A Brief Overview of Virginia Attorney-Client Privilege Law

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 in this post apply only to the Commonwealth of Virginia.

Introduction

Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means.  I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof.  Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.

Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.

A Brief History of the Privilege

As you probably know, attorneys have existed in some form or another since the Roman period.  Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England.  There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had.  Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them.  The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.

This is still the philosophical underpinning of attorney-client privilege.  It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages.  It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.

So, What Does Privilege Cover?

Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm.  That's it.

So, a few important things to note about the above.  First, privilege never expires.  Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death.  Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you).  Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged.  Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails.  Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney.  Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).

How Privilege Works

So, now that we know what privilege covers, it's worth discussing how privilege actually works.  So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this.  This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc.  If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained.  In other words, nothing privileged you tell your attorney can be used against you.  Unless the privilege is waived.

How Privilege Gets Waived

So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived.  Privilege can be waived many ways and for many purposes, both intentionally and unintentionally.  It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.

So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do.  The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.

Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm).  It does not matter who does the revealing - it can be you or your attorney.  It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization.  If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them.  If the revelation ends up hurting you, you can also sue your attorney for malpractice.  Nonetheless, the privilege remains waived.

Now, fortunately, this rule about revelation is not nearly as harsh as it used to be.  Courts recognize the supreme importance of the privilege, and protect it diligently.  As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter.  Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.

Similarly, where waivers are found, the scopes of those waivers are very limited.  With very rare exception, the courts virtually never find privilege to be fully waived.  Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed.  For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop.  I also stole Jerry's bike."  Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop."  Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."

As you might imagine, privilege is actually waived routinely in most cases.  This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side.  Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.

Exceptions to Privilege

Now, as you might imagine, there are some exceptions to privilege.  These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable.  There are a lot of exceptions to privilege, but most of them are very fact specific.  Here are the most common exceptions I encounter:

• Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests.  This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
• Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
• A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.

So, as you can see, the big areas where privilege does not apply are when you have a dispute with your attorney, or the communications that would have otherwise been privileged reveal some ongoing or future wrongdoing on the client's part.

Conclusion

Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand.  If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.

Settling Custody, Visitation and Child Support in Virginia

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

Additional disclaimer - I represented the appellant in the Virginia Court of Appeals in the case of Everett v. Carome discussed below.  That case is mentioned not as an example of my work, nor to provide any example of my abilities as an attorney, but rather solely to discuss the legal implications of the ruling issued in that case.  Nonetheless, you should be aware that my personal involvement in the case may influence the way I view the ruling, and my interpretation thereof.

Introduction

One of the general principles behind settlement agreements in court cases is the notion that individuals will always look out for their own best interests first.  As a result, if you decide settling a case a certain way is in your best interest, who is a judge to say otherwise?  But what happens when your settlement affects someone else - someone who didn't get any say in what you decided?  This is the questions judges are routinely faced with when dealing with custody, visitation and child support cases that have been settled between the child's parents.

In this blog post, I will be discussing the additional factors you must deal with when settling a child custody, visitation and/or support case, that you don't normally have to deal with in other settlements.

The "Best Interest" Standard and the Court as Final Arbiter

The most basic rule about settling custody, visitation and/or child support cases is that these settlements must be in the "best interest" not of either parent, but of the child.  Since it's entirely conceivable that both parents will have interests that differ from the interests of the child, it is the court's responsibility to determine what is in the child's best interest.  This means that no settlement is binding on the court, and a court can void any settlement or any portion of a settlement that it deems not in the child's best interests.

Settlements Are Still Allowed

Despite this rule, which dates back to the 1800's, the General Assembly has passed a number of laws making it clear that the court is to give great deference to any settlement reached by the parents regarding the issues of custody, visitation and/or child support.  The idea behind this is that, at the end of the day, the parents are usually going to have a better idea of what is best for their child than the court.  As a result, the present rule is that a settlement on the issues of child custody, visitation, and/or child support will be approved by the court unless the settlement is within one of the categories of settlements that are automatically forbidden, or it can actually be proven that a proposed settlement is not in the child's best interest.

Types of Forbidden Settlements

So, what kinds of settlements are strictly forbidden?  There's no statutory law that lays this out, so these rules are developed from case law, meaning they are still evolving.  Nonetheless, there are some types of settlements that are so well established as to be forbidden, that if a judge misses the issue originally and approves a settlement in this category and someone comes back years later and says "hey, this settlement shouldn't have been approved" the settlement can still be undone.  The key types of settlements that are strictly forbidden are:

• Right Terminations:  Virginia has a very specific set of rules for how a parent's parental rights and obligations can be terminated (I did a blog post on this here).  A settlement between the parents is not within those set ways rights can be terminated.  As such, a custody/visitation agreement that permanently terminates one parent's parental rights and obligations is automatically invalid.

• Waivers of Support:  No matter what you may have been offered in return, nothing, according to Virginia law, allows you to abrogate a child's right to be supported by both parents.  This means that you cannot waive your right to receive child support in a child support settlement.  This rule was established by the case of Kelley v. Kelley in the early 1990's when, in a divorce, a wife received the full value of the marital residence in exchange for her never being able to seek child support.  The wife later sought child support anyways, and the Virginia Supreme Court said her pursuit of child support could go forward despite the agreement since the agreement was invalid due to the child support waiver.  Note, however, that this bar is to permanent waivers of child support.  There's nothing wrong with setting the current child support amount at $0 per month, as long as it can still be changed later.

• Jurisdiction-Stripping:  Just as one fundamental rule is that a child has a right to support from both parents, another, as laid out above, is that the court must be able to serve as the arbiter of the child's best interests.  As a result, agreements that forbid a party from going back to court later to modify custody, visitation, and/or support are also invalid.  Now, an agreement can have provisions that provide for automatic modifications in certain situations, but an agreement cannot forbid a party from going to court to change custody, visitation and/or child support in a manner different from the manner laid out in the agreement (although the agreement can provide certain penalties for doing so, as long as the penalties are not unreasonable or outrageous).

• Modification Bars:  As an offshoot on the ban of "jurisdiction stripping" is the notion that, since the court is the ultimate arbiter of a child's best interests, the court must have the power to modify custody, visitation and/or child support as the child's interests change over time.  This means provisions of settlements that forbid future modifications are also invalid.  In the child support context, this was raised as a side comment in Kelley, when the Virginia Supreme Court noted that agreements that "waive child support" and those that bar the court from exercising its power to modify child support or both types of agreements that are invalid.  Since that wasn't actually at issue in Kelley, though, this rule was seen for some time as "dicta" (an appellate court statement that has no binding precedential effect since it was not necessary to the finding of the court).  Nonetheless, in the early 2000's, the Court of Appeals dealt with a case called Shoup v. Shoup where an alleged stripping of the court's power to modify child support did occur.  While the Court of Appeals ultimately concluded that the agreement at issue in that case didn't actually take away the modification power of the court, it finally made clear that if the agreement had, it would have been invalid.  This still left open for some time, however, the question of whether or not an agreement could bar child support order from ever being reduced, since arguably it's only an agreement that bars child support from ever being increased that would harm a child's best interests.  Many trial courts assumed that a child still has an interest as well in his or her non-custodial parent not being made destitute from a child support order they perhaps could no longer afford, and so child support must always be modifiable either way, but as recently as 2014 the Fairfax Circuit Court had a published opinion in a case called Host v. Host concluding that an agreement forbidding a downward child support modification was ok.  This question was finally settled in August of 2015 in a Court of Appeals case called Everett v. Carome which found as a key to its ultimate ruling that the modification rule found in Kelley and in Shoup forbade agreements from barring downward child support adjustments as well.  As a result, it is now clear law that no child support agreement can permanently forbid any kind of child support modification for minor children, whether that modification is upwards or downwards.

Other Challenges to Settlements

So, those are the only categories of settlements that are automatically invalid and unenforceable.  If, however, a settlement is reached which does not fall into any of the above categories and then one parent wants to challenge it, or if a guardian ad litem has been appointed for the child and the guardian ad litem wishes to challenge the settlement, the settlement can still be invalidated if it is sufficiently proven to the court that the settlement is not in the child's best interests.

Modifications of a Settlement

So, considering that one of the types of settlements that is automatically invalid is a settlement that bars modification of custody, visitation and/or child support in the future, you might be wondering how those things are modified later.  Well, the basic rule is that it is the same way as they would be modified without a settlement - the party moving to modify must show that there has been a "material change in circumstances" since the settlement was approved, and once they've done so, custody, visitation, and/or child support is fully re-opened to litigate or settle.  There is a caveat, however.  If your settlement took into account certain assumptions about what would happen in the future, and worked those assumptions into the settlement, then those predicted things happening cannot be a "material change in circumstances" even if they would be absent an agreement, since the assumption that those things would happen are already effectively a part of the current order.

Settling Custody, Visitation and/or Child Support is Worthwhile

So, reading all the above, you might be thinking "well, then why bother settling these things, if we have to go through all of this?"  The answer is simple.  First, like most settlements, you can do a lot of things in a settlement that the court can't do on its own.  You can agree to have child support continue past the child turning 18.  You can agree to have child support automatically change upon the incomes of the parents changing.  You can agree to have visitation automatically change based on certain pre-determined conditions.  In short, settlement gives you a lot more flexibility than you have in court.

Second, the vast majority of settlements aren't even contested.  Most settlements to custody, visitation and/or child support cases that are presented to a court are not challenged by anyone and are not heavily scrutinized by the court.  The courts are generally too busy to find an issue with a settlement on their own, and people don't usually renege on their settlements.  As a result, the vast majority of custody, visitation and/or child support settlements that don't fall into the category of an automatically forbidden settlement are approved without contest, without trouble, and generally as easily as any other kind of settlement.  Moreover, when those settlements are challenged, they are usually upheld.

In short, settlements in custody, visitation, and/or child support cases are usually flexible, and usually valid.  As a result, if you can reach a settlement in your custody, visitation and/or child support case, it's still a good idea, despite the extra steps that have to be taken.

Conclusion

In recognition of the fact that parents might not always look out for their children's best interests, the courts serve as the final arbiter of those interests, and have the power to invalidate settlement agreements regarding child custody, visitation and/or support if the court finds those settlements to not be in the child's best interests.  Nonetheless, the vast majority of such settlements are valid and approved under guidance from the General Assembly requiring the courts to give at least some deference to the parents' choices.  If you are involved in drafting a custody, visitation and/or child support settlement or a dispute regarding one, 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 thirty minutes!

Virginia Law and the Blog Part IV - More Follow-up on Past Blog Posts

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

One of the most useful things for me as a writer of this blog is getting questions from readers e-mailed to me asking me to elaborate on something I've had in the blog.  It helps me know what people are interested in learning more about, and where some more detail could be helpful to people.  Originally I tried to address this in follow up blog posts, but eventually I decided that it would be easier for me to consolidate these questions every now and then into what I've called "Law and the Blog" articles where I directly address some common questions I've received.  This is the fourth iteration of that series - the last having been done in March.

"You mentioned in a previous post that if a child is permanently disabled, then after they become an adult, you can still be ordered to pay child support.  I'm in that situation, except my ex just moved my son into an assisted living facility.  I can't afford to help pay my son's assisted living costs and pay child support to my wife, so I'm stuck not helping my son - what can I do?"

If you're in this situation, you need to file to terminate your support obligation immediately.  Post-majority child support for a disabled adult child is only authorized by statute if that child resides with the parent receiving the support.  If the child is no longer residing with that parent (because, for example, the child has been moved into assisted living), then your support obligation should be terminated, and you should be able to contribute to your son's care directly.

"My ex has been refusing my court-ordered visitation with my daughter for no good reason - should I file a Motion to Modify Custody or for a Rule to Show Cause?"

Well, that's up to you - and to be clear, you are perfectly allowed to file both.  For a Rule to Show Cause I would ask if the violations are repeating and significant.  If they are, then it's probably worth pursuing, as your ex may well violate more court orders, and a contempt finding with a threat of jail time might be just what the doctor ordered for getting her to comply with court orders.  As for the custody modification, you need to analyze whether or not changing custody would actually benefit your child.  If your ex is going to ignore even a contempt finding, and will just never let you see your daughter, then it may well be that you taking custody is what's best for your daughter.  If, however, you can get your ex to comply with the current order, you should consider why you want custody (is it because you actually want it, or just to punish your ex), why you don't currently have custody, and if yanking your daughter out of the home she's used to is really in her best interest.

I will say that when I practiced custody/visitation more regularly, I usually filed a Rule to Show Cause and only a Rule to Show Cause in these cases - but there were certainly more extreme cases in which I did pursue a custody modification.

"Why did the whole Kim Davis thing bother you so much?"

When I was in college, I met an international student from Central Asia and got to talking about why he wanted to come and learn in America.  He told me about how in his country, they did not have a free press, but it was free enough that they got fairly unfiltered world news (it was domestic stories that were more suppressed).  He remembered watching the fallout of the 2000 election in America, and was sad to see such a great nation fall into such turmoil.  After the court ruled against Al Gore, he waited to hear about the ensuing civil unrest and breakdown of order.  And waited.  And then he learned that, rather than lead a revolution, Gore had simply conceded, Americans, including Gore's hardest core supporters, moved on with their lives, and that was that.  To him, the notion that a court could issue an order (a 5-4 decision at that), and the nation would say "ok" and that be the end of it was completely novel to him, and he immediately fell in love with the idea of America.

You want to know what makes America truly exceptional?  The rule of law.  We are one of the few countries in the world where the rule of law is taken seriously, and reigns supreme over virtually everything else.  It's why we don't have routine civil unrest, civil wars, revolutions, etc.  We have the rule of law.  When I hear people openly mocking and attacking the rule of law, as Kim Davis and her supporters did, I hear people trying to undo the very fabric of this country.  These are people who want to make America no longer be America.  That is why Kim Davis bothered me so much.

"You've explained before how there are certain circumstances in which a relative of a child other than the parents, such as the grandparents, can get court-ordered visitation, and that it is a much easier standard when one parent agrees with the visitation and the other doesn't than when both parents disagree with the visitation.  You've also explained how, when a child is adopted by a step-parent, the biological parent's rights are terminated, but that parent's relatives' rights are not, so a grandparent could still seek visitation.  If my son's son is adopted by his step-father and I seek visitation, does it matter that my son supports that visitation, or would I need either the mother or step-father (or both) to support the visitation in order to get the less strict standard applied?"

I'm sorry to say that while your rights as the child's grandmother are not terminated in a step-parent adoption, your son's rights as the child's father are if the child is adopted by his step-father.  This includes your son's right to consent to your effort to seek court-ordered visitation.  As a result, if the adoption goes through, you will need either the mother or the step-father (now adopted father) to approve in order to get the "best interests of the child" standard applied - otherwise you will face the much tougher "actual harm to the child" standard regardless of what your son's position is.

Conclusion

As always, keep those questions coming.  I love knowing what it is that people need to know the most.  If you need legal assistance, please give us a call at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  We offer free initial consultations for up to half an hour!  Also, don't forget to check out our new and improved website at http://www.thebaldwinlawfirm.com.

Virginia Attorneys' Fees Law - When Do You Not Have to Pay?

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

Introduction

"It's their fault that I'm in this mess, they should pay your fees, not me."  If I had a dime for every time I've heard a client say that or something similar to me I'd... well... probably have a lot of dimes.  Attorneys' fees are one of those areas where a particular sense of unfairness hits a lot of clients.  If it's not their fault that they need an attorney (maybe they've been wrongfully sued, or wrongfully accused of a crime, or maybe they are enforcing their rights against someone who refuses to do what they are supposed to), it just doesn't seem right that they have to pay their lawyer and can't get the other side to pay.

Well, there are some situations in which your attorneys' fees can, in fact, be ordered to be paid by the other party, but those situations are exceptions, not the rule, and even they are complicated.  In this blog post I hope to discuss some of the basics (the details would be far too much for one post) on when you can and cannot require the other party to pay for your lawyer, and how such an arrangement actually works.

American Rule vs. English Rule

Much of the "common law" world (the parts of the world that can trace their legal traditions to Medieval England) follow what is known as the "English Rule" in civil lawsuits.  This rule is simple - in a lawsuit, the loser pays the winner's attorney's fees, in addition to his or her own.  The United States, however, despite being a common law country, does not follow the English Rule.  Rather, we follow the "American Rule," which states that, while there are exceptions, barring the availability of one of those exceptions, each party pays his or her own attorney regardless of who wins and loses.

The merits of this Rule can be debated all you want (and this is not a constitutionally required rule, by the way, meaning the various state legislators could change it any time they wanted to if they wished), but it is the law in all 50 states and the federal court system right now.  As a result, you should always enter a legal situation expecting to pay your own attorney.

Now, with that background, it might be worth discussing what the major exceptions are.  In Virginia, there are around three major exceptions.

Exception 1 - Statutory Exceptions

Statutory exceptions are situations where Virginia Law expressly provides for attorneys' fees to be awarded in the discretion of the court.  Some common situations in which courts have the power to award attorneys' fees to a party of its choosing are Family Law cases (including divorce), estate dispute cases, and all civil lawsuits heard by the Juvenile and Domestic Relations District Courts.

Now, the statutory exceptions themselves will lay out in each specific part how the court makes its determination - and not all statutory exceptions are the same.  For example, in a divorce, attorneys' fees are awarded "in light of all the equities of the case" - in other words, the judge is to make an attorney fee ruling he or she considers fair.  In J&DR Court cases, however, attorneys' fees are to be awarded based pretty much solely on the relative ability of the parties to pay.

So, as you can see, the statutory exceptions give a great deal of discretion to judges.  As a result, if you wish to enforce an attorney fee right which is granted by statute, you must convince a judge that you should be awarded such relief.  You cannot simply demand that the other party pay all of your fees.

Exception 2 - Agreement

The next major exception is if the parties have agreed to apply the "English Rule" to their case.  Many contracts, for example, will contain provisions that if a lawsuit is filed based on an alleged breach of the contract, the prevailing party will be entitled to his or her attorneys' fees.

With rare exception, when a lawsuit involves a contract and that contract provides for an attorneys' fee award, the judge is largely without discretion.  If the agreement provides that the loser pays, then the judge must order the loser to pay.  In these cases, it is much more reasonable to demand your fees from the other side at the outset.

Exception 3 - Sanctions

Virtually all court systems have provisions for dealing with lawsuits that are "frivolous."  In Virginia, our provision is Virginia Code Section 8.01-271.1.  This provision states that the signing of any "pleading" (court document) indicates that the person signing it (be it the attorney or an unrepresented party) has a good faith basis for believing that the pleading is reasonably based on law or fact.  If this later turns out to be untrue, and the pleading was filed in bad faith, the lawyer, the lawyer's client, or both can be sanctioned (penalized) by the court.  Amongst the penalties the court may impose is an attorneys' fee award.

Much like exception 1, sanctions are largely discretionary.  If a judge finds that sanctions are warranted, the judge may not award fees at all, or only award some fees.

How Fee Awards Function

If you find yourself in an exception situation where a fee award might be possible, the first thing you need to understand is that your fees are your responsibility first and foremost.  I've had clients say to me "do this, and then send the bill to the other party."  No, that's not how it works.  You owe the money to your attorney, and it is your responsibility to pay, even when the court has awarded you your attorneys' fees.

If the court awards you fees, it can come in two forms - an order to pay or a judgment.  As I've discussed before, an order to pay is a ruling that requires the person to pay under penalty of contempt of court.  A judgment, however, only creates the duty to pay on paper, and then you still have to engage in post-judgment collections to get the money.

The easiest way to tell which situation you are in is to see if the judge provided a payment deadline.  If they did, then it's probably an order to pay, and if they did not, then it is probably a judgment.  More generally, most (but not all) attorneys' fee awards arising out of agreements are judgments, and most (but not all) attorneys' fee awards arising out of sanctions are orders to pay.  For statutory exceptions, it generally depends whether the case is "in law" or "in equity" - so divorce attorney fee awards are usually orders to pay, but estate dispute attorney fee awards are usually judgments.

So, the fact that some attorneys' fee awards are just judgments that must be garnished or otherwise collected should tell you right away that you must still pay your attorney first, but then you can try to get that money back.  Even orders to pay, however, do not relieve you of your obligation to your attorney, since the other party may still refuse to pay.  Most importantly of all, however, almost all attorneys' fees awards (both judgments and orders to pay) are dischargeable in bankruptcy, so if the other party declares bankruptcy, you can't collect the fee award, and you still have to pay your attorney.

In short, there is virtually no situation in which "do this and send the bill to the other party" is actually acceptable.

Conclusion

There are few things more frustrating to a wronged party that realizing that you still have to pay for your own attorney.  While there are exceptions, these are frequently hard to understand, and harder still to enforce.  If you'd like to discuss whether an attorney fee award is possible in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com for a consultation.  Our initial consultations are free for up to half an hour!

The Baldwin Law Firm Has a New Website

As regular readers of my blog know, I am not a solo practitioner.  Rather, I work for a wonderful small law firm in Fairfax County, Virginia called The Baldwin Law Firm.

Today, I'm pleased to announce that our firm has a brand new website (first major re-vamping of the firm's website in more than a decade!).  Please check us out at http://www.thebaldwinlawfirm.com!

Multiple Tenants in Virginia - What to Do when Tenants Don't Get Along

As always, prior to 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

One of the most complicated issues I face as a landlord/tenant attorney is the issue of what to do when two tenants in the same property don't get along.  This matter is complicated whether I'm representing the landlord or one of the tenants, yet it is frequently made even more complicated because neither the landlord nor the tenant did any advance planning for the possibility of a dispute between tenants.  Unfortunately, most of these disputes end up being costly and unpleasant for all involved, and much of the expense could have been saved with proper planning.

In this post, I'll address some of the basics of how to address a tenant dispute when it arises (from either the landlord or tenant's perspective), and then I will discuss a few ways advanced planning can prevent these disputes from escalating.

Know Which Law Applies

I've discussed many times before the difference between leases that are and are not covered by the Virginia Residential Landlord and Tenant Act (for a basic breakdown of figuring out which law applies to you, view my post here).  This is a situation where it does matter whether or not your lease is covered by the VRLTA - especially if you are the landlord.

What a Landlord Should Do if Tenants are Fighting

As the landlord, if two tenants are fighting, it might be your temptation to throw up your hands and say "not my problem, you two work it out."  This would be a mistake.  A landlord is under an obligation to provide a home that is habitable and tenantable, and that includes a home where the tenant is safe and free from improper invasion of privacy, harassment, etc.  If a tenant has a legitimate dispute with their fellow tenant in that their fellow tenant is actually preventing them from having quiet enjoyment of the property, they could be within their rights to terminate their lease early, force you to return their security deposit, and leave you with a smaller rent check each month than you had planned.  Worse yet, if word of your lack of caring gets around, you may have trouble finding a new tenant.  In other words, yes, it is your problem.

The first step you should take as a landlord is to investigate your lease to see if the offending tenant has, in fact, violated any provision of your lease.  If they have, you can proceed with action for a breach of the lease against the tenant, including a 21/30 notice if your lease provides for it or is covered by the VRLTA.  If, however, the offending tenant has not actually violated the lease, you could be in some trouble.  If your lease is covered by the VRLTA, you have the right under Virginia Code Section 55-248.17 to adopt rules and regulations for how your tenants are to behave in the property - the only restrictions are that the rules must be reasonable, and must not amount to a "substantial modification" of the lease in which they entered.  It is very unlikely that reasonable rules about how your tenants behave towards each other will be such a substantial modification, however.  This is important, because once those rules are adopted (and I do recommend consulting an attorney in order to ensure they are prepared and adopted properly), a violation of those rules is legally equivalent to a violation of the lease.

The common law has no identical provision, however, and so if you have a common law lease, you can only adopt such rules and regulations if the lease expressly allows you to (I've said this before, and I'll say it again, the VRLTA leases is a double-edged sword and there absolutely are circumstances where it is more favorable to a landlord than the common law).  If you have a common law lease and the lease does not include a rules and regulations clause, I would strongly advise you to consult with an attorney on how to proceed.

What a Tenant Should Do in a Dispute with Another Tenant

The first thing a tenant experiencing problems with another tenant should do is try to resolve your issues.  If that fails, you should alert the landlord as soon as possible.  This will give you an opportunity to see if your landlord will work with you to resolve the dispute.  If your landlord fails to act, however, then you need to assess whether or not the other tenant is breaching the lease, violating the law, violating properly adopted rules or regulations, or is engaging in conduct that is making the home unlivable for you.  If any of those situations is occurring, you likely have the right to provide a 21/30 notice to the landlord requiring the landlord to fix the situation within 21 days, or terminating your lease in 30 days (a more detailed explanation of 21/30 notices is in my post here).

How to Prevent these Issues

It probably does not surprise you that the vast majority of tenant dispute cases I see, both representing landlords and representing tenants, are cases where a) the lease is not governed by the VRLTA, b) the lease does not have a rules and regulations provision, and c) the offending tenant is not in actual violation of the lease or the law.  Most of those cases, the landlord actually is interested in helping the tenant, but because of the way the law works, the cases end with the landlord agreeing to terminate the offended tenant's lease at no penalty.  The landlord's not happy - they've lost a good tenant and are stuck with a bad one, and the offended tenant's not happy - they've had to move through no fault of their own.  The sad thing is, it doesn't have to be this way.

First and foremost, landlords planning to rent to multiple tenants, and tenants planning to live with other tenants, should ensure that your lease itself contains provisions that not only outline a tenant's duties towards the property, but also a tenant's duties towards other tenant's.  At a minimum, the lease should require tenant's to behave in a respectful manner towards each other, forbid tenants from entering the bedrooms of other tenants unless invited, forbid tenants from harassing or stalking other tenants, and require tenants to share household chores in a reasonable manner.

Additionally, all leases (even VRLTA leases, since it's always better to have in the lease instead of just the law) should have a rules and regulations provision.  The provision should lay out how rules can be made, how they are adopted, how they come into force, and the effect of violating a rule or regulation.  The simple reality is, the best lease drafter in the world cannot foresee every issue that might come up, and it's always a good idea to give you some power to handle issues as they may arise.

Conclusion

Disputes between tenants in a multiple tenancy property are one of the toughest issues we face in landlord/tenant law.  It is made much tougher by the fact that most landlords renting to multiple tenants simply are not prepared for the possibility of such a dispute.  With proper planning, such disputes do not need to be the horror show that they tend to be.  If you are dealing with a tenant dispute, or would like to plan a lease or rules and regulations to deal with tenant disputes, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  We offer free initial consultations for up to half an hour!  Also, our firm just completely revamped our website - you should feel free to check it out here.

Virginia Divorce and Your Retirement - What Happens to Your 401(k) When You Divorce?

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

Introduction

In this day and age, saving up for retirement is a critical part of any person's career.  When you get divorced, however, your retirement savings generally do not escape unscathed.  After all, if your spouse has been staying at home to take care of the kids, allowing you to work and make substantial income, is it really fair for your spouse to get stuck with none of your retirement savings?

The law surrounding what happens to one's retirement in a divorce is very complicated.  One blog post cannot possibly hope to capture the scope of this issue, but in this post, I hope to provide a basic outline of how retirement assets are handled in a divorce in Virginia.

Retirement Benefits Earned During Your Marriage are Marital Property - With One Big Exception

First of all, like all money earned while you are married, and property purchased with money earned while you are married, retirement benefits earned while you are married are marital property, and subject to division by a divorce court.  There is one big exception to this, however, and that is Social Security benefits.  Your Social Security benefits are always your separate property (this is by mandate of federal law), so a divorce court cannot touch your Social Security.

Now, you might already be thinking of some questions.  How do I determine what benefits were and weren't earned during the marriage?  What time period counts as "during the marriage"?  How does a court determine how to divide those benefits?  Moreover, since I can't touch my retirement until I'm a certain age, how does a court physically divide those assets?

The Basic Rules for Dividing Retirement Benefits

Well, first of all, the basic rules for dividing retirement benefits are laid out in the Code of Virginia - specifically Section 20-107.3(G)(1), where the Code states that "upon consideration of the [equitable distribution factors]...  the court may direct payment of a percentage of the marital share of any [retirement account]... the court may only direct that payment be made as such benefits are payable.  No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. 'Marital share' means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent."

So, let's parse all of that out.  The first part tells us that retirement assets are divided upon consideration of the equitable distribution factors listed in Section 20-107.3(E).  So this tells us that the division of a retirement account is, generally, subject to the same rules as division of all other marital property - meaning there is no automatic 50/50 division of the property, rather the court must decide what is fair based on the list of factors.

The next part just tells us that the court can divide retirement accounts.  After that, we see that the court cannot require those benefits to be paid until they are actually payable - so you can't face a penalty for having an early withdrawal from a 401(k) since the court cannot force you to make such an early withdrawal.

Next, we see a requirement that the non-owning spouse cannot be awarded more than 50% of the marital share of the benefit.  This is an important difference between how retirement benefits and other marital property are divided.  While the court may generally conclude that the 20-107.3(E) factors warrant your ex getting 65% of the marital property, the court cannot award your ex more than 50% of the marital share of your retirement account.

Note also that the rule does not restrict the other direction.  In other words, if the court determines that the factors under 20-107.3(E) warrant your ex only getting 35% of the marital property, then the court also has the option to only award your ex 35% of the marital share of your retirement benefits.

Finally, the section tells us that the "marital share" of those benefits is the rights in the benefits that are earned between the date of marriage and the date of separation (not the date of divorce), so all benefits earned after the separation are your separate property.

How to Calculate the Marital Share

So, saying how the marital share is defined is one thing - actually calculating it is quite another.  So, what does all the legal jargon about "that portion of the total interest, the right to which was earned during the marriage" actually mean?  Well, it depends on what type of retirement account you are referring to.

There are two types of retirement accounts - defined contribution plans, and defined benefit plans.  A defined contribution plan is a plan where you contribute certain amounts over time, and then, within certain rules, once you reach a certain age you withdraw what you want to withdraw.  Examples of defined contribution plans are 401(k)'s, federal Thrift Savings Plans, and IRAs.  A defined benefit plan is one where, upon certain conditions being met, you become entitled to certain regular payments for the rest of your life (or until a set time).  Examples of defined benefit plans are your standard pensions, retirement annuities, federal FERS and CSRS benefits, and Virginia state VRS benefits.

For defined contribution plans, the marital share is all contributions made between the date of marriage and the date of separation, plus all earnings and losses attributable solely to those contributions.

For defined benefit plans, the marital share is usually defined by a formula.  You take the total number of months (a) between the date of marriage and date of separation, and (b) where you were employed by the employer whose plan you are dividing, and then divide that by the total number of months you were employed by the employer whose plan you are dividing (both during and not during the marriage).

An example would be that if you began work for an employer with a defined benefit plan on January 1, 2010, got married on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were employed during the marriage), and your denominator would be 36 (total months you were employed), for a fraction of 1/3.

Similarly, if you got married on January 1, 2010, began work for an employer with a defined benefit plan on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were both employed and married), and your denominator would be 24 (total months you were employed), for a fraction of 1/2.

Once you get your fraction, you then multiply it by your periodic payments, to give you the portion of those payments that is marital.  This is not the portion your spouse gets - it's just the portion that is marital.  That is the portion that gets divided.

How do courts physically divide the retirements?

So, this probably sounds very complicated, especially if you have to do it yourself.  Moreover, since the benefits can't be kicked in until you'd normally be eligible, you might be wondering if you have to keep this in mind for potentially decades, then meticulously calculate a division of each payment.  Fortunately, you do not - rather, the Court will enter an order directing your retirement benefit administrator on how to divide your retirement assets.  It is then on your administrator to make sure it is done properly.

A federal law called the Employee Retirement Income Security Act of 1974 (ERISA), which has been amended multiple times since 1974, creates a large number of protections for retirement accounts, and also provides the means of dividing most retirement accounts.  ERISA creates a concept known as the "Qualified Domestic Relations Order" (QDRO, generally pronounced like "quad-row").  QDROs are universally recognized orders that, if they meet certain conditions, will require a retirement administrator anywhere in America to properly divide a retirement account.

For defined contribution retirement plans, the QDRO will lay out the relevant dates, and then require the plan administrator to calculate the marital share, divide the marital share, then take the other spouse's portion of the marital share and open a 401(k), IRA, or other equivalent account in that spouse's name with the funds.  Once the new account has been created and the money removed from one and put in the other (known as the funds being "segregated"), the process is complete and you are back to having complete control of your account.  No penalties are given for early withdrawals, taxes, etc.

For defined benefit plans, the QDRO will contain the formula mentioned above, and the plan administrator will retain that until the denominator is determined (since you may still be working at that employer when you divorce).  Once the denominator is determined, the administrator will determine the share of funds your ex will be entitled to, and once you retire and start earning funds, the account administrator will divert your ex's share directly to your ex.

Note, however, that ERISA does not apply to federal employees.  As a result, federal retirement plans are divided by what is known as a "Court Order Acceptable for Processing" (COAP).  Rules for COAPs are put out by OPM on a routine basis.  Note that TSPs and FERS/CSRS plans have different administrators, so you will need a separate order for division of a TSP and for division of a FERS/CSRS plan.

Finally, the State Department and military each have their own systems separate from the rest of the federal government.  The military will divide military retired pay via an allotment, which can be done if the proper language is included in the Final Decree of Divorce itself.  State Department retirement plans must be divided per State Department rules.

Conclusion

Remember how I said at the beginning of this post that retirement division is far too complicated a topic for one post?  Then do you see how complicated this post was?  Well, I stand by what I said at the beginning - this post is only a basic overview.  Once you get into the details, it gets very muddy.  If you are involved in a divorce and there are substantial retirement assets involved, I cannot strongly enough recommend that you get an attorney.  If you would like to discuss your case with an attorney, 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!

Legal FAQ Part V

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

Once a staple of this blog, I discovered today that I haven't done a true Legal FAQ since February of last year!  As with my previous FAQ's, today I will answer questions that I am frequently asked by friends, family, clients and others, but which, in my opinion, don't really warrant a full blog post of their own.  As you will see, one topic from the news has been dominating my discussions with people who have these kinds of questions lately, so it will also be dominating this FAQ.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III
FAQ Part IV

Why was it constitutional to jail Kim Davis?

This is the question I've gotten from non-attorney friends the most recently - and not surprisingly.  In case you've been living under a rock, Kim Davis is the county clerk in Kentucky who refused to issue marriage licenses because if she did so, she would have to issue them to same-sex couples, and doing so violates her religious beliefs.  A federal judge said that her religious beliefs do not allow her to refuse to do her work duties and ordered her to resume issuing licenses.  When she refused, she was sent to jail for contempt of court.

Here's the thing - when someone works for the government, they act as an arm of the government while they are working.  If your religious beliefs prevent you from performing your duties as a government official, you simply cannot hold that title.  You have a right to believe whatever you want, to worship who you want and how you want, but you do not have a right to impose that belief on others, and when you are in a position of power in the government, that generally means you cannot use your own religious beliefs in a way that prevents you from providing services to the public.  As such, Ms. Davis had no right to withhold those licenses - she needed to either resign, or issue the licenses.  When she refused, she was correctly jailed for contempt.  It would be the same result for, say, a conservative Muslim DMV clerk who didn't want to issue driver's licenses to women, or an Orthodox Jewish SBA employee who didn't want to approve loans to businesses that would be open on Saturdays.

Now, unfortunately, a lot of misinformation out there has caused this case to be compared to a recent Supreme Court opinion in which Abercrombie and Fitch was found to have discriminated against a Muslim woman because they wouldn't hire her since she couldn't abide by their employee dress code.  This is a false comparison for a wide variety of reasons.  First, the issue in front of the Supreme Court was largely unrelated to the underlying issue - Abercrombie actually essentially admitted they discriminated, but claimed that because they'd only guessed she was Muslim (rather than her having actually told them that she was) then the relevant federal civil rights law didn't apply.  The Supreme Court (in my opinion correctly) said that argument was ridiculous.  Now, on the broader law, federal civil rights laws say that it is religious discrimination not only if a company refuses to hire someone solely because of their religion, but also if the company refuses to hire someone or fires someone because the practice of their religion conflicts with the policies of the employer, so long as it is possible to reasonably accommodate the employee's practices.

So, you not only can't refuse to hire someone because of their religion, you also must allow them to practice their religion so long as doing so would be reasonable.  So, what is a "reasonable accommodation"?  Generally speaking, this is something where it would not particularly burden the employer or hurt the company to accommodate the practice.  What is generally not seen as a "reasonable accommodation" however is changing one of the core functions of the job.  In the Abercrombie and Fitch case, most people agreed that adhering to the employee dress code was not a core function of the job, and that accommodating the woman by allowing her to wear a head scarf was not a substantial burden of any kind.  In other cases, however, it has been held to not be discrimination to, say, require people to work on certain religious holidays (so long as certain pre-conditions are met), to require Muslim waiters/waitresses to serve alcohol, and other actions where, again, one of the core functions of the job is involved.

Now, it's important to note first of all that these laws apply to private employers.  Government employers actually have more flexibility in how they treat their employees because there is special consideration given to the fact that the employees speak for the government.  Nonetheless, even if the government were treated the same way Ms. Davis would not fit into the discrimination category.  Why?  Kentucky law requires all court clerks to issue marriage licenses, and court clerks are the only people who issue marriage licenses in Kentucky.  To that end, accommodating Ms. Davis would be doubly unreasonable - issuing licenses is a core function of her job, and failing to issue them substantially burdens the citizenry since they'd have to leave the county to get a license elsewhere.

Ultimately, I'm reminded of the quote of a constitutional law professor in Maryland some years back:  "People place their hand on the Bible and swear to uphold the Constitution; they don't put their hand on the Constitution and swear to uphold the Bible."  The moment Ms. Davis became a government official, she surrendered the right to use her religion as a basis to defy the law.  Her proper course of action was to resign.  When she failed to do that, the court did what it needed to do.

Is the Dred Scott decision really still the "law of the land" but just ignored by politicians and courts?

I had hoped my missive about Kim Davis would be all I'd need to write on this topic, but yesterday a completely bone-headed comment by presidential candidate Mike Huckabee caught my attention and led to more questions.  In his quest to argue that the Supreme Court really doesn't have the "final say" in what is and isn't constitutional, Huckabee argued that the infamous Dred Scott decision of 1857, which declared African-Americans to be less than human, and subsequently incapable of being citizens of the United States, is still the "law of the land" but is simply disregarded by courts and politicians today.  I can confidently say, however, that Mr. Huckabee is dead wrong.

You see, out of all the things he gets wrong, Huckabee gets one thing right - the Supreme Court doesn't have the "final say" of what is and isn't constitutional.  Now, it does have the final say over what is and isn't constitutional at the moment that the court considers the case - and that has been the case since 1804 - but as anyone who passed middle school civics will tell you, that's not the end.  Congress and the states have the power to change the constitution by way of an amendment, and any Supreme Court opinion to the contrary prior to the passage of that amendment is then effectively overruled.  While Dred Scott was the law of the land in 1857, literally every single thing that it held was overturned by the 13th, 14th and 15th amendments, which were ratified in 1865, 1868 and 1870 respectively.  As a result, Dred Scott has absolutely not been the "law of the land" since at least 1870.

How does Kim Davis differ from a conscientious objector?

Sigh... Yep, not getting away from the Kim Davis questions, am I?  Ok, this is another one I've been asked about a lot because Ms. Davis's attorneys themselves brought it up.  They pointed out that we have a long history in this country of recognizing conscientious objection, and Ms. Davis should be treated the same.  For those who don't know, a conscientious objector is someone who belongs to a religion that believes war, in all circumstances, is morally wrong, and who subsequently will not join the military, even in a draft.  The most well known religious group holding this view is the Quakers.

Now, historically, the US has honored conscientious objection.  When we have had drafts, there is quite an extensive review to go through to make sure it's an honestly held belief - not just an effort to get out of the draft - but if proven, conscientious objectors have been exempt from drafts.  What's important to note, however, is that the courts held multiple times that the US is not required to honor conscientious objection.  There are many good reasons to do so, but the next time the US has a draft, the Congress could very well decide "eh, we'll just draft everyone" and that would be perfectly allowed.  However, there's a more important distinction here.  Conscientious objection allowed people to not be put into a position where they would have to violate their religious beliefs to do their job - Ms. Davis is already in that position.  A more direct comparison would be a Quaker who voluntarily joins the army, collects an army paycheck, obtains army benefits, and then refuses to be deployed - that simply would not be allowed.

So does anyone other than the courts get a say in what's constitutional?

So, in light of the above, you might be thinking that it's fairly clear cut that only the court's opinion of constitutionality matters.  This couldn't be further from the truth.  Beyond the power to amend, every single government employee has also taken an oath to uphold the constitution.  While the Supreme Court may have the final say on what is and isn't constitutional as the constitution is currently written, the other branches of government still have to make their own analysis and, within limits, can act accordingly even if they disagree with the Supreme Court.

First of all, when the Court rules a law unconstitutional, it is unenforceable, period.  But when the Court finds something constitutional, the law can still be repealed because members of Congress and the President disagree.  Members of Congress can vote against a law they believe unconstitutional, and a President can veto a law he or she believes unconstitutional - in fact, I would hope that they would in such a situation.  A President even has the power to refuse to enforce a law he or she believes unconstitutional, unless and until a court orders otherwise.  In other words, the Supreme Court may have the "final" say, but it does not have the "only" say.

Final Thought

Today is a rough day for many people in this country.  Fourteen years ago, the horrors of war and terror were brought to our shores.  Yet, we also saw this country's ability to stand together as one.  As political discourse gets worse and worse in this country, I simply pray that we all remember that we are all Americans - and that "same" is far more important than any of our "differents."

No Blog Post Today

When I wrote my post in early May about switching to doing this blog every other Friday, I noted that even then, I expected I will miss some weeks.  That time has finally come.  I just returned from vacation and have a mountain of work facing me.  As a result, I will be taking this week off from posting.  You can expect my next post in two weeks.  Sorry for the inconvenience!

Virginia Termination of Parental Rights - An Overview

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

One of the unfortunate realities of life is that not every parent is truly fit to be a parent.  When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away.  In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.

While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.

What Happens When Your Parental Rights are Terminated?

So, before beginning, it's important to know what it means for your "parental rights" to be terminated.  This doesn't just mean you don't get to see the child anymore.  Remember how, for example, custody and visitation is modifiable?  Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again.  You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc.  Basically, as far as the law is concerned, you are no longer that child's parent.

Now, along with your rights being terminated, your responsibilities are as well.  The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well.  I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.

So, in short, a termination of parental rights means the law no longer considers you that child's parent.  You have no rights related to that child or responsibilities.  One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.

Voluntary Termination of Parental Rights

So, as noted above, I've seen people "sign away their rights" just to get out of child support.  How does that happen?  Well, there are two ways.  I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody."  In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire.  Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child.  The local Department of Social Services is required to investigate the matter.

At the hearing on the matter, the petitioner, the child (through his or her guardian ad litem), the other parents and guardians and the Department of Social Services all have the right to put on evidence.  After hearing all of the evidence, the court must determine whether it has been proven by "clear and convincing evidence" (so, more than a preponderance of evidence, but not as strict as beyond a reasonable doubt) that termination of the parental rights is in the child's best interest.  In other words, "I don't want to pay child support" isn't a good enough legal reason to terminate your parental rights, even if that is your motivation.  It is also very likely that at least one of the above parties will oppose your efforts (for example, the other parent may not be ok with you never paying child support again).

It is worth noting that many courts have read this code section to require the petitioning parent to actually have custody of the child, and thus dismisses petitions filed by a non-custodial parent.  This is not settled law yet.  As a result, most "voluntary" terminations of parental rights actually occur in cases where an involuntary termination petition is filed, but the parent consents to the termination.

Involuntary Termination of Parental Rights

An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home.  This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent.  While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption.  Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.

There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.

Adoption

Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents.  There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court.  For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.

In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency.  In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.

There's an important note about adoptions, however.  Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents.  Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them).  There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them.  This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.

Conclusion

Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia.  The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney.  If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Our consults are free for up to half an hour!

Virginia Child Support for the Self-Employed - What to do when you don't have a "salary"

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 herein apply only to the Commonwealth of Virginia.

Introduction

When I first discussed how child support is determined, I noted that, in theory at least, most cases of child support involve a relatively simple calculation.  You plug in each parent's income, any support for other children, work-related child care, and health insurance costs, and then a formula puts out how much child support should be.  In that same post, I mentioned a number of complications that sometimes arise that make the formula itself more complicated.  What I did not do, however, was get into some of the complications that make calculating the very numbers that go into the formula difficult.  Almost every number that goes into the formula could have one or two blog posts of its own to discuss - but how to determine "income" is probably the one that could have by far the most.  In today's blog post, I will discuss just one of those potential income calculation complications - self-employment.

When the formula for child support was derived, legislators envisioned two of your "typical" parents.  People employed by companies that pay them a consistent and pre-determined salary.  Yet, in the real world, truly "salaried" employees are not nearly as common as we think, and the law applies to all parents in child support situations.  One type of parent is going to be those who are self-employed.  Your typical self-employed individual not only has no salary, but has an "income" that varies from year to year, month to month, even day to day, depending on how business is going.  How on Earth do we calculate that person's income to go into the child support formula?

Child Support Based on "Current" Circumstances

One of the first rules of child support is that all numbers used in the child support formula are supposed to represent the parents' current situation.  Your current situation, however, includes the fact that you likely still have money from a previous month's income, and are making plans in accordance with what to expect in a future month.  Not to mention, since income every day can change, how do we project a monthly income number (which is what's used in the formula) on the very day of the court hearing?

No Single Formula

It might not surprise you to know that, since self-employment income can be so fact specific, the Court of Appeals and Virginia Supreme Court have never adopted a single formula or test for determining a self-employed person's income.  In fact, the appellate courts have upheld a wide array of tests and formulas used by trial judges under what's known as the "abuse of discretion" standard of review - meaning a trial judge will only be reversed if his means of calculating income was pretty obviously unreasonable or based on an error of law (such as saying support is based on past income, rather than on an attempt to determine current income).  This means that you will need to convince the judge of what means of calculation best reflects the self-employed individual's current income.

My general approach is that if the self-employed individual is in the same job as he was the previous year, and there's not been a substantial shift in the market, I will start with the business income reported on the individual's taxes the previous year.  Then, I will review all of his deductions to remove deductions that were not true "business expenses" (since "gross income" is the measure of income for child support) to yield a final "gross income" number for the previous year.  Finally, I will ask for statements showing monthly revenues the previous year and monthly revenues this year to do a year to year same-month comparison (comparing January to January, February to February, etc.).  If I see a consistent year over year increase or decrease, I will apply that percentage increase or decrease to the previous year's final number to get my anticipated "current year" income number, which I will then divide by 12.

Obviously this formula is not perfect, and I don't apply it to every situation.  Sometimes I'll use a three year, or even five year average, and other times I'll purely extrapolate using current year numbers, but the above method is the one I use most often, and usually find success (meaning acceptance from the court) with.

Try Multiple Formulas

This is also one of those situations where each party can likely reasonably make a claim to numbers that are more beneficial to them.  If you find a formula that gives you a better number (a higher income if it's the other side that's self-employed, or a lower income if it's you that's self-employed) and you can honestly say that your formula is reasonable, then there's no reason you should not be able to fight for the court to use that number.  As a result, if you can think of multiple reasonable formulas, you should test them all out to see what numbers they yield for you.  Hopefully the numbers will be similar to each other, but they may not be, especially if the self-employed person had one unusually good or unusually bad month or year.

No matter what, however, when you find the formula you want to use to calculate the self-employed person's income, be prepared to argue why that formula is the best way to estimate that person's "current" income.  In the end, you need to convince the judge that the formula you used to calculate is the right approach, not necessarily that the number you found is the right one.

A Quick Reminder About Taxes

Remember that child support uses "gross income" which means that it uses income prior to the application of taxes.  However, purely using gross income would put self-employed individuals at a disadvantage.  When you are employed by a business, that business pays half of your Social Security and Medicare taxes for you, and the part that your employer pays is not part of your gross income - so your gross income is calculated after that part of the tax has been paid for you.  For a self-employed person, however, they don't have an "employer" to pay that half of the tax, so self-employed people pay the full tax (this is called the "self-employment tax").

So, for a self-employed person, his "gross income" for child support is higher than the "gross income" of a non-self-employed person with the same actual income.  As a result, the child support formula reduces half of the "self-employment tax" (the same share that would be paid by a private employer) from a self-employed person's gross income for child support purposes.

Conclusion

Child support is already a confusing and complicated set of calculations.  When one parent is self-employed, figuring out that parent's income can create a whole new host of issues.  If you are in a child support dispute, you or the other party (or both) are self-employed, and you need help with figuring out incomes, 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!

FAQ on Same-Sex Marriage

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

Ever since the June 26th Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal nationwide, I've been inundated with questions from friends, family members, and former, current and potential future clients.  There are a lot of changes that this ruling brings, and a lot of people don't understand how this ruling affects them.  To that end, with this post, I hope to answer some of the most common questions I have been asked.

What impact will this ruling have on me, as a heterosexual, married person?

The ruling should have no impact on you at all.  The ruling did not change the status of any existing "traditional" marriages - it just added new people to the mix of who could get married.

Will this ruling eventually allow people to a) marry relatives, b) marry animals or inanimate objects, and/or c) marry multiple people at once?

Probably not, no, and maybe.  If the two relatives are both adults, consent to the marriage, and appear to be absent of any coercion, there could be an argument made that the logic applied to same-sex marriage here - that there is a basic right to the dignity of marriage for those who choose it - could allow for this marriage.  I would have two reasons why I would argue otherwise, however.  First, Obergefell was based on the notion that it was state-sanctioned discrimination against homosexuals that caused same-sex marriage to be outlawed - but what group of people is discriminated against when you bar marriage to relatives?  To date, attraction exclusively or primarily to relatives is not known or understood to be an inherent, immutable trait the way we now understand homosexuality to be, so the fact that bans against relative marriage are not discriminatory would likely uphold them.

Second, there could be a compelling state interest in forbidding relative marriage - children.  While states tried to say that same-sex couples' inability to have children was a compelling reason to disallow same-sex marriage this was ridiculous, because we allow many people who cannot have children to get married.  However, in relative marriage, you face the possibility of people who can have children but really shouldn't due to the extensively researched genetic problems that arise when relatives have children together.

To me, while I can see the argument, those two reasons combined would prevent courts from extending Obergefell to incestuous marriage.

As for marrying animals or inanimate objects - this argument has always struck me as absurd.  Marriage can only be awarded to two individuals who consent thereto.  Neither animals nor inanimate objects are capable of offering their affirmative consent to a marriage.  That alone makes Obergefell inapplicable to such marriages.

As for polygamy, this is the toughest.  The two exceptions that I raised which would prevent incestuous marriage to proceed don't apply here.  First, a large number of people belong (or claim to belong) to religious sects that authorize and even require plural marriage.  There is a discrimination argument to be had, then.  Moreover, there is nothing inherently wrong with people in your standard plural marriage having children.  I am inclined to believe that the courts will find that, since there are government financial benefits associated with being married, the government has a compelling interest in limiting the size of marriages so as to prevent the cost of those benefits from getting out of hand.  However, I am also inclined to believe that laws making plural marriage criminal (rather than just unrecognized by the state) are likely to be struck down in the not too distant future.

Will my church be forced to conduct same-sex marriages?

No, no it will not.  How do I know?  It's been fifty years since the Supreme Court said interracial marriages were required to be allowed, and there are still churches that refuse to marry interracial couples without consequence.  The arguments that pastors are going to be rounded up and churches forced to allow marriages to happen inside, are largely ignorant fear-mongering.  This is due to the combination of the free exercise and establishment clauses of the first amendment to the constitution largely forbidding the government from interfering in the internal religious conduct of churches.

Now, note that I'm just talking about churches here.  "Public accommodations" are businesses that offer goods or services in exchange for payment to the general public.  These do not include churches.  These frequently do include, however, wedding photographers, wedding bakers, wedding florists, etc.  Many states have laws banning public accommodations from discrimination on the basis of sexual orientation (along with race, religion, etc.).  In those states, a florist cannot refuse to serve a same-sex wedding any more than she can refuse to serve an interracial wedding or a Jewish wedding.  Public accommodation laws are well-known, and if one's religion will prevent them from following those laws, that person should not be entering the business.

I got married to my same-sex partner in Vermont in 2012 - how does this ruling affect me?

So, your marriage was recognized by the federal government in 2013 due to the Windsor case, so this ruling doesn't affect you particularly.  However, if you moved to Virginia prior to October, 2014, when Virginia began recognizing same-sex marriages, it means you may very well have some property issues here.  For example, if you purchased a home, you couldn't do it as "tenants by the entirety" - a favorable status of ownership that's allowed only to married couples.  It may be worth re-titling your home so you can take advantage of this status.

In short, my recommendation to all people who were legally married to a same-sex partner prior to October of 2014 but lived in Virginia is to consult an attorney regarding both all property you own and your estate planning documents, to make sure nothing needs to be updated.

I married my same-sex partner in a church in Virginia in 2012 - does this ruling mean my marriage must now be recognized by the state?

NO!  If you married in a religious or civil service a same-sex spouse in a state that did not allow such marriages prior to that state allowing them, neither this ruling nor any other court case allowing same-sex marriages retroactively legalized your marriage.  This is because most states have requirements beyond merely getting married in a church to become legally married, and Obergefell did not relieve you of meeting that requirement.

In Virginia, for example, to get married, you must a) get a marriage license, b) get married within 60 days after that license is issued, and c) return the license to the court where you got it within 5 days of getting married.  Before Obergefell (and in Virginia, before Bostic v. Rainey), you couldn't get a marriage license, meaning that your marriage did not comply with requirement a or c.  As a result, you must now go get legally married in order to have your marriage recognized.

Conclusion

While Obergefell finally brought some clarity to issues of same-sex marriage, we still must deal with the realities of more than a decade of such marriages being allowed in some states and not others, as well as in some churches and not others.  This will likely create issues for a few decades to come.  If you have any question regarding the effect of this ruling on your own situation, 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!