As always, before reading this post please review my disclaimer by clicking on the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most common questions I get after a support order is entered in a case, and that I used to get for custody/visitation orders when I handled those cases, is "so, what happens now?" This is quickly followed by a string of "so, what happens if a, b, c, x, y, and/or z happens?" You see, most people understand that support and custody orders can change, but have little comprehension of how. This is because the rules vary across types of orders and courts.
In today's blog post, I will discuss the basics of when and how support and custody orders change.
What court are you in?
As odd as it may seem, it does matter which court your case is in as of your last order. The rules vary somewhat between the Circuit Court and the Juvenile & Domestic Relations Court (for a primer on the differences between these courts generally, you can check out my series on our trial courts starting here). So, your first step is to figure out what court you are in.
If the order you are trying to change was entered in the J&DR Court, and was never appealed, you can be fairly confident that your case is still in the J&DR Court. If it was in the Circuit Court, however, you need to review the Order itself. If the Order contains a provision "remanding" matters related to custody and/or support to the J&DR Court, then you are in the J&DR Court. If it does not, you should still be in the Circuit Court, but check the court file to make sure no one later filed a motion to remand.
Once you know what court you are in, you can file a Motion to Reopen and Modify in the Circuit Court, or a Petition to Modify in the J&DR Court. In the Circuit Court, usually you will have to take care of serving the other side, and getting the case set for trial. In the J&DR Court, they will usually take care of that for you, although you need to check with your local court for their rules.
What kind of order are you trying to change?
The next inquiry is to figure out what kind of order you are trying to change. This is because the standards are slightly different between custody/visitation and child support orders on the one hand, and spousal support orders on the other. As you might imagine, the courts have long ago concluded that it is harmful to all parties involved if people can keep coming back to court and fighting over custody/visitation and support again and again. As a result, various standards have been adopted for determining if a modification should be allowed.
Custody/visitation and child support orders
For custody/visitation orders and child support orders, you have the "material change" standard. The rule basically is "has there been a material change in circumstances that warrants reconsideration of the current order?" It is the party moving for the modification who has the burden to prove that the answer is "yes."
There are several key phrases in here, however, to remember. First, the change must be material. In other words, it can't be minor. A parent missing one visitation session, or having their income go up by $10 a month is generally not going to be considered material. It must be something that actually alters in a noticeable way the reality that was in place when the previous order was entered.
The second key phrase is that the material change must warrant a reconsideration of the current order. A parent relocating, for example, is almost always a material change in circumstances for custody/visitation - but if their move does not alter the child's life significantly, it may not warrant a reconsideration of the award. In the child support context, there may be a material change in income levels, but, for example, a guideline deviation factor that had been used previously might still warrant keeping support the same. Note that a custodial parent intentionally, and without just cause, withholding visitation from the non-custodial parent which that parent is entitled to, is virtually automatically considered a material change in circumstances which warrants reconsideration of the current custody/visitation order.
Finally, it's important to note that even if you prove the material change standard, all that you've done is get the court to say "ok, we can reopen the issue." In other words, that's not the end of the inquiry.
Spousal support orders
Spousal support has its own set of standards as there are three basic types of spousal support orders (you can get more detail about this here). You can have spousal support ordered independently of a divorce (either in the J&DR Court or a Circuit Court Separate Maintenance Decree), you can have indefinite spousal support awarded as part of your divorce, or you can have spousal support for a defined duration awarded as part of your divorce.
For spousal support ordered independently of the divorce, the "material change" standard is used. However, there's also an important note to remember for such support - in some cases it ends automatically as soon as you are divorced. If your separate spousal support award comes from a Separate Maintenance decree, it ends as soon as you are divorced. If it comes from a J&DR case, it's status following a divorce is actually uncertain under the current caselaw, but it may very well automatically terminate as well.
For indefinite spousal support ordered as part of a divorce, the "material change" standard is used in the same way as custody/visitation and child support.
For defined duration spousal support, however, the amount and/or duration can only be modified (up or down) if the moving party proves either that (i) the "material change" standard has been met and that material change was not something reasonably foreseen at the time the support award was entered, or (ii) something the court anticipated would happen when it made the support order, and which was significant in the court making that order, has not happened through no fault of the moving party.
As you can see, defined duration spousal support is complicated to modify. Its "material change" standard is much harder to meet than the normal "material change" standard (since you also have to prove that the material change is not something that could have been foreseen at the time of the award - a very hard thing to prove), and its "something the court anticipated would happen" standard is also very difficult to show.
Like with custody/visitation and child support, however, once you've opened the door to modification doesn't mean that's the end of the case.
I've proven modification can happen... now what?
Once you've met whatever standard you need to in order to get in the modification door, the whole case essentially reopens. All elements need to be re-proven or agreed to. In all cases except indefinite spousal support from a divorce, the same standard is used in judging your modification hearing now as was used in judging the original hearing.
Now, this is where you have to be careful about picking your cases. Note that once this happens, it's actually possible for your situation to get worse. If you are seeking to reduce your child support obligation because the other side's income has gone up, but then it turns out that their work-related child care expenses have also gone up, it's very possible that support will actually increase. So, pick your modification motions carefully.
So, what does all of that mean? Well, for custody/visitation, the judge will have to go through all of the factors in Virginia Code Section 20-124.3 and can then make a new custody and/or visitation order as though the previous one never existed. Now, practically, that doesn't really happen because several of the factors themselves (for example, the parent that has been the primary caretaker of the child) are influenced heavily by the previous orders, but in theory, the judge rules as though he is ordering custody/visitation for the first time.
For child support, this means that the court must gather all information needed to determine the child support guideline numbers under Virginia Code Section 20-108.2, and then consider any deviations under Virginia Code Section 20-108.1(B).
For non-divorce spousal support, the court will again consider the needs of the receiving spouse and ability to pay of the payor spouse. For defined duration divorce spousal support, the court then must again consider all of the factors in Virginia Code Section 20-107.1(E) and, like with custody/visitation, make its award as though it was doing so for the first time (although, again, the previous award will affect some of the factors).
Indefinite spousal support ordered as part of a divorce is the only exception here. While the original award had to be made in accordance with the factors of Virginia Code Section 20-107.1(E), that's no longer the case at modification. Instead, Virginia Code Section 20-109(A) only says that the court may modify the award "as the circumstances may make proper." This language has been interpreted by the Court of Appeals to mean that an indefinite spousal support award from a divorce does not need to be decided based on the previously used factors, but rather the trial court judge now has discretion to make whatever changes he or she thinks are proper given the new circumstances.
Retroactivity
Now, for support orders, I often deal with clients who find out that their ex-spouse is earning substantially higher income months, even years after the fact. They typically want to get back the money that they paid or should have received for all of that time. Unfortunately, I have to be the bearer of bad news.
With two exceptions, child support and spousal support cannot be modified retroactively. In other words, the modification occurs as of the date of the new order, with only two exceptions.
The first exception is that, in recognition of how long the legal process may take, and to discourage intentional foot-dragging, the judge can, in his or her discretion, order that the modification be made retroactive as far back as the date that the other party was served with the modification motion. So, if your ex got her new income in June of 2012, you found out about it in June of 2013, you filed to modify and served those papers in August of 2013, and the hearing on the modification was held and the new order entered in April of 2014, the court could - again, this is the judge's choice - make the modification retroactive as far back as August of 2013, but no earlier, and the judge, again in his or her discretion, could make the new award retroactive only a month or two, or not retroactive at all.
The second exception concerns spousal support (all kinds) where the person receiving support has re-married. When someone receives spousal support, they have an affirmative duty in Virginia to inform the payor spouse of the re-marriage so that the payor spouse can stop paying - since, unless expressly agreed to otherwise in a property settlement agreement, a remarriage of the ex-spouse receiving support automatically terminates spousal support. In that case, where the payee spouse has failed in his or her affirmative duty to inform the payor of their remarriage, then the termination of the spousal support can be made retroactive to the date of the remarriage, and the payee can be ordered to reimburse the payor for all post-remarriage payments, plus interest.
Other than those two exceptions, however, that's it. No retroactive support - so you need to be proactive about finding out if you are eligible for a modification.
Conclusion
The law of custody/visitation, child support, and spousal support modification is very complicated, and can be virtually impossible to navigate without an attorney. If you have questions about a modification for a case you are involved in, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Thursday, April 23, 2015
Friday, April 17, 2015
Relevant Changes in Virginia Law - 2015 Edition
As always, before reading this post, please review my disclaimer by clicking on the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
First of all, my apologies that getting a new post up has taken so long. The last couple of weeks have been insane work-wise, but hopefully will be calming down soon.
We are finally at the point in the year where all legislative work for the Virginia General Assembly has wrapped up, and we know what new laws will be going on the books this year. As I did last year, I have reviewed this year's new laws for ones that are relevant to matters I have posted on this blog. Unlike last year, which saw major changes to the VRLTA and to the child support guidelines, this year's law changes are not substantial changes to blog posts I have made, but they are nonetheless important to know.
As mentioned last year, all laws - unless explicitly stating otherwise - go into effect on July 1st.
Important Change to Defamation Statute of Limitations
In my post on June 5, 2014, I discussed statutes of limitations in Virginia. Included in that discussion is that the statute of limitations for defamation is 1 year, and the clock begins to run as soon as the defamatory statement is made.
Well, we live in a new era in defamation. In the olden days, if something defamatory and harmful were said about you, it was usually pretty easy to find out who did it so you could sue. Not so in the era of the internet where anonymous "trolling" is commonplace. The General Assembly has finally recognized this, and passed HB1635, which states that if the defamatory statement is made on the internet by an anonymous user or a user with a false identity, you can file an action against them as "John Doe" (anonymous) defendants and the statute of limitations will be tolled until you find their identities or you reasonably should have.
A discerning reader might wonder why this is necessary, since normally the filing of a lawsuit tolls the statute of limitations anyways. However, in general, the filing of a lawsuit against anonymous defendants does not toll the statute of limitations because the statute applies to each individual defendant, not simply the case, so the actual defendants still have a right, usually, to be sued within the statutory time period. This new law will create an exception to that.
Retaliatory Conduct Finally Prohibited in Non-VRLTA Leases
I have written again and again about differences between leases governed by the Virginia Residential Landlord and Tenant Act and leases that are not. There is a difference I never covered, however, because I feared an unscrupulous landlord could read my post covering it and engage in abusive conduct. Specifically - the VRLTA explicitly banned landlords from "retaliatory conduct" (otherwise legal conduct done by the landlord as retaliation for the tenant doing something he or she is legally entitled to do) while non-VRLTA leases had no such prohibition. I've handled situations myself where landlords engaged in clearly retaliatory conduct, but as their lease was not governed by the VRLTA, the tenant had no remedy.
This difference has finally been corrected. HB1905 actually makes it easier to prove retaliation than it had been before, and expands the new retaliation definition to also apply to non-VRLTA leases, and expressly prohibits such conduct by non-VRLTA landlords.
Now it's worth noting that the non-VRLTA rule does not have a non-waiver provision - so theoretically this right can be waived in a non-VRLTA lease, but I have a hard time believing that a lease authorizing a landlord to engage in retaliatory conduct is going to go over too well with potential tenants or with a judge.
Post-Majority Child Support for Disabled Children
Another topic I haven't directly addressed in this blog, but is in the background of many of my posts on child support, is the topic of when child support ends. In Virginia, the rule has been, since at least the 1970's, that child support ends when the child turns 18, or, if the child is a full-time high school student living with the custodial parent, then it ends at the earlier date of the child graduating from high school or the child turning 19.
There has been for some time, however, an exception to even that. If the child is permanently disabled, unable to support him or herself, and still living in the home of the parent receiving support, child support could be "continued" for so long as those three conditions (permanently disabled, unable to support self, and living in home of parent receiving support) continued to apply.
Well, litigation ensued regularly over the definition of the word "continued." Some courts held that support failed to "continue" if the support order ever terminated after the child turned 18, and so no disabled child support could be ordered. Other courts ruled that no, support "continued" any time there was child support while the child was still a minor - even if the support had been temporarily terminated, and support only failed to "continue" if there had never been child support at all. Even in those latter cases, however, parents found patently unfair results where formerly married parents got divorced after their disabled child had turned 18 (or 19, depending) and now no support order could be entered.
This year, the General Assembly has sought to undo this confusion and unfairness by passage of HB2383 and SB923, colloquially called "Conner's Law" after a severely disabled child whose father left his mother when he was just over 19 and refused to provide Conner any support. Conner's Law gets rid of the "continue" requirement altogether, and now the only requirement for a disabled child to be eligible for support (if the child meets the permanently disabled, unable to support self, and living in home of parent receiving support requirements) is that the disability must have appeared before the child turned 18 (or 19, if the conditions for support ending at 19 were met).
Conclusion
As I mentioned, not nearly as dramatic a set of law changes affecting my blog as we had last year - nonetheless, these are important changes to know about.
Introduction
First of all, my apologies that getting a new post up has taken so long. The last couple of weeks have been insane work-wise, but hopefully will be calming down soon.
We are finally at the point in the year where all legislative work for the Virginia General Assembly has wrapped up, and we know what new laws will be going on the books this year. As I did last year, I have reviewed this year's new laws for ones that are relevant to matters I have posted on this blog. Unlike last year, which saw major changes to the VRLTA and to the child support guidelines, this year's law changes are not substantial changes to blog posts I have made, but they are nonetheless important to know.
As mentioned last year, all laws - unless explicitly stating otherwise - go into effect on July 1st.
Important Change to Defamation Statute of Limitations
In my post on June 5, 2014, I discussed statutes of limitations in Virginia. Included in that discussion is that the statute of limitations for defamation is 1 year, and the clock begins to run as soon as the defamatory statement is made.
Well, we live in a new era in defamation. In the olden days, if something defamatory and harmful were said about you, it was usually pretty easy to find out who did it so you could sue. Not so in the era of the internet where anonymous "trolling" is commonplace. The General Assembly has finally recognized this, and passed HB1635, which states that if the defamatory statement is made on the internet by an anonymous user or a user with a false identity, you can file an action against them as "John Doe" (anonymous) defendants and the statute of limitations will be tolled until you find their identities or you reasonably should have.
A discerning reader might wonder why this is necessary, since normally the filing of a lawsuit tolls the statute of limitations anyways. However, in general, the filing of a lawsuit against anonymous defendants does not toll the statute of limitations because the statute applies to each individual defendant, not simply the case, so the actual defendants still have a right, usually, to be sued within the statutory time period. This new law will create an exception to that.
Retaliatory Conduct Finally Prohibited in Non-VRLTA Leases
I have written again and again about differences between leases governed by the Virginia Residential Landlord and Tenant Act and leases that are not. There is a difference I never covered, however, because I feared an unscrupulous landlord could read my post covering it and engage in abusive conduct. Specifically - the VRLTA explicitly banned landlords from "retaliatory conduct" (otherwise legal conduct done by the landlord as retaliation for the tenant doing something he or she is legally entitled to do) while non-VRLTA leases had no such prohibition. I've handled situations myself where landlords engaged in clearly retaliatory conduct, but as their lease was not governed by the VRLTA, the tenant had no remedy.
This difference has finally been corrected. HB1905 actually makes it easier to prove retaliation than it had been before, and expands the new retaliation definition to also apply to non-VRLTA leases, and expressly prohibits such conduct by non-VRLTA landlords.
Now it's worth noting that the non-VRLTA rule does not have a non-waiver provision - so theoretically this right can be waived in a non-VRLTA lease, but I have a hard time believing that a lease authorizing a landlord to engage in retaliatory conduct is going to go over too well with potential tenants or with a judge.
Post-Majority Child Support for Disabled Children
Another topic I haven't directly addressed in this blog, but is in the background of many of my posts on child support, is the topic of when child support ends. In Virginia, the rule has been, since at least the 1970's, that child support ends when the child turns 18, or, if the child is a full-time high school student living with the custodial parent, then it ends at the earlier date of the child graduating from high school or the child turning 19.
There has been for some time, however, an exception to even that. If the child is permanently disabled, unable to support him or herself, and still living in the home of the parent receiving support, child support could be "continued" for so long as those three conditions (permanently disabled, unable to support self, and living in home of parent receiving support) continued to apply.
Well, litigation ensued regularly over the definition of the word "continued." Some courts held that support failed to "continue" if the support order ever terminated after the child turned 18, and so no disabled child support could be ordered. Other courts ruled that no, support "continued" any time there was child support while the child was still a minor - even if the support had been temporarily terminated, and support only failed to "continue" if there had never been child support at all. Even in those latter cases, however, parents found patently unfair results where formerly married parents got divorced after their disabled child had turned 18 (or 19, depending) and now no support order could be entered.
This year, the General Assembly has sought to undo this confusion and unfairness by passage of HB2383 and SB923, colloquially called "Conner's Law" after a severely disabled child whose father left his mother when he was just over 19 and refused to provide Conner any support. Conner's Law gets rid of the "continue" requirement altogether, and now the only requirement for a disabled child to be eligible for support (if the child meets the permanently disabled, unable to support self, and living in home of parent receiving support requirements) is that the disability must have appeared before the child turned 18 (or 19, if the conditions for support ending at 19 were met).
Conclusion
As I mentioned, not nearly as dramatic a set of law changes affecting my blog as we had last year - nonetheless, these are important changes to know about.
Thursday, April 2, 2015
Posting Hiatus
Starting this upcoming Monday I have a multi-day trial, and I'm afraid preparations for that are not going to allow me to put a post together next week. Given when that trial may end, and the hearings I have coming up next Friday, I'd put the odds at 50/50 of me having a post next week as well. I apologize for the inconvenience, and should be back in good order soon.
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