When Finding a Lawyer Be Careful What You Wish For

As always, before reading my 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.

I know it has been some time since my last blog post, and as noted last October, you can expect my posts to be irregular and infrequent now, although I do strive to at least try to keep past blog posts up to date, and they are not going anywhere.  Today's blog post will be a little different than my standard format, in that instead of going into a broad principle, I am going to tell a story, and then bring about the point of it.  Nonetheless, I think this is something you should read if you are considering hiring an attorney for your legal needs.  Please note that some specific facts about the story I'm about to tell have been altered so as to shield the identities of those involved.

I have strived, I'm sure not always with success, throughout my career to provide an honest voice when a potential client comes to me about a case.  I try not to sugar-coat things, I try not to make promises I don't know for sure that I can keep, and I try to make sure the potential client has an honest and realistic assessment of his or her case.  I run through best case scenarios, sure, but I also run through worst case scenarios, and discuss what I consider to be the likelihood of each outcome. I'm painfully well aware that this approach to potential clients has cost me clients over the years - after all, I am routinely telling potential clients something other than what they want to hear. My favorite example of this is when potential clients come to me wanting to file an appeal to the Court of Appeals.  The first thing I will tell them, before I even hear a word of the details of their case, is "remember that by my estimate, 85% of appeals fail, so the odds are yours will too."  Nonetheless, I do believe I would rather have fewer clients, but ones who know what to expect, than more clients ready to be disappointed when I cannot deliver what they want.

The value of this approach came to the fore today, and what I saw bothered me so much that I felt compelled to write about it.  Normally this is something I might opine about for my friends on Facebook, but as I thought about it, I realized it more naturally belonged here, so here it is.

I had a consultation with a young woman whose husband had abandoned her a year or two earlier.  She desperately wanted to move on with her life, and came to me about getting a divorce.  I discussed the process with her, what I expected would happen, and the fact that her particular case had some procedural challenges.  She told me she thought my price was right, and that she wanted to hire me as I had come highly recommended to her by someone she trusts.  However, she asked if I could promise her that her divorce would be complete within a month.  Two months at most.  For various reasons, she felt she absolutely needed her divorce to be done within two months.

I told her that I could not make that promise.  That procedural anomalies with her case meant that it would require a minimum of three and a half months to complete, but that four or five months was more likely.  I told her I'd move as fast as I could, but I simply could not promise anything faster than five months, and even that assumed no bumps coming up along the way.  She thanked me, left my office and I never heard from her again.

Today, while I was at a routine filing trip to the courthouse, I happened upon her case file.  Turns out her divorce was finalized this week.  Her consultation with me was in June of 2015.  This struck me so much - that she had come to me desperate for a promise to be divorced within two months, yet here she was finally getting her divorce more than two years later - that I just had to investigate.  And what I found wasn't pretty.

Her divorce was finalized by her fourth attorney.  Her first three had all begun the process for her, then attempted to take various shortcuts around the procedural issues I had discussed with her at our consultation.  It was clear from reading the files that they had been trying to meet her timeline, and in the process, all three attempts failed to complete the divorce and greatly delayed the entire process.  Finally, the fourth attorney did exactly what I would have done, and sure enough, from beginning to end, it took him just over four months to complete the process.

I would note, the fourth attorney's actions did not surprise me.  This is an attorney I know well, and who is on my short list of family law attorneys in Northern Virginia that I myself will refer people to if, for whatever reason, my firm cannot represent them.  This should tell you how highly I think of this particular attorney (after all, referring potential clients is probably the highest praise one attorney can give another within our profession).  So, in that attorney's case, I was not surprised that attorney had done it the right way.  But sadly, I also wasn't all that surprised to see that three other attorneys were willing to make promises they could not keep just to get the client.

In the end, this woman spent over two years waiting to get a divorce she could have gotten in 4-5 months, and probably spent about 3-4 times the legal fees in the process.  And while her request, demand really, was unreasonable, as someone who is not an attorney, she had no way to really know that.  Add in to this that she has other attorneys willing to make these outlandish promises, and it's no real surprise that it took her so long to realize that what I was saying was right.  As attorneys, it should be our responsibility to make sure clients understand the process well enough to know what can or cannot be done.

So, the cautionary tale in all of this is simple.  If you have an attorney telling you nothing but things you want to hear, you should be ready to push back with questions.  If different attorneys are telling you different things, don't be afraid to tell them, directly, what was said by the other attorney.  Listen to their response.  If this woman had reached back out to me, told me what her attorney was planning to do in order to meet her timeline, and asked for my thoughts, I could have explained to her in under 5 minutes why it wasn't going to work.  I never got that chance.

So, if you are looking for an attorney, please be careful.  If you're speaking to an attorney ready to promise that everything you want will be yours, perhaps it is time to speak to someone else.

An Introduction to Family Law Appeals in Virginia

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

Yes, I know this is my first substantive post in a long time.  See my blog status update from October for an explanation.

Introduction

I've always said that one of the best and worst features of the practice of law is that our cases are decided by judges who are, ultimately, human.  This is usually a good thing, because the reality is a great deal of law, especially family law, simply doesn't work as a rote, robotic formula, and needs a human touch to figure out how best to handle the relationships involved.  Nonetheless, the downside of human judges deciding cases is that they can get it wrong, and that's where appeals come in.

In 2014, I wrote a blog post discussing the basics of how appeals work in Virginia.  You can view that post here.  Today, I'd like to touch on a specific type of appeal - appeals in family law cases.  Now, as I noted in my previous post, there are several directions an appeal can go, and in family law cases this can include both an appeal from the J&DR Court to the Circuit Court, and an appeal from the Circuit Court to the Court of Appeals.  Because appeals to the Circuit Court result in a new trial, and don't particularly deviate from the "normal" rules, I don't feel a post is really necessary on that topic, so instead today's post will discuss appeals of family law cases from the Circuit Court to Virginia's Court of Appeals.

Rules for an Appeal

Most all of the rules for an appeal to the Court of Appeals can be found in Part 5A of the Rules of the Supreme Court of Virginia.  If you are involved in appeal to the Court of Appeals, even if you have an attorney (but especially if you don't), you would do well to familiarize yourself with all of the rules in Part 5A (as of March 30, 2017, Part 5A starts on page 455 of the referenced link to the Rules of the Supreme Court of Virginia).

Getting the Appeal Started

So, you've had your trial in the Circuit Court, you lost, and you want to appeal.  The hardest part of any appeal can often be getting it started.  As noted in my 2014 post, appeals in family law cases are heard by the Virginia Court of Appeals, and they are appeals "of right," meaning the merits of your appeal will be considered by the Court of Appeals, and you do not have to petition for permission to appeal.

So, the first things to remember is "thirty days."  You have thirty days from the entry of the final judgment or order in your case in which to file what's called a Notice of Appeal.  If you file after the judge rules but before the order is actually entered, your notice is considered to be filed on the date the judgment was entered, but if you file your Notice of Appeal on the 31st day after entry of the final judgment or order, then you're late.  This is bad because the thirty day deadline is what the court calls "jurisdictional" or "mandatory."  In other words, if you file your Notice of Appeal even one day late, your appeal is dismissed.

So, what is the Notice of Appeal and where is it filed?  Two good questions.  The Notice of Appeal is a document that lays out all the details of the background of the case - what the Court of Appeals will need to know to open your file.  So, it has the names of the parties, the trial court case number, the names and addresses of the attorneys, etc..  It also has other information that will be important for the courts and the other parties to know, such as if you're ordering transcripts or planning to prepare a written statement (more on this in the next section).  The rules for a Notice of Appeal are laid out in Rule 5A:6 and a sample Notice of Appeal is found immediately following Rule 5A:6 in the Rules of the Supreme Court of Virginia.

Now, once you've completed your Notice of Appeal, you actually file it with the trial court, that's what triggers the beginning of the appeal process.  Nonetheless, you also send a copy (so, not the original) of the Notice of Appeal, along with your filing fee, to the Court of Appeals.  Which gets to my next point: fees.  When you file an appeal, you should be prepared to write three checks.  The first will be the filing fee for the Court of Appeals (currently $50), made out to the clerk of the Court of Appeals.  The next two should be your appeal filing fee with the Circuit Court (you should call the Circuit Court to find out how much their appeal filing fee is) and a check for your "cost bond" (currently $500), which is required in order to "perfect" your appeal, and must be paid at the same time as the Notice of Appeal is filed in all appeals of right.  The first check is sent to the Court of Appeals with its copy of your Notice of Appeal and the latter two checks should be made out to the clerk of the circuit court your case is in and filed with the circuit court at the same time that you file your Notice of Appeal.

So, once you've filed your Notice, mailed a copy to the Court of Appeals, and paid your filing fees and appeal bond, your appeal begins.

Completing the Record

Your next task is to "complete the record" in the trial court.  This means that for every hearing in which something important occurred that you want the Court of Appeals to consider, you must submit a transcript or written statement.  Generally speaking, if you had a court reporter at the hearing, you need to submit a transcript from that court reporter for the hearing, and if you didn't, you need to prepare a written statement.  I've seen some cases where there was no court reporter but there was an audio recording and a transcription of the audio recording was allowed as a transcript, but that's not usually ideal.

Rule 5A:8 governs transcripts and written statements.  For each hearing in which you will have a transcript, you must file with the trial court that transcript within 60 days after entry of the final judgment or order, and within 10 days after filing that transcript you must send a notice to the other party that you've filed the transcript.  For each hearing in which you won't have a transcript, you must prepare a written statement that summarizes what happened at the hearing, including the arguments that were made, testimony given, and rulings made by the court.  It is particularly important that all things that happened that you want the Court of Appeals to know about or that might be relevant to your appeal be included in the written statement.  You must file with the trial court each written statement within 55 days after entry of the final judgment or order, and send copies of your written statement(s) to the other side (note there is no requirement to send the other side a copy of the transcript(s) you file, just the notice that the transcript(s) had been filed, so this is a difference between the written statement(s) and transcript(s)).

Once this is done, the other side will have 15 days from the date of the written statement or the date of the notice of the filing of the transcript to object to the transcript(s) or written statement(s) on the basis of being erroneous or incomplete.  Within 10 days after that, the circuit court judge will rule on the objections (the judge may order oral arguments to be held, but is not required to) by overruling the objections, making corrections, and/or certifying the manner in which the record is incomplete.  Once the judge does this, he or she will certify all transcript(s) and written statement(s), and they become part of the trial court record.

Remember that if you fail to file any transcripts or written statements, or have a hearing for which you fail to do so, the Court of Appeals will not consider anything that occurred during those hearings, and if the Court of Appeals finds that the record is not sufficient on which to make a decision, then it may well dismiss your appeal outright, so it is critical that you include the transcripts and/or written statements.

Once this part is done, the trial court record is complete, and shortly thereafter the Circuit Court clerk will (or should, anyways) transmit the record to the Court of Appeals.

Assignments of Error and Contents of the Appendix

Once the record is transmitted to the Court of Appeals, unless and until there is an order otherwise, everything else occurs in the Court of Appeals and you are done with the Circuit Court.  In fact, in family law this is important, because while your case is pending on appeal, the Circuit Court lacks jurisdiction to modify its order, it can only enforce it.  So, if you're appealing a child support order, for example, and then the other side has a big promotion while your appeal is pending, you actually cannot bring a motion to modify child support until the appeal is over - this is something to keep in mind when considering whether or not to file appeals (and we have on several occasions advised clients not to appeal where we had good reason to believe a change in circumstances warranting modification would occur before any appeal could be completed anyways).

Now, once the record is received by the Court of Appeals, the clerk of that Court notifies both sides, and two clocks start ticking, one at 15 days, and one at 40 days.  I will get to the 40 day deadline in the next section.

Within 15 days of the Court of Appeals receiving the record, you must file (again, in the Court of Appeals now) and send to the other side your designations of the contents of the appendix and your assignments of error.  Both of these are critical to your appeal.  Your assignments of error are a numbered list of things you think the trial court did or got wrong, and these are the basic underpinnings of your appeal.  Failure to include an error in your initial list of assignments of error means the Court of Appeals will not consider that error when deciding your appeal.  So, you must in your assignments of error mention all mistakes you believe the trial court made in order to preserve your ability to appeal those mistakes.

Your designation of the contents of the appendix is almost as important.  The "appendix" is a set of documents you will file with the court (discussed in the next section) that consists of elements of the trial court record that the Court of Appeals will need to consider to consider your appeal.  This is a concept developed from the idea that it is unlikely that the entire trial court record is relevant to your appeal, so the appendix narrows down the parts of the record that are actually relevant.  Your designation is simply a list of the items from the record you intend to include in your appendix.

Your designation and assignments of error, which are filed as a single document, as noted are due 15 days after the record is received by the Court of Appeals - as always, of course, you must also send a copy to the other side.  The other side will then have 10 days to file and send you an additional designation of contents for the appendix.  This is important, because while you may put things in the appendix that neither party designated, you must put in the appendix everything either party designated.

An additional point to consider is this - your brief and appendix due date is 40 days after the Court of Appeals receives the trial court record, but the other side's designation due date is 10 days after they receive your designation.  If you wait the full 15 days to file your designation, you won't have the other side's due until 25 days after the record was received, leaving you just 15 days to actually complete the appendix.  If you file and serve your designation on day 2, however, then you'll have their designation by day 12, and have 28 days.  As a result, I always try to file my designation and assignments of error as soon as possible, usually even preparing it before the Court of Appeals has actually gotten the record so that it is ready to file and send as soon as the record arrives at the Court of Appeals.

Brief and Appendix

As noted above, your opening brief and the appendix are both due 40 days after the record is received by the Court of Appeals.  There are many rules for a brief and summarizing them here would be an exercise in futility.  Just note that you're required to have a white cover page, a table of contents, table of authorities, summary of facts, summary of the case, restate your assignments of error, your arguments, and a certification.  You are limited to 12,300 words.  Rules 5A:4, 5A:19, and 5A:20 are the ones to make yourself very familiar with.

While there are many key rules a few to remember are the 12,300 word limit, that you must cite to the record (preferably to the appendix) in your statement of facts, your assignments of error must now cite to where in the record (preferably in the appendix) that error was "preserved" for appeal, and your arguments must cite legal principles and cases, statutes or other authorities to be considered.  You must also follow the rules in Rule 5A:4(b) about binding and the cover page, 5A:19(f) about electronic filing and serving of copies, 5A:20(h) about the certificate and 5A:24(a) about color of the cover page.

Your brief is the crux of your appeal.  This is not the place to hold back - if you don't make an argument in your brief, you lose your right to make that argument on appeal at all.  You should lay it all out on the table and make your case in full in your written brief.

As noted, the Appendix is also due 40 days after the receipt of the record by the Court of Appeals, however it has an additional deadline - it cannot be filed later than your brief.  So, if you file your brief on day 35 after the record is received, then the Appendix also must be filed on or before day 35.  That being said, this should be easy because you want to complete your Appendix first so you can cite to it in your brief.

The rules governing the Appendix are found at Rule 5A:25.  As noted, all documents designated by each party must be included.  Also included should be the pleadings initiating the portion of the case you're appealing, the order(s) you're appealing, the relevant portions of the transcript(s) or written statement(s), and any additional documents from the trial court record you believe the Court of Appeals should consider.  Note that the Court of Appeals generally won't look at anything in the record that's not in the appendix, so if you think it might be relevant, put it in.  You'll need a table of contents, the contents are to be in chronological order of the date they were filed with the court, and you'll need to follow Rule 5A:4(b) and 5A:24(a) regarding the cover pages (which are red) and binding, and 5A:25(b) regarding electronic and physical filing and serving.

Once you've filed your brief and appendix, you can largely sit back and relax - the hardest part is over.

Reply Brief

Once you've filed your brief, the other side has 25 days to file and serve you their brief.  As with their designation, this deadline is based on when you filed, not when the record was received, so if you want the appeal to move faster, you can file your brief earlier than day 40, and their deadline will move up accordingly.

Once you receive their brief, it's up to you what to do next.  Rule 5A:22 allows you, but does not require you, to file a reply brief.  Your reply brief is governed by Rule 5A:4(b) regarding cover and binding, Rule 5A:24(a) regarding cover color (green), Rule 5A:19(f) regarding electronic filing and service (note that Rule 5A:19(a) also limits your reply brief to 3,500 words and 5A:19(b) requires it to be filed within 14 days of the filing of the other side's brief), and Rule 5A:22.  As noted, you are not required to file a reply brief, and if you do, you do not need to reply to everything in the other side's brief.  A reply brief is largely just for if you believe there are important points you want the Court of Appeals to consider in response to the other side's arguments which are not presented in your original brief.

Oral Argument

Once the briefs are all done, the case is given to a panel of three judges on the Court of Appeals.  If, after reviewing both sides' briefs and the appendix, all three judges agree that there is no merit to your appeal, then your appeal will be summarily disposed of.  If, however, any of them think there is at least the potential for merit, the case will be scheduled for oral argument (unless both sides waived the right to have oral argument).

At oral argument, each side gets 15 minutes - appellant goes first, then appellee, then appellant can do a rebuttal with however much of his or her 15 minutes were not used - to present their case.  The judges will routinely interrupt with questions, and having a command of both the facts of the case and the legal principles you are arguing is a must.  You will not have witnesses nor be presenting evidence, the Court of Appeals is only considering the arguments in the briefs, and the record of what happened in the trial court.  I find oral arguments fun, but a lot of people find them to be daunting and intimidating.  Virginia has a great tradition, though, that when oral arguments are over, the three judges get off the bench and go greet and shake hands with both arguers - it's a nice touch of collegiality after what can be a testy 30 minutes.

Ruling and Mandate

Some time after oral argument, the Court of Appeals will generally issue its opinion, which lays out its ruling.  The opinion may be published (in which case it gets printed in the official court opinions and sets binding precedent on future trial courts and Court of Appeals panels) or unpublished (in which case it just binds the trial court and Court of Appeals as to your case specifically).  Then, not long after the ruling is issued, the "mandate" of the court issues, which is what actually lays out the court's order and then returns jurisdiction over the case to the trial court.  In the meantime, motions for rehearing can be filed, or petitions for appeal to the Supreme Court can be filed as well.

As noted above, the circuit court loses jurisdiction while the appeal is pending.  It is not the opinion/ruling, but rather the mandate coming from the Court of Appeals that finally returns jurisdiction to the circuit court.

Conclusion

As you can see, family law appeals are complicated, and the litany of rules to follow can be daunting.  A typical family law appeal to the Court of Appeals takes upwards of a year or longer, and I cannot recommend strongly enough having an attorney familiar with appellate rules and procedures to represent you through the appellate process as otherwise the minefield of rules could easily trip you up and cost you an otherwise meritorious appeal.  If you have a family law case you'd like to appeal to the Court of Appeals (or are defending against an appeal brought by an opposing party), please feel free to contact me by phone at (703)281-0134 or by e-mail at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to thirty minutes, and perhaps most relevantly, I am not geographically restricted within Virginia in terms of cases I can do for a family law appeal to the Court of Appeals (since such appeals rarely require appearances in the trial court).  So, if you're considering whether or not to have a consultation with me on such an appeal, you can disregard the geographical portion of my initial consultation policy (so long as your case is in Virginia and appealing a decision of a Virginia circuit court).

Virginia Law and the Blog Part V - Odd custody child support, modification jurisdiction, etc.

As always, before reading today's blog 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.

Update (4/27/18):  Some of the information contained in this blog post is now outdated due to changes in the law.  See my 2018 Relevant Changes in the Law post for details.

Introduction

Between comments and e-mails, I get a lot of questions about blog posts.  Logically, as I've posted more over time, I've gotten more questions, and sometimes instead of just answering these questions individually, I've felt that answering them for the benefit of everyone is more helpful.  This is why I've developed my "Law and the Blog" series, where I occasionally go back to old blog posts and answer some questions I've gotten about them.  This is the fifth post in that series, with the most recent one having been completed in November.

"You've gone into some detail about how child support is determined when custody is shared between the parents, and how to tell whether or not custody is shared.  What happens when you have two kids, and custody of one is shared, but of the other is not?"

Alas, the law can only do so many things, and anticipating all the situations in which people might find themselves is not feasible.  Where none of the three basic situations of child support (sole custody, shared custody, or split custody) cleanly apply to a case, it's up to the judge how best to go about it.

One of the biggest challenges we face is that our child support guidelines, for a myriad of reasons, are not "per child."  There's one guideline amount for one child, and another for two children that is less than double the amount for one child.  As a result, calculating the support for each child separately then adding the two numbers together does not work here.  In this instance, then, I've seen judges take several approaches.

One popular approach is to calculate support for each situation as though both children were in that situation and then average the two (so, calculate the support as though both children were in a "sole custody" situation, then calculate the support as though both children were in the same "shared custody" situation, then average the two numbers).  Additionally, if both children are technically in a shared custody situation but have different numbers of "days" the court will typically calculate shared support for the two children with the number of days averaged between them.

The above is the most popular approach I've encountered, but another has been to calculate sole custody support for the one child, shared custody support for the other, add the two together, then take approximately 76% of the combined number.  This is because in the guidelines, support for two children is usually (though not uniformly) about 76% of what you would get if you just doubled the number for support of one child.

To compare, I'll use a super simple case.  Father earns $5,000 a month, mother earns $5,000 a month, no health insurance, work-related child care, etc.  Father has custody of both kids, but mother has one kid for 80 days a year (so sole custody) and one for 120 days a year (so, shared custody).

Under the first method, the sole custody support owed by the mother for both kids would be $784 per month and the shared support owed by the mother if she had both kids for 120 days a year would be $376 per month.  Take the average, and you get the mother owing child support of $580 per month.

Under the second method, the sole custody support owed for the one child would be $527 per month and the shared custody support owed for the second child would be $253 per month.  Add those two up and take 76% of the combined number gets you $593 per month.

So, the two methods come to very similar results.

Obviously, the whole thing gets more complicated as more children are added to the mix.  As long as you can convince a judge that your proposed method is reasonable, however, the judge will be fairly free to use it.

"You've mentioned before that there is no set formula for calculating and modifying spousal support.  Could we add one to an agreement and have that enforced by a court?"

Yes, absolutely.  Spousal support is one of those areas where you can do virtually anything you want in a settlement agreement and the court will be required to enforce it.  This means you can choose your current support based on a formula if you wish, you can lay out in the agreement when support can be changed, and you can even lay out in the agreement how the new support amount is to be calculated if it is changed.  The court will enforce that language as written.  You should definitely hire an attorney to get that language ironed out, however, as a court will enforce the order exactly as written, even if it says (implicitly or explicitly) something other than what you meant.

"You've previously mentioned that in a child support modification case, you file for that modification in the same court where the last order was entered.  Neither my ex nor I still live where the last order was entered - do I still need to file for a modification there?"

That depends.  If the last order was entered in Virginia, and either party still lives in Virginia, then you can file where the last order was entered, or you can seek to have that court transfer the case.  To do that, you would file a Motion to Reopen and Transfer in the original court and seek to have the case moved where you wish.  If the non-moving party is still in Virginia, then this would likely be to the locality where the non-moving party lives.  If the non-moving party does not still live in Virginia, then you can seek to have the case moved to the jurisdiction where you live, but don't be surprised if the original court denies the motion if it finds that that court is more convenient for the other party to get to.

If neither of you still live in Virginia, you can open a case in the non-moving party's state seeking registration and modification of the Virginia order under the Uniform Interstate Family Support Act (UIFSA, a uniform law that has been adopted by all fifty states).  Similarly, if your original order was not in Virginia, neither of you still live in that state, and the non-moving party now lives in Virginia, you can file in the J&DR Court of the non-moving party's home jurisdiction a petition under UIFSA to register the out of state order, which then gives the Virginia court the power to both enforce and modify that order.  You can either then file for modification, or you can file for modification at the same time that you file for registration (the modification proceedings just cannot actually begin until the order has been registered).

Action under UIFSA does not require any action to be taken in the original court.  Of note, I am planning to do blog posts on UIFSA, and its near-equivalent in the custody/visitation context, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in the near future.

"My ex has failed to pay support for years.  I filed a Rule to Show Cause and after an extensive hearing, the judge found that my ex owed the money he did, but then blamed me for not forgiving some of the support payments when my ex was unemployed a few years ago - even though he never moved to modify - and refused to hold my ex in contempt or threaten to hold him in contempt.  As a result, I'm back to square one with a court order my ex now feels emboldened to violate, but my lawyer is telling me I can't appeal the ruling.  Why?"

Contempt of court is an ancient matter that finds its roots in British Common Law.  This power represents the court's ability to vindicate itself when someone treats the court with improper disrespect - such as by violating a court's order.  Since contempt of court is a court acting on its own behalf (rather than that of a litigate) to protect itself from conduct evident to that court, by common law, contempt of court rulings could not be appealed at all.

Virginia has modified this rule by statute, allowing appeals any time someone is found in contempt.  However, the law expressly only applies to an appeal of a finding of contempt itself.  The law says nothing about a court's decision not to find someone in contempt.  Since a statute must overturn common law principles expressly for those principles to no longer apply, the failure to say anything about a court not finding someone in contempt means that the common law rule that no appeal is allowed is still applicable to those findings - no matter how erroneous the court's reasoning may have been.

Conclusion

As always, keep the questions coming.  If you need legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (you may also want to check out my initial consultation policy first).  Our initial consultations are free for up to half an hour!

A Primer on Virginia Law Regarding Adultery and Spousal Support

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

Introduction

I had a divorce case once where the trial judge, prior to issuing his ruling, noted that in his experience, almost every divorce was fundamentally about either sex or money (or both).  My experience has been a little more nuanced - and I've seen a large number of cases that were not about sex or money but really about control and abuse - but the judge's observation was not a complete misrepresentation.  Of course, when a divorce is primarily about sex, it's usually "sex with someone who's not your spouse."

I've generally stayed away from adultery on this blog because, frankly, it doesn't play the important role in the law regarding divorce that it did 40 or 50 years ago.  The one post I did do about two years ago was not really about the law regarding adultery and divorce, but rather about how you prove adultery has occurred.  I did, however, in that post make a brief reference to several ways adultery can impact a divorce case, including noting that "the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this)."  A new Court of Appeals opinion this week, however, has led me to believe it's time to expand on that brief note.

In today's blog post, I will offer a brief primer on the interplay of adultery and spousal support in Virginia law.

What the Law Says

So, for an issue like this, it's worth looking at what the law actually says.  The relevant law can be found at Virginia Code Section 20-107.1(B).  It reads:

"Any maintenance and support shall be subject to the provisions of sec. 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A(1) of sec. 20-91.  However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties."

So, that's a mouthful!  First of all, ignore the first part of the first sentence - if you follow the links you'll see that's just referring to a provision of law that says how spousal support can be modified.  Additionally, if you follow the link to section 20-91(A)(1), that's just the section of law that states that adultery is a ground of divorce.  Finally, note that this provision requires only that an adultery ground of divorce "exists in such spouse's favor" - it does not require that adultery actually be the basis on which the divorce is awarded - or even that the non-cheating spouse seek a divorce based on adultery.

So, the "plain English" (or as close to it as I can get) is this - "No permanent spousal support can be awarded to a spouse who has committed adultery, unless it can be proven by clear and convincing evidence that failing to award support would be a manifest injustice, considering the relative degrees of fault during the marriage and the relative economic circumstances of the parties."

So, let me break down each part of this a bit further.

"No permanent spousal support..."

So, what does "no permanent spousal support" mean?  If you weren't aware of the nuances of the law, you might think that this applies to awards of spousal support "for life" and not to awards of spousal support for a "defined duration" (as in, saying from the outset support will be for five years - for more on defined duration vs. indefinite spousal support, see my general blog post on spousal support).  You would be incorrect, however.

A "permanent" spousal support award only means that this is the permanent, final award of the court, as opposed to a "temporary" spousal support award issued at a pendente lite hearing held while the case was pending.  If the law were referring to spousal support without a set end date, it would use the legal terms of art of spousal support of an "indefinite" or "undefined" duration.  As a result, this provision of law applies to all final spousal support awards, regardless of duration, and the Court of Appeals has held that this even applies to simple reservations of spousal support (a provision of law that allows the court to decline to award spousal support at this time, but reserve for a party the right to request it again later).

Now, you'll also notice something critical - if this provision applies to final (permanent) spousal support orders, you might think it does not apply to the temporary pendente lite orders.  This is correct - courts very often award pendente lite spousal support, even when there are accusations of adultery.  If those accusations are later proven, the trial court can order the adulterous support payee to pay back some or all of the support received pendente lite, but the Court of Appeals has held that the trial court is not required to order that any of it be paid back.

"... clear and convincing evidence..."

In order to qualify for the exception to the rule barring spousal support for an adulterous spouse, you must prove that you are eligible for that exception by "clear and convincing evidence."  Clear and convincing evidence is probably the vaguest standard of proof we have in law.  It is more than a "preponderance of the evidence" (which requires only that a circumstance be shown to be more likely to have occurred than not to have occurred), and less than "beyond a reasonable doubt" (where the proof is so strong that the only doubts of the circumstance having occurred would be ridiculous).  The best explanation I've ever heard given for it is that something meets this standard "when, rather than just thinking 'yeah, it probably happened,' you find yourself thinking 'yes, I am convinced that it did happen' even if you have a few lingering doubts."

The "official" Virginia definition of clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established."

And that's about as good a job I can do for it.  "Clear and convincing evidence" is almost always defined primarily simply as "more than a preponderance, less than beyond a reasonable doubt."  I've heard others say it requires being "about 75% certain" (as opposed to 50.1% for preponderance or 95% for beyond a reasonable doubt).  That does seem about right.

I do feel compelled to point out the interesting dichotomy here, though - while you are required to prove your eligibility for the exception by clear and convincing evidence, the party alleging adultery also must prove that adultery occurred by clear and convincing evidence.

"... manifest injustice..."

While it may not sound like it, "manifest injustice" is actually also a legal term of art.  In Virginia, the term "manifest injustice" is considered synonymous with "miscarriage of justice."  In other words, it must be something so outrageous that, if allowed to stand, would shake people's faith in the justice system itself or strike the average person as severely unfair.  An example of something considered a "manifest injustice" in other areas of law in Virginia would be when a plaintiff files a lawsuit within the applicable statute of limitations period, but while his lawsuit is pending the law is changed to shorten the statute of limitations period such that now the time within which he filed would have been outside the limitations period.  This has happened several time in Virginia, and each time the courts have routinely used a provision of Virginia law that allows them to refuse to apply new laws to already pending cases when doing so would result in a "miscarriage of justice."

"... relative degrees of fault..."

This is exactly what it sounds like - if the adultery was the primary reason the marriage fell apart, then the "relative degrees of fault" tilts heavily against the adulterous spouse.  If, however, there was much more going on, then this balance can change.  For example, in one case, the Court of Appeals upheld a manifest injustice finding where it was determined that the non-cheating spouse had nonetheless spent 20 years harassing, belittling, and abusing (both physically and emotionally) the cheating spouse.  Other situations have come up where both spouses were engaged in adultery - especially if the one seeking spousal support was not the first one to do it.

"... relative economic circumstances..."

This is the other part of the manifest injustice inquiry - the parties' relative economic circumstances.  The Court of Appeals has recognized that one of the main purposes of the exception in the law is to ensure that an instance of adultery does not leave a spouse destitute.  Economic circumstances are more than mere income differences, however - assets must also be considered.  In the Court of Appeals decision rendered this week (the case is called Mundy v. Mundy), the Court reversed a trial court finding of manifest injustice.  The trial court's finding was based on the fact that the husband earned more than $850,000 per year, while the wife (the one who had repeatedly committed adultery) earned nothing and only had an earning capacity of about $30,000 per year.  The Court of Appeals noted that while that income differential was clearly out of balance, the wife was receiving as part of the property settlement in the case, assets and money worth more than $1.8 million.  The Court of Appeals noted that it could hardly be said to be a manifest injustice not to award spousal support to a "millionaire adulteress."

The most important word in the whole passage:  "... and..."

The Court of Appeals has, time and time again, noted how critical it is for parties and trial judges to remember that the Code uses the word "and."  As in, manifest injustice is shown considering both the relative degrees of fault of the parties and their relative economic circumstances.  As in the two must be considered together.

This can be both a benefit and a detriment to the adulterous spouse seeking support.  This can be a benefit because if both of those factors tilt in that spouse's favor, but neither on their own would be a "manifest injustice," the two combined might be.  It could go against that spouse, however, because perhaps one of those factors on its own would constitute a manifest injustice, but then the other is tilted so strongly the other way that the two combined don't meet the standard.

An example of the first might be an assettless spouse who earns about a third of what his or her spouse does but this spouse had only committed adultery once and the potential payor had committed adultery first and multiple times.  Neither would likely be considered a "manifest injustice" on their own, but the two combined very well might.

An example of the second issue, however, could be an assetless spouse with no income and no real earning potential seeking spousal support from a millionaire spouse, but where the millionaire spouse was pretty much a model spouse, while the one seeking the support had engaged in multiple adulterous affairs for years while also physically abusing the non-cheating spouse.  The economic differences on their own would likely be considered a "manifest injustice," but work in the misdeeds of the cheating spouse, and it probably won't be.

Affirmative Defenses

Now, if your spouse has committed adultery and wants spousal support, but you don't think your spouse will qualify for the statutory exception, you're not necessarily out of the woods yet.  Adultery has several affirmative defenses (for more about affirmative defenses, see my post on the subject), and if any of those apply, then the bar to spousal support will not apply.  The two most important (primarily because they are the most common) are the defenses of "connivance" and "condonation."  Connivance is a defense that states that the adultery essentially occurred as a result of your own intentional doing.  This is not "you stopped having sex with your spouse so that made it ok for your spouse to have sex with other people" rather this is "you intentionally sought to have them have sex with other people."  Common situations where this occurs are so-called "open marriages" where the spouses agree in advance that they can have sex with other people, sex with your spouse involving one or more additional people at the same time, or (sadly, yes, this occurs) situations where your spouse tricks you into having sex with someone else (though it's also worth noting that "adultery" itself requires that the sex be consensual, so a non-consensual encounter like this or any other form of rape cannot be used as the basis for an adultery finding).

"Condonation" could also be called "forgiveness."  This is where you learn of your spouse's adultery after the fact and either a) approve of it, or b) forgive it.  Condonation can be both express or implied - if you expressly forgive your spouse, condonation obviously applies, but even if you just imply that you have forgiven your spouse (even if was not your intention to do so) it still applies.  The most often time that I see "implied condonation" is when a spouse learns of his or her spouse's adultery, but then still lives with and has sex with his or her spouse afterwards.

If connivance or condonation is proven, then spousal support can still be awarded to an adulterous spouse.  Note, however, the connivance or condonation can only apply to sex that is reasonably contemplated by the connivance or condonation.  For example, if there's an act of express or implied condonation, the non-cheating spouse cannot then use against the cheating spouse the adultery the non-cheating spouse knew of at the time, but the non-cheating spouse can still rely on adulterous acts the non-cheating spouse was not aware of at the time, or which occurred after the express or implied condonation.

What about adultery by the payor?

You might notice that this post talks almost exclusively about adultery committed by the party seeking spousal support.  You might be thinking "what about the party potentially paying spousal support?"  Well, in those cases, it's a bit more complicated.  There's no statutory bar involved (except that they also would not be able to receive spousal support), but it is still relevant.  In addition to being a consideration in the manifest injustice analysis, it would also be considered a "negative nonmonetary contribution to the well-being of the family" when the court considers the statutory factors in figuring out how much support to award and for how long.  Nonetheless, adultery definitely does not have nearly as dramatic an effect on the potential payor of spousal support as it does on the potential payee.

Conclusion

Adultery is a complicated area of family law, but when it comes to spousal support, it has some critical implications.  If you are involved in a spousal support case which includes allegations of adultery, you would best be served by speaking with an attorney.  I, and other attorneys at my firm, routinely handle these matters, and you can contact us at (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!

Virginia and US Supreme Court Vacancy Crises - The Basics

As always, before reading my post, please review my disclaimer by clicking the link above or by clicking on this link.

Introduction

The other day I had someone ask me what I thought about the "vacancy crisis" on the Supreme Court.  My response was "which one?"  See, while you probably already know about the US Supreme Court having a bit of a vacancy crisis arising from the death of Justice Scalia and no one really knowing when or if that vacancy will be filled, in Virginia our own Supreme Court has been dealing with a vacancy crisis of its own since last summer.  Neither seem likely to end soon, and both have gotten me a good number of questions.  So, with this post, I'll give a basic breakdown of what the issues are in each vacancy and where I see them likely to be headed.

Background on the Virginia Supreme Court Vacancy

Last summer, Virginia Supreme Court Justice Leroy Millette announced his retirement.  Now, in Virginia, judges are elected by the General Assembly without any input from the Governor.  However, when the General Assembly is not in session, the Governor can appoint someone who will sit on the bench until 30 days after the next session of the General Assembly begins.

Last summer, the Republican-controlled General Assembly was not in session, so the Democratic Governor (Terry McAuliffe) decided he would make a recess appointment, as had been done 31 times previously for the Virginia Supreme Court over the past 100 years.  All 31 previous times, even when the Governor and General Assembly have been of different parties, the Governor's choice has then been elected to a full term on the Court, so Governor McAuliffe took this appointment very seriously.  He reached out to the bar associations and members of the General Assembly Courts of Justice Committees for recommendations.  Finally, he settled on Fairfax County Circuit Court Judge Jane Marum Roush - a judge recommended to him by Dave Albo, the Republican Chair of the House Courts of Justice Committee, and unanimously supported by the major state bar associations due to fairly impeccable credentials.  With Del. Albo standing next to them, Governor McAuliffe announced his pick of Judge Roush shortly thereafter, and she ascended to the Supreme Court (this was also personally exciting for me, as I have appeared in front of Justice Roush more times than any other judge in my legal career to date).

Well, the Republican leadership in the General Assembly pitched a fit.  They were mad that Governor McAuliffe spoke to the Courts of Justice Committees, instead of the actual Republican leadership (Speaker of the House and Senate Majority Leader) something that some previous governors had done, but others had not.  The Republican leadership openly admitted that Justice Roush was well qualified for the position, but due to this alleged "breach in protocol," they announced that, for the first time in more than 100 years, they would kick the Governor's choice off the bench and put forward their own nominee.

In August, the General Assembly reconvened for a special session, but in the Senate, where Republicans have only a 21-19 majority (and the Lieutenant Governor, who casts the tie-breaking vote, is a Democrat), all did not go according to plan.  Retiring Republican Senator John Watkins called the Republican Party out on its shenanigans, and refused to support their efforts to advance their own nominee.  As a result, no new justice was named.  The Senate then, along the same 20-20 vote with the tie broken by the Lieutenant Governor, voted to adjourn their session, without the consent of the House of Delegates.  This move was of questionable constitutionality, since the Virginia Constitution forbids one house of the General Assembly from adjourning without the consent of the other, but the syntax of the constitutional provision makes it very unclear if that requirement applies to special sessions or only regular sessions.  As a result, the Senate determined on its own that its actions were constitutional, the (Democratic) Attorney General agreed, and there was not much the House of Delegates could do.  As a result of this adjournment, once the 30 days had elapsed ending Justice Roush's term, Governor McAuliffe re-appointed her.

Fast forward to the current session, Republicans still hold a 21-19 majority in the Senate, and they have dug in their heels.  The Speaker of the House of Delegates declared that Republicans can never support Roush now because she a) lobbied legislators to keep her job, and b) accepted the re-appointment that Republicans claim was unconstitutional.  With Senator Watkins out of the Senate, most observers considered Justice Roush doomed, but then freshman Republican Senator Glen Sturtevant, the very Senator who was elected to Senator Watkins' former seat, announced that he himself would not support the Republican effort to remove Roush.  Then, a Democratic Senator, Louise Lucas, announced she would support that effort, only to change her mind a few hours later after meeting with Governor McAuliffe.

So, where are we now?  The thirty days on the current session has expired, Justice Roush is now off the Supreme Court bench, but the election of a new justice any time soon seems unlikely.  There are about thirty days left in the General Assembly session when it will end automatically, and require a two thirds majority of each house to extend (not likely).  Governor McAuliffe has already announced that if there remains a vacancy at that time, he will appoint Justice Roush yet again.

Background on the US Supreme Court Vacancy

This vacancy has much less back story required than the Virginia vacancy.  On February 13th, Justice Antonin Scalia passed away in his sleep.  Scalia was seen as the mouthpiece of the conservative wing of the Supreme Court.  However, the Constitution authorizes the President to appoint Supreme Court Justices, who must then be approved by a majority of the US Senate (interestingly enough, the President can also appoint someone who automatically takes the bench until the next session of Congress, so in this case until 2017, if the Senate is in recess, as it is this week, but President Obama has opted to not use that power, which has not been used to put a Justice on the US Supreme Court since the 1950's).

With Barack Obama sitting as President, most expect he would nominate a liberal justice to replace the conservative Scalia.  As a result, many senators in the Republican-controlled Senate have already said they will refuse to even allow a vote on a President Obama nominee, insisting that the next president should pick.  This would create a vacancy that could last an unprecedented 340+ days.  As of now, Obama has not yet announced a nominee, but has declared he will put one forward.

Implications of the Vacancies

While both courts have a vacancy at the moment, this means each court has an even number of justices (6 in Virginia out of the usual 7, and 8 in the US Supreme Court out of the usual 9), however, the impact is much more profound in the US Supreme Court than in Virginia.  This is for a couple of reasons.

First of all, Virginia has the concept of "senior justices."  These are justices who have reached a certain age and number of years of service on the court, and have retired from "active duty" on the court.  There are currently four senior justices.  In any given case, where there are less than seven justices available (traditionally due to a justice being sick, unavailable, or recused from a case, but the presence of a vacancy can also be a reason), a senior justice can be called on to sit on the case, and cast a vote and write opinions just as if he or she was still an active justice.  As a result, it is unlikely that the Virginia Supreme Court will face any split decisions as a result of this vacancy.  Moreover, from a political standpoint, the Virginia Supreme Court has had a conservative/Republican majority of either 4 or 5 for some time - Justice Millette was seen as a moderately liberal/Democratic justice, as has been Justice Roush.  As a result, the vacancy is unlikely to change the balance of power on the Virginia Supreme Court.  Additionally, the Virginia Supreme Court has much fewer "political" cases than the US Supreme Court, so divided cases, or at least ideologically divided cases, in the Virginia Supreme Court are actually fairly rare.

The US Supreme Court, however, is quite different.  The US Supreme Court has had since the late 1980's and early 1990's a 5-4 conservative/Republican majority (although Justice Kennedy, a part of that majority, at times votes with the court's liberal wing).  Justice Scalia's death not only leaves the court with 8 justices, but it leaves the court with 4 liberal justices and 4 conservative justices.  While the US Court system does have the concept of "senior justices" and there are presently three of them (former Justices O'Connor, Souter and Stevens), senior justices can only sit on Circuit Court of Appeals panels, not on the Supreme Court.  As a result, it is very probable that as long as the vacancy remains, we could have a slew of 4-4 decisions.  In the case of a tied decision in the Supreme Court, the lower court decision stands, but is not binding precedent on the rest of the country.  As a result, major hot-button constitutional issues likely cannot be decided until the vacancy is filled.

How I see things playing out

Setting aside what I'd like to happen or what I think should happen, I honestly don't foresee either of these crises resolving any time soon.  The Republicans clearly have the power to block any Obama nominee, and the Republicans in the Virginia General Assembly have basically backed themselves into a corner on Justice Roush.

My prediction in Virginia is that the disagreement will not resolve this session and the session will end with a vacancy, at which time Governor McAuliffe will re-appoint Justice Roush.  At some point, I believe cooler heads will prevail and Justice Roush will be elected to a full term on the court, although one possible way out for everyone would be for President Obama to nominate Justice Roush to a seat on the federal 4th Circuit, which several people have suggested.  Regardless, I expect that by this time next year, this crisis will have been resolved, likely with Justice Roush serving a full term on the Virginia Supreme Court, but I do not anticipate that to happen this session.

My prediction in the US Supreme Court is that President Obama will nominate DC Circuit Court Judge Sri Srinivasan.  Judge Srinivasan is probably the most qualified "democratic" jurist in the country, and in a normal year would be a largely non-controversial pick.  Given that 2016 is an election year, however, and that Judge Srinivasan has the potential to tip the balance of the Supreme Court, I expect the Republicans in the Senate to still refuse to give him a vote.  This will become an issue in the election.  Regardless, I have trouble seeing anyone picked by Barack Obama being confirmed to this seat, and I expect that a year from now, the US Supreme Court will still have a vacancy, and the new president's pick will be going through the confirmation process.

Virginia Divorce Uh-Ohs: 5 Big Legal Mistakes You Can Make in a Divorce

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.

Update:  Some of the information contained in this blog post is outdated due to changes in the law.  Please review the 2018 and 2020 Relevant Changes in the Law post for details.

Introduction

I can say over and over again that family law in general, and divorce law in particular, is too complicated for most people to go it alone.  That you really should have an attorney to represent you in the divorce process.  That the cost of an attorney is generally worth it, even in "simple" cases.  Yet, time and again, we have clients walk in our doors who represented themselves for some or all of their divorces, and now want us to clean up the messes they made.

With that in mind, knowing that at least some of you still won't hire an attorney and will try to do it yourself, in today's blog post I will discuss five of the biggest legal mistakes people make in their divorce cases that I've seen, many of which cannot be fixed or undone after they've happened.  Please read and take heed.

1.  Agreeing to pay indefinite spousal support without a modification mechanism.

This is by far the most common mistake I see that people have made for which there is absolutely nothing I can do to fix it.  I deal with many people who understand that, when things change, child support can be modified, even when the child support is fixed by a signed agreement.  What many people don't realize, however, is that the same is not true of spousal support.

The Virginia Code contains a provision stating that when two parties to a divorce sign a spousal support agreement, the court is prohibited from ordering anything contrary to that agreement.  As a result, any spousal support agreement you sign is permanently binding on the court.  This means that, unless your agreement itself spells out how and when spousal support can be modified, the spousal support can never be modified without the other side agreeing to that modification.

This is important to remember, because an amount that sounds reasonable for you to pay now may not be so reasonable when you're sick, disabled, retired, laid off, or your spouse suddenly hits the $20 million lotto jackpot - but if you signed a spousal support agreement without a built in modification mechanism, then none of that matters, you're still stuck paying, and if you can't, then you could end up found in contempt of court and find yourself in jail.

This is why I've often told clients that if they are going to pay support indefinitely, they're better off getting that ordered by a court than they are agreeing to it - since court ordered spousal support can be modified.  So please, whatever you do, do not sign an agreement that commits you to pay a certain amount of spousal support without a guaranteed end date or a modification mechanism.

2.  Agreeing to pay child support for your adult child without a modification mechanism.

Your love and care for your child doesn't end when that child turns 18, so for many parents, there is a gut instinct that says their support shouldn't end then either.  So, while Virginia law terminates child support at age 18 (or, if the child is still living at home after turning 18 and is a full time high school student, then the earlier of turning 19 or graduating from high school), many parents agree to support their child past age 18 - with frequent termination dates I see being age 21, 22, or graduation from college.

While this is an admirable choice for non-custodial parents to make, the courts no longer view this support as "child support."  Once the child is no longer an age where the court can order support, all the protective mechanisms that kick in for court ordered child support goes away, including the court's power to modify support.  As a result, once the child reaches the age where the court can no longer order support, the agreement governs the support.  This means that if the child support was ever modified, it automatically reverts back to what it was set at in the agreement, and becomes unmodifiable, much like agreed spousal support.

And, like agreed spousal support, the way around this rule is to build in a modification mechanism into the agreement.  The most common one I use is "Upon the child reaching the age of majority, child support shall remain the same as it was for the last payment due prior to the child's majority, and shall be modifiable in the same manner as if the child were still a minor."  Include that in the agreement, and you're golden, but otherwise you can end up with some very wacky results.

3.  Not taking action to protect marital assets.

I'm always surprised to discover how much people think they know about divorce law vs. how much they actually know.  Rarely is this gap greater than it is in the field of post-separation use of marital funds.  I've had multiple clients walk in the door saying they discovered their spouse had spent x huge sum of dollars of jointly owned funds since separating, and asking me to get it back.  Here's the thing - the Court of Appeals says not so fast.

Under Virginia Law there are two types of post-separation uses of marital funds - proper purposes and waste.  When funds are used for proper purposes, the money is gone.  When they are wasted, then the person who wasted those funds must reimburse the "marital estate."  Note, however, there's no middle ground.  There's no "unfair" or "uneven" or "just used for one party's benefit."  If money is used for a proper purpose, even if it solely benefits one party, it's gone, and you cannot get it back.

So, what constitutes a "proper purpose"?  This is literally everything except what one would reasonably call waste (solely unnecessary expenses).  According to the Court of Appeals, "proper purposes" include things like rent, the mortgage, groceries, other living expenses, a child's school tuition (even private school and college tuition), and even paying your own attorneys' fees.  The appellate opinions on this are so strong that many attorneys, myself included, will often advise clients with no income or funds of their own to take some of the marital funds before they separate to live off of until a support arrangement can be set up.

There are actions you can take, however, to prevent this from happening.  You can get into court pretty quickly to get a judge to freeze marital accounts.  Now, if your spouse earns a lot less than you, you might get ordered to pay some support in the meantime, so you have to calculate if that is a risk you are willing to take - but you do need to understand that if you don't take steps to protect your marital assets, they could be taken, and there could be nothing you can do about it once they are gone.

4.  Failed to object to an appealable order.

As an attorney who does handle family law appeals, every now and then someone walks in my door to appeal an order they had lost on in the trial court while representing themselves.  To date, every single person in this situation who has walked in my door has shown me a final order in which they did not list any objections, and then their time to file a motion to reconsider has passed.

To appeal a case, you must show the Court of Appeals that you objected to the order at the time it was entered in a manner sufficient to allow the trial court to fix its own error before you appeal.  This can be done in two ways - either by listing your objection on the order itself, or by filing and getting a ruling on a motion to reconsider.  If you fail to object on the order itself, anything you cover in a motion to reconsider which has been denied will generally be accepted by the appellate courts, but remember that once 21 days from entry of the final order have passed, the court loses its jurisdiction to rule on the motion to reconsider, so unless a suspending order is entered, if that time runs out without a ruling on the motion, you're out of luck.  As a result, by far the safest bet is objecting on the order itself.

Objecting on the order is fairly easy.  With rare exception, you are given the option to "endorse" every order - this is where you sign at the end of the order indicating that you've read it.  Above your name, there will likely appear the word "Seen."  The simplest way to object is to write in there "Seen and objected to because [list of what you object to and why.]"  While saying "Seen and objected to" on its own is not sufficient, it is sufficient, if you have nothing else to add, to say "Seen and objected to for the reasons stated in open court."  However, no matter how good your case is for appeal, if you have no objection and no motion to reconsider ruling, you likely have no appeal.

5.  Ignoring discovery.

Once when I was about four months in to my current job, I had a potential client walk in the door to ask for representation at his divorce trial a month later.  He had been representing himself to that point, so I asked to see discovery.  When I dug in, I found he'd never sent discovery requests to the other side (it was now too late), and not only had he failed to respond to their requests, but an order had been entered forbidding him from presenting any evidence at all at trial.  Needless to say, at that point, there was little good my representation is going to do.

Discovery is serious and ignoring it has serious consequences.  Failing to respond to the other side's discovery requests and get you hit hard with court sanctions.  Failing to make discovery requests of your own can leave you with absolutely nothing to go on in court.  In short, ignoring discovery is practically just giving away your whole case.

There's not much I can add to this one but this occurs far more often than you think.

Conclusion

If you're getting divorced, get a lawyer.  There are far too many legal pitfalls and problems for most people to handle on their own.  If you don't, however, please at the very least remember these big mistakes I see all the time.  Obviously these aren't the only mistakes I see, but these are perhaps the ones that are the combination of most common and most damaging.  If you'd like to consider hiring an attorney to help you avoid these mistakes (or try to fix the ones you've already made), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (although I would advise you to review my initial consultation policy first).  Our initial consultations are free for up to half an hour!

 

Virginia Circuit Court - Trying Civil Cases in Circuit Court

As always, before reading this post, please read 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

Three weeks ago, I began a four part series covering the basics of trying civil cases in each of Virginia's three trial courts.  In that post, I provided a basic introduction to the three courts and a basic breakdown of what kinds of cases they hear.  Two weeks ago, I covered trying cases in the Juvenile and Domestic Relations District Court.  Last week, I covered trying cases in the General District Court.  Today, in the final installment of the series, I will cover handling civil cases in the Circuit Court.

Differences from County to County

Like J&DR and GDC, Circuit Court procedures vary from county to county.  In my experience, however, amongst the three courts, Circuit Court is the court in which the procedures vary the least from county to county.  So while I will again be focusing on Fairfax County's procedures, you can be fairly confident that most counties in Virginia will be the same or very similar.

Typical Case

Again like J&DR and GDC, different kinds of Circuit Court civil cases have different kinds of procedures.  As a result, this post will talk about a "typical" case for the most part, and then have a section at the end discussing some "atypical" cases.  It is worth noting, however, that the vast majority of cases that the Circuit Court hears tend to fit in the "typical" case category.

In Circuit Court, I would consider a "typical case" to be a regular lawsuit for money, a divorce case, a case seeking declaratory judgment, and similar cases.

Step 1:  File your Complaint

Cases in Circuit Court are generally initiated by a "Complaint."  The Complaint lays out the facts that you allege entitle you to judgment, along with what judgment you are seeking.  Before 2006, when our courts of law and courts of equity were merged, a law case was initiated with a "Motion for Judgment" while an equity case was initiated with a "Bill of Complaint," but after the merger, both of those types of filings got combined into a new filing type simply called a "Complaint."  That being said, attorneys who have been practicing for decades can have trouble adjusting, even now, so you may occasionally still see a "Motion for Judgment" or "Bill of Complaint" come up - just know there's no functional difference today between those and a "Complaint."

Now filing a Complaint is trickier than filing a Warrant in GDC or a petition in J&DR.  This is because a Complaint is free-form, so there is no "form" to just fill out like in GDC, and Circuit Courts do not (for a wide variety of reasons) have public intake offices with intake officers authorized to take your issues and type them up like in J&DR.  This means you are going to be largely on your own in terms of crafting your Complaint, and failing to include something you needed to can be fatal to your case (see my post on cases dismissed on technicalities for more on that).  As a result, while it's generally a bad idea, in my opinion at least, to file cases in GDC or J&DR without a lawyer, it's generally an even worse idea to file a case without a lawyer in Circuit Court.

Anyways, once you complete your Complaint, you bring it, along with your filing fee and service of process fee (assuming you want the sheriff to serve the Complaint), to the Circuit Court in which you are filing and file your Complaint.  Your case is now open.

Step 2:  Await an Answer

After you have filed your Complaint and it has been served on the defendant, the defendant has 21 days to file an "Answer."  If the defendant was served personally, or if he was served by "substituted" service (service made on a family member who is 16 and older and lives in the same house as the defendant), the defendant is in default if he does not file an answer after 21 days.  If the defendant was served by posted service (Complaint was posted on front door of defendant's home), you must also mail a copy of the complaint to the defendant, along with notice that the suit is pending, and that the defendant must file an Answer within 21 days of service or within 10 days of receiving your letter, whichever deadline is later.  If 21 days after service and 10 days after mailing (the mailing can be done before the 21 days are up) have passed and there is no Answer filed, the defendant again is in default.

If the defendant is in default, you can proceed to obtain a default judgment (except in divorce cases) - but the process for doing this in Circuit Court varies too widely from case type to case type for me to really get into here.

If the defendant does file an Answer, then we have a live case.

Step 3:  Term Day or Scheduling Conference

Now, in terms of actually setting a trial date, the counties do vary widely.  Most counties use a process called "Term Day."  This is one day every month where attorneys with civil cases pending can come to court and schedule their cases for trial.  In most counties, the parties to the case choose when they go to Term Day - but this does not have to be by agreement.  One party will decide it is time, and file a Notice with the court, copy sent to the other party, setting the case for the next Term Day.  In some counties, however, the court will automatically schedule your case for Term Day.

Other counties, including Fairfax, use an entirely different procedure.  In these counties, once an Answer is filed, a "scheduling conference" is set.  This is a date that can be pretty much any time during any month where you appear before the court clerks to set your trial date.  You only appear before a judge if there is a dispute about the trial date.

Regardless of the procedures your county uses, the purpose is the same - this is where you will set the date of trial, and the estimated duration of trial.

Step 4:  Prepare for Trial

Note that step 4 can be done before step 3, after step 3, or both.

Preparing for trial in the Circuit Court is much like the other courts, except you automatically have discovery available, and you can conduct depositions.  During this time you will typically engage in discovery, potentially retain expert witnesses, interview and prepare witnesses, and otherwise prepare for your trial.

Step 5:  Trial

A trial in the Circuit Court is much like in the other courts, except that, if the case is eligible and either the plaintiff requested it in his Complaint or the defendant requested it in his Answer, your case can be heard by a jury.  All of the usual rules of evidence and procedure apply, and at the end the judge or the jury will rule.  Frequently an order will not be entered that day, but rather a hearing date will be set in the near term future so that the attorneys can write up the order to be entered and submit it on that hearing day to be entered.  It is not uncommon, however, in the case of a simple lawsuit for money for the judgment order to be entered the same day.

Step 6:  Post-Trial

As the Circuit Court is the highest trial court, there is no appeal of right to another court for a brand new trial - the Circuit Court must have done something wrong for you to get a new trial.  In order to file an appeal, you must file your notice of appeal within 30 days of entry of the final judgment or order, along with the appellate filing fee.  Your appeal bond, if you have one, will be due at the time your appeal is perfected.  This means that, in the case of an "appeal of right," your appeal bond is due at the same time as your notice of appeal.  For an "appeal by petition," you only owe an appeal bond if and when your petition is granted.  For more on the appellate litigation process in Virginia, you can review my post on the topic.

Some "atypical" cases

As I mentioned above, not all cases follow the above-listed process.  Below I've summarized some important to know cases that do not follow these exact procedures:

• Appeals from J&DR and GDC:  As I've mentioned before, almost any judgment in the J&DR Court or General District Court can be appealed to the Circuit Court for a whole new trial.  Those appeals do not follow the exact procedures outlined above, however.  Instead, in most counties, the appeals are automatically set for a Term Day.  Once that Term Day is done, however, the same procedures as above apply.  Note that some courts, including Fairfax County's, actually just sets a trial date for General District Court appeals, but they will usually be more open to continuing that date if necessary than the court would be for other types of continuances.

Honestly, that's the only type of common case that is "atypical" that I can think of - as I mentioned before, most cases in the Circuit Court are "typical."

Conclusion

The Circuit Court, as the court of "general jurisdiction" hears probably the largest number and range of civil cases of the three trial courts Virginia has.  Practice there can be perilous for those who do not know its rules and procedures well.  If you have a case coming up or that you would like to file in the Circuit Court, 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!

Getting a Second Chance in Virginia: Motions to Reconsider After Trial

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

[ADDITIONAL DISCLAIMER:  In the 3+ years since I posted this blog entry, I've received numerous inquiries about filing motions to reconsider in criminal cases.  Please note that I am not a criminal attorney.  The procedures outlined here apply only to civil cases.  As far as I know, there are similar procedures available in criminal cases, but that is outside of the field I practice and outside my expertise to give advice on.  If you are considering a motion to reconsider in a criminal case, this is not the blog post for you.]

Introduction

Most people think that if you lose a court case at trial your only options are to accept defeat or appeal.  Many people don't recognize, or far too readily overlook, a third option - a motion to reconsider.  A motion to reconsider asks the judge who ruled against you to reconsider his decision, and will present to that judge some reasons why the judge should think again.  While this might seem foolish (is the judge really going to reverse himself?), motions to reconsider, in my experience at least, actually do have a success rate that is only slightly lower than the success rate of appeals - all for a fraction of the price.

With that in mind, today's blog post will cover some of the basics of doing a motion to reconsider.  It is important to note that for today's post I am speaking of motions to reconsider only in the Circuit Court.  While available in the General District and J&DR Courts, they are much less widely used or useful there.

Why File a Motion to Reconsider

So, to start off with, you might wonder what the advantages of a motion to reconsider are.  For someone who does not want to just accept the court's ruling, the biggest advantage is that a motion to reconsider is much less expensive than an appeal.  While an appeal is a long, expensive process, a motion to reconsider is simply a single motion.  In my experience, a motion to reconsider typically costs about a tenth as much as an appeal (with some appeals being many magnitudes more expensive than that).

More importantly, however, a motion to reconsider does not take away your right to file an appeal, so if the motion doesn't work out you have not lost very much, and in fact may have strengthened your appeal.  This is because there is a rule in appellate litigation that you cannot appeal an issue unless your objection to the court's ruling was brought to the court's attention and ruled on by the court.  If you screw up and don't do this, but raise the issue in a motion to reconsider, the appellate courts have held that you have met your test.  In other words, if you fail to preserve an issue for appeal, you will likely reverse that failure if you include the issue in a motion to reconsider, actually saving your ability to appeal.

To that end, a motion to reconsider is perfect for the party who does not want to simply accept the court's ruling, but either does not want the cost of an appeal or wants to strengthen a possible appeal.

How a Motion to Reconsider Works

After the court rules, and the order is actually entered, your time to file a motion begins.  Your motion will need to discuss the issues you have with the ruling and all bases in fact and law for why the ruling was wrong.  It is important to note, however, that when presenting facts you can only rely on facts and documents that were evidence in trial.  A motion to reconsider is not the time to raise new evidence, especially if you could have gotten that evidence during trial.  That being said, if there is a new ruling from an appellate court that comes after your trial court's ruling which directly relates to your case, that new ruling can be included in your motion to reconsider.

Once your motion is done you need to submit it to the judge.  If you are in a one-judge courthouse, that is easy.  If not, you need to go to judges' chambers and ask the clerk there to submit it to the judge who actually entered the order you are seeking to have reconsidered.  In most counties, you do not request a hearing - a hearing will only be scheduled if the judge wants one.  Also, in most counties, if the other party files a motion to reconsider, you do not file a response unless the judge requests one.  These rules vary from county to county, however, so you should check what the rules are for your county (or better yet, hire a local attorney).

The judge will then review the motion and grant or deny it.  If granted, the judge may simply alter the order, the judge may order a whole new trial, or the judge could do something in between, it's really up to the judge.

Deadlines

So, how long do you have to file a motion to reconsider?  There actually is no set deadline, you can file such a motion as long as the court continues to have jurisdiction over the case.  So, how long is that?  Well, it is as long as the case is pending, plus 21 days.  So, if the order you want reconsidered is not the final order of the case, and the case is still pending, you could wait several months if you wanted to (although it is very unlikely you will be taken seriously if you do).  If, however, it is a final order, Virginia Supreme Court Rule 1:1 takes jurisdiction away from the trial court after 21 days.

So, what does that mean?  It means not only must your motion to reconsider be filed within 21 days after entry of the final order, it must be ruled on within those 21 days.  If your motion is filed in 5 days but the judge doesn't rule on it before the 21st day, that's it, the motion cannot be considered further.  This is actually not a denial of the motion (so if you filed your motion to fix a failure to preserve an issue for appeal, you have lost that ability, since your motion can no longer be ruled on), the motion just dies.

Now, you might be thinking "but it takes time to prepare the motion, and the motion may be complex, how does all that get done within 21 days?"  Well, a judge has a power to "suspend" a final order while reviewing your motion.  To do that, however, you have to request that the judge do so, and you usually have to file a suspending order along with your motion.  The judge has the right to refuse to suspend the order, but they rarely do.  The result is that I usually try to file both my motions and suspending orders within about 17 or 18 days of entry of the final order.

If the order is suspended, the terms of the order are generally still in force, it is simply being suspended from being "final."  If the judge denies your motion to reconsider, the suspension is lifted.  However, when an order has been suspended, the 30 day deadline for filing an appeal starts from when the suspension ends, rather than when the order is entered, so you can wait until the motion is ruled on to file your appeal.

Success Rates

I don't have a scientific study of success rates for you, but in my experience, motions to reconsider are only a little bit less successful than appeals (remember, however, the vast majority of appeals are unsuccessful).  The most successful motions tend to be ones where the judge clearly misread evidence, or there was a dispositive appellate court case that no one realized existed before trial.  Beyond that, however, your chances of success tend to dwindle.  Nonetheless, I have never seen a judge who does not take a motion to reconsider seriously.  For one thing, most judges are honestly concerned about getting their rulings right, and will correct themselves if convinced they got it wrong.  If nothing else, however, judges hate being overturned on appeal, and they know that a motion to reconsider means an appeal is more likely than in your typical case.  As a result, a judge will typically review the motion closely to try to prevent there from being anything for which they could be overturned on appeal.  As a result, you should not laugh off the possibility of a successful motion to reconsider just because it will be considered by the same judge who ruled against you to begin with.

Conclusion

A motion to reconsider is an important option for a party that has lost at trial which allows the party to avoid having to simply accept the ruling, but also provides the party an opportunity to avoid jumping straight into an appeal.  If you have had a ruling go against you and would like to file a motion to reconsider, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!