to visitation cases against the unified opposition of parents. So, you might be thinking, what does that mean?
"Actual Harm" Standard
The actual harm standard is exactly what it sounds like. It is on the parties seeking visitation to prove that the child is suffering "actual harm" from not having the visitation. This is a much tougher standard than the "best interest" standard since going against a child's best interests usually merely deprives the child of potential benefits, rather than actually harming the child. Usually a party in such cases must call a medical doctor or psychologist to prove the actual harm, or show a noticeable decrease in grades or other problems since visitation ended. Merely losing out on a relationship with family members is not considered actual harm.
Unified vs. Non-Unified Opposition
An interesting wrinkle in this, however, is that in order for the actual harm standard to apply, both parents must oppose the visitation. If only one parent does, then the parents are not making a joint parenting decision, so the constitutional principles don't apply and the rule reverts to the best interest standard as laid out in Virginia law. The parent not objecting only has to have parental rights - he or she does not have to have any custodial rights at all. In other words, the objecting parent could have both sole legal and physical custody, but as long as the non-objecting parent's parental rights have not been terminated, that parent's non-objection is enough to make the opposition not be unified.
So, What About Custody?
Now, all of the above is about visitation for non-parents - but what about if the non-parent wants to go the full 9 yards and actually get custody of the child? Well, the US Supreme Court case actually only applied to visitation. While the constitutional right of parents to raise their children have long been recognized, there is a competing right of a child to be raised in a good environment. The result is that the "actual harm" standard is not used in custody cases in most states, and until the US Supreme Court gives clarity on the issue, different states use different rules.
In Virginia, custody for a non-parent is judged under a two-prong test. First, there is the portion of the above-quoted section that requires the court to "give due regard to the primacy of the parent-child relationship." This has been interpreted by Virginia Courts to mean that there is a legal presumption that it is in the child's best interest for a parent to have custody, and only if this presumption is overcome can the court then move to the second prong and analyze the best interests of the child under the factors of Section 20-124.3.
Surprisingly, however, there just aren't that many cases in Virginia where this comes up, so the details of these rules are still being fleshed out. For example, the Court of Appeals has left open the possibility several times that the "primacy of the parent-child relationship" requires the "parental presumption" to be rebutted only upon a showing of actual harm to the child (so, applying the "actual harm" standard to custody cases), but it has not actually ruled whether or not this is the case.
The best guidance we have right now, then, comes from a 2009 ruling in the Virginia Supreme Court which laid out five situations in which the parental presumption can be rebutted: (1) parental unfitness; (2) a previous order of divestiture; (3) voluntary relinquishment of custody; (4) abandonment; and (5) special facts and circumstances constituting an "extraordinary reason" to take a child away from his or her parents.
The result is that today most (but not all) trial courts assume that the actual harm standard does apply, and will not grant custody to a non-parent unless one of the five factors above is proven by clear and convincing evidence, and that factor also indicates that there would be actual harm to the child in not overcoming the parental presumption.
Modifying Existing Orders
Now, as most people know, once a custody and visitation order is entered, that's not the end of the story. Modifications are quite common over the course of the child's life, and back when I still practiced custody, I would sometimes have custodial non-parents ask me "gee, am I going to have to prove this stuff every time?" The courts, however, are reasonable about this. Once the parental presumption has been overcome for custody, or the actual harm standard has been met for visitation, it actually becomes the parents' burden to prove in a modification hearing that the parental presumption is no longer overcome or there would no longer be actual harm to the child in denying visitation. The parents can only rarely meet that test once a court has initially made a contrary ruling, since most courts will believe (reasonably) that if a non-parent has had custody or visitation for some time, suddenly taking that away would be harmful. The end result is that most modifications in these cases end up being just about the child's best interests.
Conclusion
Custody and visitation rights for non-parents is one of the more complicated aspects of family law. If you are in a case involving a non-parent seeking custody or visitation (or if you, yourself, are that non-parent), it would be a good idea to have an attorney. If you'd like to discuss your case with an attorney at my office, 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, September 23, 2014
Friday, September 19, 2014
Virginia Child Support Myths vs. Reality
As always, before reading today's blog post please review my disclaimer by clicking on the link above or by following this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Having practiced child support law for a few years now, I'm always amazed at the ideas clients have about child support when they walk in the door. When I dig deeper, I discover that some of these ideas have a good basis but have just been taken too far, while others are driven by the false claims of a desperate opponent. Regardless of the root cause, however, there are many myths floating out there about child support law, and I hope to address some of them today.
This blog post will take a "myth"/"reality" format. I will present a common child support myth I encounter, then I will present a 1-2 sentence summary of the reality. I will follow that up with a more detailed explanation, but if you're reading this post in a hurry, the key facts will be in those 1-2 sentence summaries.
Myth: If I make too much money and the non-custodial parent makes too little, I could end up paying him, so I shouldn't take the risk and seek child support.
Reality: There is no situation in which a custodial parent has to pay monthly child support to a non-custodial parent. In fact, there's a minimum amount the non-custodial parent must pay regardless of the parents' relative incomes.
This myth almost always comes from a non-custodial parent trying to intimidate a custodial parent, but it's just not true. Child support is owed by the non-custodial parent to the custodial parent, never the other way around. In fact, there is a minimum child support obligation of $68 per month, although the court can waive that in certain instances. There are, however, some important things to understand.
First, under child support law, "custodial parent" has a specific definition - a parent who has custody of the kid(s) for 276 or more days per year (a day generally being defined as a 24 hour period). If both parents have the kids for more than 90 days, you have what is called a "shared custody" arrangement for child support purposes, and then it is possible for the parent who has the kid(s) more to have to pay support to the parent who has the kid(s) less if the incomes are grossly disproportionate. That being said, the share of custody is a big factor in the shared custody guidelines - so it's still pretty unusual unless the number of days each parent has is pretty close to each other. You can see more details about how the child support guidelines work in my post here.
Second, if child support has previously been ordered and is being modified, the modification can be made retroactive to the date that the motion to modify was filed. This means if child support gets reduced, the custodial parent could owe an arrearage to the non-custodial parent to represent the retroactive application - but this is not a monthly support obligation, and once that amount is paid off, the non-custodial parent is still the one paying the support.
Myth: There is no statute of limitations to collecting back child support, so I don't need to hurry to get it done.
Reality: You must file an action to collect an arrearage, or get a motion to extend the limitations period granted, within 20 years from the missed payment you are seeking to collect.
First of all, we need to be clear what I am talking about. Child support in Virginia is inherently prospective. You can only collect child support from the date you file your petition forward. If you wait until the kid is 7 to file for child support, you can't then collect support for the kid's first 6 years of life. So, a statute of limitations is not applicable, since you cannot collect support from prior to when you file for it. What I am speaking of here is child support that has been ordered to be paid, but which the payor never actually paid.
This is a myth that actually has a good basis for it. Child support is part of family law, which is an "equitable" area of law (you can read more about common law cases vs. equity cases in my post about contract law here). As is typically the case with equity, there is no specific statute of limitations prescribed for child support arrearages. However, in most equity cases, there is a doctrine called "laches" which says you cannot file an equitable claim if you've waited an "unreasonable" amount of time and that delay has prejudiced the other party. Decades ago (in the 1960's), the Virginia Supreme Court ruled that decrees, including support orders, that have already vested (the payment order date has passed) cannot be altered by equitable doctrines - in other words, the doctrine of laches does not apply to collection of back child support under Virginia law.
So, for many years, we were in a situation where child support had no statute of limitations, and no doctrine of laches - meaning people could wait for decades to bring child support arrearage cases. Then a gentleman named Edward Adcock was sued by his ex-wife in 2006 for back child support payments that were due from 1967 to 1982. His attorney turned to a provision of Virginia law added decades ago that treats all unpaid child support as judgments upon their due date. This law was passed to allow the collection of interest on support arrearages, as well as garnishments and other measures associated with judgments. His attorney then pointed out that Virginia Code Section 8.01-251 places a statute of limitations of 20 years on the collection of judgments, unless prior to the expiration of that period a court grants a motion ("for good cause shown") extending the period for another 20 years. Since Adcock's payments were all more than 20 years old - and his ex-wife had filed no motion for an extension - his attorney argued the case should be dismissed. The trial judge and Court of Appeals disagreed for reasons I won't get into here, but in 2011, the Virginia Supreme Court reversed and ruled that yes, that statute applies.
So, the short story is, the 20 year judgment statute of limitations now applies to child support arrearages. This has been a big change in Virginia child support law, and many attorneys are still catching up with it, but the statute is clearly there now.
Myth: I should represent myself in a child support case, since it's really a simple matter of plugging numbers into a formula.
Reality: Child support is unfortunately much more complicated than the guidelines would lead you to believe, and you are setting yourself up for a disaster if you go in without an attorney.
On its face, the existence of the child support guidelines would seem to indicate you don't really need an attorney to represent you - the guideline call for numbers to be plugged in, and that's it. But what if your ex is unemployed or underemployed intentionally, or just isn't making an effort to get a job - how do you plan to prove what he should be making? What if your ex is hiding income - how do you plan to prove it? What if your work-related child care varies each month - or your ex contests that you don't actually need it at all? Are you aware of the legal principles that apply to work-related child care?
The fact is, every single number that goes into the guidelines has potential grounds for dispute and legal principles behind how to calculate those numbers. On top of that, there are a whole list of reasons why the court can deviate from the child support guidelines, which may require further argument.
An attorney will be best equipped to handle all possible disputes that can arise in a child support context, and like any legal dispute, you're better off with an attorney than without one.
Myth: I also don't need an attorney for child support since I can get it done for free with DCSE.
Reality: If you just go through DCSE you could be in for a long wait and unreasonable results. An attorney can get you support faster, and more accurately.
DCSE is a bureaucracy. Don't get me wrong, it serves a very important function - especially for people who really cannot afford attorneys - but it suffers from the problems that most bureaucracies do. Those being that they are generally slow, inefficient, and often ineffective.
I send people to DCSE in one situation only - the non-custodial parent does not live in Virginia, and Virginia cannot claim personal jurisdiction over that person. In those cases, DCSE, while slow, is the best way to go because they can work with their counter-part in the state in which the non-custodial parent lives to get support set up with minimal hassle to the custodial parent.
If, however, the non-custodial parent lives in Virginia, or Virginia can claim jurisdiction over him, then I pretty much always say we should just go to court and get an order. Opening a case with DCSE can take time - I've seen it take as long as a year - but in court, you can get support to start the day you file (now, it won't actually start that day, but whenever support is ordered, either pendente lite or permanent, it can be made retroactive to the day you filed). Additionally, we can usually get a pendente lite hearing within a few weeks, so you can get at least an initial court order for support within a couple months of filing, and start collecting then. These are not timelines that DCSE can realistically provide for you.
Myth: I don't need an attorney because DCSE has filed for a child support modification on my behalf.
Reality: DCSE does not represent you, and will not engage in the kind of litigation preparation an attorney would.
It is not uncommon for someone to use an attorney to start child support, but then make the collection of that support a DCSE responsibility (a valuable option, since DCSE can get the support directly from the non-custodial parent's paycheck). In such cases, DCSE can also file with the court to amend the support order whenever an amendment appears warranted, but if either parent objects to the amendment, then a hearing has to be held.
In such cases, even if DCSE is seeking to increase the support, you really need your own attorney. DCSE usually does not conduct discovery, and usually is not in a position to prove voluntary under or unemployment. There is simply no way for the DCSE attorney to know the nuances of your case, and since DCSE represents itself, not you, it is unlikely you will be able to get an appointment with the DCSE attorney to discuss those nuances.
Even in DCSE cases, both parties are well advised to have an attorney for all the same reasons as they would be if DCSE was not involved.
Myth: I don't have to let my ex have visitation if he is behind on child support.
Reality: Child support orders and custody/visitation orders are unrelated - even if you had an agreed order entered that made the two related, that relation will be unenforceable. You can never withhold visitation due to non-payment of support, and you can never withhold support due to the other parent's failure to provide visitation.
I did an entire blog post on this one, so the best place to get the details is by reading that post.
Conclusion
These are not nearly all of the myths I encounter, but are by far the most common. If you are involved in a child support case and have heard any of the myths above, or have any other questions or concerns, talk to an attorney. You can set up a consultation with us by calling (703)281-0134 or by e-mailing me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
Introduction
Having practiced child support law for a few years now, I'm always amazed at the ideas clients have about child support when they walk in the door. When I dig deeper, I discover that some of these ideas have a good basis but have just been taken too far, while others are driven by the false claims of a desperate opponent. Regardless of the root cause, however, there are many myths floating out there about child support law, and I hope to address some of them today.
This blog post will take a "myth"/"reality" format. I will present a common child support myth I encounter, then I will present a 1-2 sentence summary of the reality. I will follow that up with a more detailed explanation, but if you're reading this post in a hurry, the key facts will be in those 1-2 sentence summaries.
Myth: If I make too much money and the non-custodial parent makes too little, I could end up paying him, so I shouldn't take the risk and seek child support.
Reality: There is no situation in which a custodial parent has to pay monthly child support to a non-custodial parent. In fact, there's a minimum amount the non-custodial parent must pay regardless of the parents' relative incomes.
This myth almost always comes from a non-custodial parent trying to intimidate a custodial parent, but it's just not true. Child support is owed by the non-custodial parent to the custodial parent, never the other way around. In fact, there is a minimum child support obligation of $68 per month, although the court can waive that in certain instances. There are, however, some important things to understand.
First, under child support law, "custodial parent" has a specific definition - a parent who has custody of the kid(s) for 276 or more days per year (a day generally being defined as a 24 hour period). If both parents have the kids for more than 90 days, you have what is called a "shared custody" arrangement for child support purposes, and then it is possible for the parent who has the kid(s) more to have to pay support to the parent who has the kid(s) less if the incomes are grossly disproportionate. That being said, the share of custody is a big factor in the shared custody guidelines - so it's still pretty unusual unless the number of days each parent has is pretty close to each other. You can see more details about how the child support guidelines work in my post here.
Second, if child support has previously been ordered and is being modified, the modification can be made retroactive to the date that the motion to modify was filed. This means if child support gets reduced, the custodial parent could owe an arrearage to the non-custodial parent to represent the retroactive application - but this is not a monthly support obligation, and once that amount is paid off, the non-custodial parent is still the one paying the support.
Myth: There is no statute of limitations to collecting back child support, so I don't need to hurry to get it done.
Reality: You must file an action to collect an arrearage, or get a motion to extend the limitations period granted, within 20 years from the missed payment you are seeking to collect.
First of all, we need to be clear what I am talking about. Child support in Virginia is inherently prospective. You can only collect child support from the date you file your petition forward. If you wait until the kid is 7 to file for child support, you can't then collect support for the kid's first 6 years of life. So, a statute of limitations is not applicable, since you cannot collect support from prior to when you file for it. What I am speaking of here is child support that has been ordered to be paid, but which the payor never actually paid.
This is a myth that actually has a good basis for it. Child support is part of family law, which is an "equitable" area of law (you can read more about common law cases vs. equity cases in my post about contract law here). As is typically the case with equity, there is no specific statute of limitations prescribed for child support arrearages. However, in most equity cases, there is a doctrine called "laches" which says you cannot file an equitable claim if you've waited an "unreasonable" amount of time and that delay has prejudiced the other party. Decades ago (in the 1960's), the Virginia Supreme Court ruled that decrees, including support orders, that have already vested (the payment order date has passed) cannot be altered by equitable doctrines - in other words, the doctrine of laches does not apply to collection of back child support under Virginia law.
So, for many years, we were in a situation where child support had no statute of limitations, and no doctrine of laches - meaning people could wait for decades to bring child support arrearage cases. Then a gentleman named Edward Adcock was sued by his ex-wife in 2006 for back child support payments that were due from 1967 to 1982. His attorney turned to a provision of Virginia law added decades ago that treats all unpaid child support as judgments upon their due date. This law was passed to allow the collection of interest on support arrearages, as well as garnishments and other measures associated with judgments. His attorney then pointed out that Virginia Code Section 8.01-251 places a statute of limitations of 20 years on the collection of judgments, unless prior to the expiration of that period a court grants a motion ("for good cause shown") extending the period for another 20 years. Since Adcock's payments were all more than 20 years old - and his ex-wife had filed no motion for an extension - his attorney argued the case should be dismissed. The trial judge and Court of Appeals disagreed for reasons I won't get into here, but in 2011, the Virginia Supreme Court reversed and ruled that yes, that statute applies.
So, the short story is, the 20 year judgment statute of limitations now applies to child support arrearages. This has been a big change in Virginia child support law, and many attorneys are still catching up with it, but the statute is clearly there now.
Myth: I should represent myself in a child support case, since it's really a simple matter of plugging numbers into a formula.
Reality: Child support is unfortunately much more complicated than the guidelines would lead you to believe, and you are setting yourself up for a disaster if you go in without an attorney.
On its face, the existence of the child support guidelines would seem to indicate you don't really need an attorney to represent you - the guideline call for numbers to be plugged in, and that's it. But what if your ex is unemployed or underemployed intentionally, or just isn't making an effort to get a job - how do you plan to prove what he should be making? What if your ex is hiding income - how do you plan to prove it? What if your work-related child care varies each month - or your ex contests that you don't actually need it at all? Are you aware of the legal principles that apply to work-related child care?
The fact is, every single number that goes into the guidelines has potential grounds for dispute and legal principles behind how to calculate those numbers. On top of that, there are a whole list of reasons why the court can deviate from the child support guidelines, which may require further argument.
An attorney will be best equipped to handle all possible disputes that can arise in a child support context, and like any legal dispute, you're better off with an attorney than without one.
Myth: I also don't need an attorney for child support since I can get it done for free with DCSE.
Reality: If you just go through DCSE you could be in for a long wait and unreasonable results. An attorney can get you support faster, and more accurately.
DCSE is a bureaucracy. Don't get me wrong, it serves a very important function - especially for people who really cannot afford attorneys - but it suffers from the problems that most bureaucracies do. Those being that they are generally slow, inefficient, and often ineffective.
I send people to DCSE in one situation only - the non-custodial parent does not live in Virginia, and Virginia cannot claim personal jurisdiction over that person. In those cases, DCSE, while slow, is the best way to go because they can work with their counter-part in the state in which the non-custodial parent lives to get support set up with minimal hassle to the custodial parent.
If, however, the non-custodial parent lives in Virginia, or Virginia can claim jurisdiction over him, then I pretty much always say we should just go to court and get an order. Opening a case with DCSE can take time - I've seen it take as long as a year - but in court, you can get support to start the day you file (now, it won't actually start that day, but whenever support is ordered, either pendente lite or permanent, it can be made retroactive to the day you filed). Additionally, we can usually get a pendente lite hearing within a few weeks, so you can get at least an initial court order for support within a couple months of filing, and start collecting then. These are not timelines that DCSE can realistically provide for you.
Myth: I don't need an attorney because DCSE has filed for a child support modification on my behalf.
Reality: DCSE does not represent you, and will not engage in the kind of litigation preparation an attorney would.
It is not uncommon for someone to use an attorney to start child support, but then make the collection of that support a DCSE responsibility (a valuable option, since DCSE can get the support directly from the non-custodial parent's paycheck). In such cases, DCSE can also file with the court to amend the support order whenever an amendment appears warranted, but if either parent objects to the amendment, then a hearing has to be held.
In such cases, even if DCSE is seeking to increase the support, you really need your own attorney. DCSE usually does not conduct discovery, and usually is not in a position to prove voluntary under or unemployment. There is simply no way for the DCSE attorney to know the nuances of your case, and since DCSE represents itself, not you, it is unlikely you will be able to get an appointment with the DCSE attorney to discuss those nuances.
Even in DCSE cases, both parties are well advised to have an attorney for all the same reasons as they would be if DCSE was not involved.
Myth: I don't have to let my ex have visitation if he is behind on child support.
Reality: Child support orders and custody/visitation orders are unrelated - even if you had an agreed order entered that made the two related, that relation will be unenforceable. You can never withhold visitation due to non-payment of support, and you can never withhold support due to the other parent's failure to provide visitation.
I did an entire blog post on this one, so the best place to get the details is by reading that post.
Conclusion
These are not nearly all of the myths I encounter, but are by far the most common. If you are involved in a child support case and have heard any of the myths above, or have any other questions or concerns, talk to an attorney. You can set up a consultation with us by calling (703)281-0134 or by e-mailing me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
Thursday, September 11, 2014
Virginia Law and the Blog Part II - More Common Questions About Past Blog 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 herein apply only to the Commonwealth of Virginia.
Introduction
About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written. I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had. I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post. To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.
As I said last time, sit back, relax, and see what you can learn from the questions of others.
"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees. Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up. I just had a consult with a lawyer who charges a 'refundable retainer.' What is that?"
Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy. It sounds like that's what's happening here - the lawyer is actually charging a fee deposit. That being said, I cannot be certain without reviewing the actual fee agreement. It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully. Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.
"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to. Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip. I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones. What should I do?"
No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous. The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable. I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client. In smaller communities, however, this happens regularly.
Here's the thing to remember - the other lawyer can talk to you about anything other than the case. Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you. He won't want his son's field trip ruined any more than you want your daughter's. This is also a good time to remember that while your case is your life, for the lawyer it's his job. No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.
If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case. If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc. Just use common sense, the lawyer will do the same, and you should probably be all right. Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.
"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only. You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete. Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me. Do I have any other options?"
Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order. I lay out the procedures for pursuing a protective order in a post from April. Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member." The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning. If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years. During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.
The down side to this approach, however, is that you actually have to have some evidence that you are in danger. Just an underlying fear or intuition isn't good enough. A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order. Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.
"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest. What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"
It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them. There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.
The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000. So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage. Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event. Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.
To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills. To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.
"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien). Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago. I didn't know at the time, and he didn't list my debt on his petition. What is the status of my judgment?"
Well, the bankruptcy code puts a lot of burden on the creditor. If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged. If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed. Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.
Conclusion
As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future. As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post. If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation. Our initial consultations are free for up to half an hour!
Introduction
About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written. I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had. I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post. To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.
As I said last time, sit back, relax, and see what you can learn from the questions of others.
"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees. Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up. I just had a consult with a lawyer who charges a 'refundable retainer.' What is that?"
Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy. It sounds like that's what's happening here - the lawyer is actually charging a fee deposit. That being said, I cannot be certain without reviewing the actual fee agreement. It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully. Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.
"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to. Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip. I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones. What should I do?"
No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous. The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable. I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client. In smaller communities, however, this happens regularly.
Here's the thing to remember - the other lawyer can talk to you about anything other than the case. Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you. He won't want his son's field trip ruined any more than you want your daughter's. This is also a good time to remember that while your case is your life, for the lawyer it's his job. No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.
If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case. If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc. Just use common sense, the lawyer will do the same, and you should probably be all right. Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.
"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only. You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete. Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me. Do I have any other options?"
Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order. I lay out the procedures for pursuing a protective order in a post from April. Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member." The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning. If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years. During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.
The down side to this approach, however, is that you actually have to have some evidence that you are in danger. Just an underlying fear or intuition isn't good enough. A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order. Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.
"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest. What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"
It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them. There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.
The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000. So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage. Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event. Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.
To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills. To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.
"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien). Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago. I didn't know at the time, and he didn't list my debt on his petition. What is the status of my judgment?"
Well, the bankruptcy code puts a lot of burden on the creditor. If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged. If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed. Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.
Conclusion
As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future. As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post. If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation. Our initial consultations are free for up to half an hour!
Wednesday, September 3, 2014
A Brief Primer on Virginia Rules of Evidence - Or, How Not to Lose Before You Walk in the Courtroom
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
Since starting this blog I have lost count of the number of e-mails I have received saying, "Hey, I took your blog's advice to do x, but I lost because of y - what's your opinion of what happened?" First, let me be crystal clear. As it says in my disclaimer, and at the top of each and every page of my blog, this blog is not advice. It is a presentation of how, from my perspective, things work in the legal world in Virginia. It is general information - I cannot predict every situation that might come up, and so the odds are very high that there is something about your case that makes the general information applicable, yes, but also incomplete. Please do not take my blog posts as advice - except for the one piece of advice I always give: hire an attorney, or at least speak to one.
Now, with that out of the way, 9 times out of 10 I've found that I have to agree with the judge that the person should have lost. While there have been exceptions, the vast majority of times that this is the case, it is because the judge wouldn't look at the person's evidence - and I have to agree that the judge was right, because the person did violate the rules of evidence. This is one more reason that it's so important to have an attorney - an attorney will save you from these pitfalls. If your opponent has an attorney, this is especially true. Attorneys know that pro se parties rarely know the rules of evidence, and will take advantage of that fact at trial - something they are perfectly allowed to do. Heck, it's something I've done myself, and then wrote about on this blog.
To that end, I feel like it's necessary to cover some of the basics of the Virginia Rules of Evidence. Note, however, that I cannot hope to cover nearly all of the rules in one blog post (or even several), so my advice remains to have an attorney represent you in court. Nonetheless, with the information on this blog you can hopefully avoid at least some of the pitfalls of not knowing the rules of evidence - and maybe even figure out when to object if your opponent violates the rules.
Where to Find the Rules
You, my friend, are currently living in a Golden Age in terms of evidence rules in Virginia. Why? Because back when I started practicing law, Virginia had no set rules of evidence (unlike basically every other state, plus the federal courts). All we had was a disconnected mish-mash of statutes and common law rules that we basically had to memorize. In 2012, however, that all changed when the Virginia General Assembly adopted the Virginia Rules of Evidence. The Rules are now entirely collected in Part 2 of the Rules of the Supreme Court of Virginia. The Rules as adopted tried to incorporate the rules as they previously existed, although some minor changes were made, but the revolutionary component was that now the rules are all in one place, so someone can go and learn them.
Hearsay
So, by far the most common complaint I hear is about application of the rule against hearsay. Most people know that hearsay is inadmissible, but almost no one outside the legal profession seems to know what hearsay is. Hearsay, quite simply, is any statement made by any person, unless it is made by that person on the witness stand while testifying at the trial, when that statement is offered as evidence to prove the truth of the matter asserted.
So, there's a lot in there to break down. First, what's a statement? A statement is defined in Virginia rules as "an oral or written assertion" or "nonverbal conduct of a person, if it is intended as an assertion." In other words, something is a statement if it asserts that something is true.
Now, what does it mean that the statement is "offered as evidence to prove the truth of the matter asserted"? It means a statement is not hearsay if the content of the statement is relevant for some reason other than the truth of the matter asserted in the statement. In other words, if the statement is just as relevant and important if the statement is a lie as it would be if it were true, then it is not hearsay.
This is a confusing point for many people, so I'll take two examples. The first is one we learned about in law school. Some time ago there was a plane crash with a husband and wife aboard. Both died, but it was important to establish who died first for the purposes of distributing the couple's assets in inheritance. A police officer testified that when he went to the scene the wife was dead, but the husband told him "I'm alive." There was a hearsay objection that was actually sustained, but this was overturned on appeal. Why? Because it didn't matter whether the statement was true or not. The husband's statement could have been "I'm Genghis Khan back to rule my Empire" and it would have been just as relevant. The fact that the husband made a statement at all meant he was alive and the content of the statement was thus irrelevant, so it was not hearsay.
A second example would be where you are accused of fraud for claiming in a loan application that you had more money than you actually had. If you present a statement from your financial advisor saying that you had the higher amount of money, that statement should not be subject to a hearsay objection because whether or not the statement was true (and in this case, it wasn't) is not important - the fact that you had this statement, so you believed it, provides evidence on its own that you did not have the necessary intent to commit fraud.
Exceptions to Hearsay Rule
So, now that you hopefully have a better understanding of hearsay, you might be wondering how all sorts of evidence you hear about ever gets into evidence. Well, that's because there are a large number of exceptions to the hearsay rule - in other words, situations where a statement is hearsay, but is still admissible.
The Virginia Rules of Evidence separately list 29 exceptions, but if you read each one, many of them have separate exceptions as well. Here are some of the most important for you to know:
A Brief Word About Double Hearsay
We often encounter in law "double hearsay" or "hearsay within hearsay." The easy breakdown of this is that direct testimony is saying "I saw Tommy do it," while hearsay is "Dave told me he saw Tommy do it." Well, double hearsay would be, "John told me that Dave told him that he saw Tommy do it." So, how do you handle double hearsay? You have to look at each hearsay component and decide if an exception applies. If it applies to both (for example, a business record quoted an opposing party admission), then it's still admissible. If either one of the hearsay examples, however, does not fit an exception (for example, a business record quotes prior testimony where the person giving that testimony is available to testify at the current trial, or a police report quotes an opposing party admission), then the double hearsay is not admissible.
Authentication of Evidence
Most situations where a party has failed to understand the rules of evidence fall in the above category, but I occasionally find that a person has, in fact, found an exception but still didn't get their evidence admitted because it was not properly authenticated. So, what is authentication? Authentication is the requirement that evidence must be sufficiently proven to actually be what it is before it can be admitted. For example, the letter showing your job offer which you introduce to prove your income may be a business record, but your word alone is not sufficient authentication that this is actually your employer's business record - only your employer's testimony or an affidavit can meet this condition.
In other words, it is not enough to make sure your evidence does not violate any of the rules that would exclude it - you must also make sure you can authenticate it, that you can prove that it is what you say it is. Otherwise, it will not be admitted. That all being said, some documents are what we call "self-authenticating," meaning that as long as certain conditions are met, no further authentication is necessary. A full list of such documents can be found in Rule 2:902, but some of them are public records which are certified in the manner required by law, medical records and bills in certain cases where certain conditions are met, and business records where the custodian of records has signed an affidavit confirming the authenticity of the documents and no objection has been filed to the affidavit.
Settlement Discussion
The other problem I see people encounter, although much less frequent than problems with hearsay or authentication, is the presentation of settlement discussions. I see quite often with pro se parties they want to tell the judge "well, I offered to do this, and they wouldn't even do that!" to try to prove how unreasonable the other side is. Well, the courts decided long ago that settlements will be much harder to have happen if the statements made while negotiating them could then be used against the parties. As a result, offers and responses in the course of settlement negotiations are not admissible evidence.
There are two key exceptions to the above. If, in the course of settlement negotiations, you actually admit you are liable, then that admission (and only that admission) becomes admissible. Also, where attorneys' fees are collectible by one or both parties, the settlement negotiations may be admitted as evidence as to whether or not the attorneys' fees are reasonable (as unreasonably refusing a good settlement offer may make your trial fees unreasonable), but in such cases that is all that the negotiations can be considered for.
Conclusion
For many people who represent themselves at trial, their biggest pitfall is the rules of evidence. With this blog post, I hope you understand at least some of the complex panoply of rules you will face if you go to court alone. This is yet another reason why you should almost always try to have an attorney. If you are facing a civil trial and recognize that you don't understand the rules of evidence well enough to protect yourself, 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
Since starting this blog I have lost count of the number of e-mails I have received saying, "Hey, I took your blog's advice to do x, but I lost because of y - what's your opinion of what happened?" First, let me be crystal clear. As it says in my disclaimer, and at the top of each and every page of my blog, this blog is not advice. It is a presentation of how, from my perspective, things work in the legal world in Virginia. It is general information - I cannot predict every situation that might come up, and so the odds are very high that there is something about your case that makes the general information applicable, yes, but also incomplete. Please do not take my blog posts as advice - except for the one piece of advice I always give: hire an attorney, or at least speak to one.
Now, with that out of the way, 9 times out of 10 I've found that I have to agree with the judge that the person should have lost. While there have been exceptions, the vast majority of times that this is the case, it is because the judge wouldn't look at the person's evidence - and I have to agree that the judge was right, because the person did violate the rules of evidence. This is one more reason that it's so important to have an attorney - an attorney will save you from these pitfalls. If your opponent has an attorney, this is especially true. Attorneys know that pro se parties rarely know the rules of evidence, and will take advantage of that fact at trial - something they are perfectly allowed to do. Heck, it's something I've done myself, and then wrote about on this blog.
To that end, I feel like it's necessary to cover some of the basics of the Virginia Rules of Evidence. Note, however, that I cannot hope to cover nearly all of the rules in one blog post (or even several), so my advice remains to have an attorney represent you in court. Nonetheless, with the information on this blog you can hopefully avoid at least some of the pitfalls of not knowing the rules of evidence - and maybe even figure out when to object if your opponent violates the rules.
Where to Find the Rules
You, my friend, are currently living in a Golden Age in terms of evidence rules in Virginia. Why? Because back when I started practicing law, Virginia had no set rules of evidence (unlike basically every other state, plus the federal courts). All we had was a disconnected mish-mash of statutes and common law rules that we basically had to memorize. In 2012, however, that all changed when the Virginia General Assembly adopted the Virginia Rules of Evidence. The Rules are now entirely collected in Part 2 of the Rules of the Supreme Court of Virginia. The Rules as adopted tried to incorporate the rules as they previously existed, although some minor changes were made, but the revolutionary component was that now the rules are all in one place, so someone can go and learn them.
Hearsay
So, by far the most common complaint I hear is about application of the rule against hearsay. Most people know that hearsay is inadmissible, but almost no one outside the legal profession seems to know what hearsay is. Hearsay, quite simply, is any statement made by any person, unless it is made by that person on the witness stand while testifying at the trial, when that statement is offered as evidence to prove the truth of the matter asserted.
So, there's a lot in there to break down. First, what's a statement? A statement is defined in Virginia rules as "an oral or written assertion" or "nonverbal conduct of a person, if it is intended as an assertion." In other words, something is a statement if it asserts that something is true.
Now, what does it mean that the statement is "offered as evidence to prove the truth of the matter asserted"? It means a statement is not hearsay if the content of the statement is relevant for some reason other than the truth of the matter asserted in the statement. In other words, if the statement is just as relevant and important if the statement is a lie as it would be if it were true, then it is not hearsay.
This is a confusing point for many people, so I'll take two examples. The first is one we learned about in law school. Some time ago there was a plane crash with a husband and wife aboard. Both died, but it was important to establish who died first for the purposes of distributing the couple's assets in inheritance. A police officer testified that when he went to the scene the wife was dead, but the husband told him "I'm alive." There was a hearsay objection that was actually sustained, but this was overturned on appeal. Why? Because it didn't matter whether the statement was true or not. The husband's statement could have been "I'm Genghis Khan back to rule my Empire" and it would have been just as relevant. The fact that the husband made a statement at all meant he was alive and the content of the statement was thus irrelevant, so it was not hearsay.
A second example would be where you are accused of fraud for claiming in a loan application that you had more money than you actually had. If you present a statement from your financial advisor saying that you had the higher amount of money, that statement should not be subject to a hearsay objection because whether or not the statement was true (and in this case, it wasn't) is not important - the fact that you had this statement, so you believed it, provides evidence on its own that you did not have the necessary intent to commit fraud.
Exceptions to Hearsay Rule
So, now that you hopefully have a better understanding of hearsay, you might be wondering how all sorts of evidence you hear about ever gets into evidence. Well, that's because there are a large number of exceptions to the hearsay rule - in other words, situations where a statement is hearsay, but is still admissible.
The Virginia Rules of Evidence separately list 29 exceptions, but if you read each one, many of them have separate exceptions as well. Here are some of the most important for you to know:
- Opposing Party Admission - The short version of this is that if you are a party to a lawsuit (or a criminal trial), anything you've said can be used against you. Not for you, just against you. Of course, the reverse is true - you can use anything the other party has said against them to.
- Statement for the Purpose of Medical Treatment - Any statement you made to a doctor or anyone else for the purpose of obtaining medical treatment is admissible evidence. Note, however, this is limited to only that information necessary (or reasonably believed necessary), not extraneous information given.
- Business Records - One of the most important exceptions, this allows any documents produced by a person or business in the course of running their business and which is of a type that is usually produced by such a person or business when running their business is admissible.
- Public Records - Records of observations made by government agencies or courts, except for police reports, which do not qualify for the exception.
- Former Testimony - Any testimony previously given under oath where the party against whom the evidence is offered had the chance to cross-examine that person, and that person is not available to testify at the current trial.
- Prior Inconsistent Statements - While not listed in the hearsay exceptions, this is an important one - if a witness on the stand has previously made a contradictory statement, that statement can be brought up and used to challenge the credibility of the witness on cross-examination.
A Brief Word About Double Hearsay
We often encounter in law "double hearsay" or "hearsay within hearsay." The easy breakdown of this is that direct testimony is saying "I saw Tommy do it," while hearsay is "Dave told me he saw Tommy do it." Well, double hearsay would be, "John told me that Dave told him that he saw Tommy do it." So, how do you handle double hearsay? You have to look at each hearsay component and decide if an exception applies. If it applies to both (for example, a business record quoted an opposing party admission), then it's still admissible. If either one of the hearsay examples, however, does not fit an exception (for example, a business record quotes prior testimony where the person giving that testimony is available to testify at the current trial, or a police report quotes an opposing party admission), then the double hearsay is not admissible.
Authentication of Evidence
Most situations where a party has failed to understand the rules of evidence fall in the above category, but I occasionally find that a person has, in fact, found an exception but still didn't get their evidence admitted because it was not properly authenticated. So, what is authentication? Authentication is the requirement that evidence must be sufficiently proven to actually be what it is before it can be admitted. For example, the letter showing your job offer which you introduce to prove your income may be a business record, but your word alone is not sufficient authentication that this is actually your employer's business record - only your employer's testimony or an affidavit can meet this condition.
In other words, it is not enough to make sure your evidence does not violate any of the rules that would exclude it - you must also make sure you can authenticate it, that you can prove that it is what you say it is. Otherwise, it will not be admitted. That all being said, some documents are what we call "self-authenticating," meaning that as long as certain conditions are met, no further authentication is necessary. A full list of such documents can be found in Rule 2:902, but some of them are public records which are certified in the manner required by law, medical records and bills in certain cases where certain conditions are met, and business records where the custodian of records has signed an affidavit confirming the authenticity of the documents and no objection has been filed to the affidavit.
Settlement Discussion
The other problem I see people encounter, although much less frequent than problems with hearsay or authentication, is the presentation of settlement discussions. I see quite often with pro se parties they want to tell the judge "well, I offered to do this, and they wouldn't even do that!" to try to prove how unreasonable the other side is. Well, the courts decided long ago that settlements will be much harder to have happen if the statements made while negotiating them could then be used against the parties. As a result, offers and responses in the course of settlement negotiations are not admissible evidence.
There are two key exceptions to the above. If, in the course of settlement negotiations, you actually admit you are liable, then that admission (and only that admission) becomes admissible. Also, where attorneys' fees are collectible by one or both parties, the settlement negotiations may be admitted as evidence as to whether or not the attorneys' fees are reasonable (as unreasonably refusing a good settlement offer may make your trial fees unreasonable), but in such cases that is all that the negotiations can be considered for.
Conclusion
For many people who represent themselves at trial, their biggest pitfall is the rules of evidence. With this blog post, I hope you understand at least some of the complex panoply of rules you will face if you go to court alone. This is yet another reason why you should almost always try to have an attorney. If you are facing a civil trial and recognize that you don't understand the rules of evidence well enough to protect yourself, 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, September 2, 2014
Classic Law is Your Friend: A Basic Overview of Security Deposit Law in Virginia
Today's classic blog post discusses a very basic overview of the law surrounding security deposits in residential leases in Virginia. It was originally posted on August 15, 2013 and titled "Feeling 'In'secure - Security Deposits and the Law."
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment. Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy. However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen. Can I use my deposit as my last month of rent? How do I get my deposit back? What responsibilities does the landlord have?
Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences. This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.
VRLTA vs. Common Law
Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not. Security deposits are no different. VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant. Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself. As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.
Security Deposits Under VRLTA
Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics. First of all, the security deposit demanded cannot be more in value than two months' worth of rent. As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder. Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.
There are other provisions in there too, but those are the main ones. It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit. This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning. [An astute reader asked me after this blog entry originally posted what the value of this provision is - since the landlord could presumably still turn around and sue the tenant for the property damage. I address that question, and a number of other questions about my blog, in a recent blog post that can be found here.]
Security Deposits Under Non-VRLTA Leases
As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself. I cannot count the number of times I've had a consult with a potential client that goes like this:
Potential Client: "It's been 45 days, and I haven't heard from the landlord about my security deposit."
Me: "Well, where in the lease does it say that the landlord has 45 days?"
Potential Client: "I saw it online that it's a law."
So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.
When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease. How does the lease say that the security deposit is to be dealt with? If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline. Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow. [I will add this caveat - if the timeline is not laid out in the lease, I would actually say it's more common for non-VRLTA landlords to follow a VRLTA + 15 days timeline, but usually not much beyond that.]
But, as I said, that timeline is not manadatory. My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action. I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit. If you do not get a response, you can file suit for your security deposit. Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.
Can I Use My Security Deposit for Rent?
I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit. That covers the rent!" The short answer is, no it doesn't.
While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent. As a result, you cannot use your security deposit to pay a month of rent. For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it. For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.
In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.
Conclusion
Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases. If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. The initial consultation is free for up to half an hour!
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment. Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy. However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen. Can I use my deposit as my last month of rent? How do I get my deposit back? What responsibilities does the landlord have?
Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences. This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.
VRLTA vs. Common Law
Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not. Security deposits are no different. VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant. Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself. As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.
Security Deposits Under VRLTA
Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics. First of all, the security deposit demanded cannot be more in value than two months' worth of rent. As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder. Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.
There are other provisions in there too, but those are the main ones. It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit. This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning. [An astute reader asked me after this blog entry originally posted what the value of this provision is - since the landlord could presumably still turn around and sue the tenant for the property damage. I address that question, and a number of other questions about my blog, in a recent blog post that can be found here.]
Security Deposits Under Non-VRLTA Leases
As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself. I cannot count the number of times I've had a consult with a potential client that goes like this:
Potential Client: "It's been 45 days, and I haven't heard from the landlord about my security deposit."
Me: "Well, where in the lease does it say that the landlord has 45 days?"
Potential Client: "I saw it online that it's a law."
So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.
When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease. How does the lease say that the security deposit is to be dealt with? If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline. Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow. [I will add this caveat - if the timeline is not laid out in the lease, I would actually say it's more common for non-VRLTA landlords to follow a VRLTA + 15 days timeline, but usually not much beyond that.]
But, as I said, that timeline is not manadatory. My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action. I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit. If you do not get a response, you can file suit for your security deposit. Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.
Can I Use My Security Deposit for Rent?
I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit. That covers the rent!" The short answer is, no it doesn't.
While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent. As a result, you cannot use your security deposit to pay a month of rent. For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it. For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.
In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.
Conclusion
Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases. If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. The initial consultation is free for up to half an hour!
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