Virginia Family Law in the Age of COVID-19

As always, before reading this 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.


Introduction

I know it's been a long time since my last blog post (for those who are curious, I did a post back in October of 2016 noting that my posting rate was going to drop dramatically, though I don't think I anticipated even then how dramatically), but for those who haven't noticed there's a bit of a crisis going on in the world, and it affects just about every aspect of life.  Family law situations are included.  In the past week, I and many other family law attorneys have been bombarded with questions.  It struck me that a blog post was warranted.

This blog post is going to have two parts.  In the first part, I will give a brief explanation of what the Coronavirus outbreak means for the legal system in Virginia.  In the second part, I will address four of the most frequently asked questions I am seeing.  I hope that this post can relieve at least a little anxiety during this difficult time.

Impact of COVID-19 on Virginia Legal System

On March 16, 2020, the Virginia Supreme Court declared a judicial emergency in all trial courts in Virginia.  One of the main impacts of this declaration is that no "non-essential" and "non-emergency" trials or hearings will be held.  What this means as a practical matter is that the only criminal cases that will be heard involve cases where the defendant is currently incarcerated (rather than out on bond), and the only civil matters will be emergency type matters - protective orders, emergency custody/visitation matters (for example, parental kidnapping), civil commitments, etc.  Of some note, eviction proceedings currently appear to not be considered "essential" or "emergency" matters - as a result, while no official order has been given to stop evictions during the pandemic, evictions will be a practical impossibility due to courts not hearing the cases (and self-help being prohibited for residential evictions in Virginia).

Now it's important to understand that this is aimed at keeping people out of the courthouse.  The courts themselves are not closed.  There is plenty of non-essential, non-emergency business that can go on - just not if a hearing is required.  You have an uncontested divorce?  You can still submit the paperwork and get it finalized.  You need to get a lawsuit started?  You can still file it and have it served.  The court is operating, it's just limiting its requirements for appearances in person.  Further, filing things in person in court is still allowed, but discouraged.  Courthouse security has been ordered to disburse any large gatherings - as a result, you are encouraged to mail any filings you have to the court or call the clerk's office and see if they have a preferred alternate procedure (some courts are adopting outdoor drop-boxes, for example).

Further, during the judicial emergency all deadlines are being tolled.  There's some debate about exactly what that means, but at a minimum, it means if you have a trial court deadline (say, to file an Answer, respond to discovery, etc.) which is due during the emergency period, at a minimum it is now not due until after the emergency is done.  That said, it's always best to meet your original deadlines if possible.

Finally, the judicial emergency by law can only last up to three weeks, so this one is set to expire on April 6th.  However, the Virginia Supreme Court is allowed to renew the emergency, and I will be shocked if that does not happen.

Now, you may note that all of this is for trial courts.  No judicial emergency has been declared in our appellate courts (Court of Appeals and Virginia Supreme Court).  All deadlines there remain the same.  However, the Court of Appeals has now requested that all filings (as opposed to just briefs and appendices, which had previously been the rule) be made electronically, and oral arguments will be done by phone through at least the end of June.  The Virginia Supreme Court has made no changes so far except moving their upcoming slate of oral arguments to being by phone.

If you have a current court case going on, I would strongly recommend reaching out to your attorney and asking how all of this impacts your case.

Now, with that brief summary out of the way, the family law questions I'm seeing a lot of:

My business has closed due to the outbreak and I'm making no money - do I still have to pay spousal/child support?

The short answer is yes.  The court order requiring your payment remains in full effect.  Now, first of all, if eligible, you should immediately pursue unemployment (some states have waived the waiting periods and increased payouts already) and/or the new emergency sick leave policies, but it's possible you won't be eligible for one or both of those.  Otherwise, I'd suggest you consider the same options I suggested for government employees during a shutdown.  There is one big problem with that list, though.  Option 2 - filing a motion to modify and getting a pendente lite hearing ASAP - is not available.  A pendente lite support hearing is unlikely to be considered essential or an emergency.  That said, option 4 is, while not necessarily advisable, at least slightly less dangerous in this situation.  Why?  Unless your failure to pay support is leaving the other party destitute, a contempt proceeding for failure to comply is also unlikely to be considered essential or an emergency.  This means that by the time you could realistically have a contempt proceeding brought to court, you will likely have income again, and be able to get yourself out of the contempt.  This is in no way a guarantee, however, so you should tread carefully.

Option 1, trying to reach an agreement, is always the best answer.  If you can't do that, then option 3, sucking it up and paying, is your best bet as long as possible.  Regardless of what you do, however, you should still consider filing and serving a motion to modify immediately.  This would allow the court to potentially make some retroactive modifications to your support obligation once the dust settles to take into account the difficulties you are encountering now.  However, the court can only go back as far as the date you filed and served your motion, so the longer you wait to do that, the less retroactive modification will be possible.  You should speak with an attorney (over the phone - not in person!) as soon as possible.

I don't trust my child's father to be practicing proper social distancing - do I still have to let him have his visitation?

This is a little tricky.  A court order is a court order, and you are expected to follow it.  If, however, you believe allowing the other parent to have visitation actually endangers the child, or anyone the child comes in contact with (maybe the other parent is not taking social distancing seriously, maybe they're three states away and visitation violates CDC's travel advisories, etc.) it is very likely that the court will say this is an emergency matter, and will allow you to make a motion to suspend visitation for the time being.  As a result, you should contact your attorney right away if you are in this situation.

The reason it is so important to be proactive is that withholding visitation will, very likely, also be seen as an emergency in many courts, which means you could be brought up for contempt fairly quickly.  Moreover, there is a decent possibilities some police departments will forcibly enforce the existing court order.  As a result, if this is a real concern you have, you should definitely take action first - do not simply unilaterally withhold visitation.

My ex agreed to let me stop paying support until I get back to work - what do we need to do to enforce that?

Court ordered support cannot be waived or reduced without a court order.  If your ex has agreed to a temporary modification, that's wonderful, but you still need to convert that agreement into a court order.  Talk to your attorney and get an agreed order drafted up.  Once signed by everyone, it can be submitted to the court and will become fully enforceable once entered by a judge.  Again, courts are not closed, and an agreed order does not require a hearing, so this is something that can be done even during the judicial emergency.

My wife and I are separated in contemplation of divorce, but she's been staying with her elderly parents who are at high risk from COVID-19.  We'd both feel better if she was back home and not around them - can I let her move back in without restarting our separation clock?

One of the painful realities of family law is that generosity and good intentions can often backfire if you aren't careful.  This kind of situation can be ok, but you have to be very careful about how you do it.  Read up on how separations are lost and separation under the same roof so you can take the precautions necessary.  Pay particular attention to the fact that you need an adult witness to testify to your continued separation - this may be difficult during the social distancing period.  However, if you get that squared away, you should be able to do it.

Conclusion

The current Coronavirus outbreak is impacting all aspects of life - including our legal system generally and family law specifically.  If you are involved in a family law matter and are concerned about how all of this impacts you, please review our initial consultation policy, and if you qualify feel free to give us a call at (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up your initial consultation.  Our initial consultations are free for up to 30 minutes!  Please note that we are not accepting in-person consultations until the current crisis passes - all consultations will be by phone or e-mail until then.

Reconciling in Virginia - The Law When You Work Things Out

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

Introduction

What's the best thing I, as a family law attorney, can possibly hear from a divorce client?  Well, would you be surprised if I told you my favorite phone call from a divorce client is the one that starts with "Sam, stop working on my case, we've decided to reconcile"?

When I began practicing family law, I had big plans in mind for how I was always going to try to convince my clients to reconcile first, recommend counseling, anything to make it work.  It turned out, though, I had bought into the pop culture hype that people rush into divorces these days, when in reality they really don't (I dive into this a little further in my blog post discussing how the divorce rate is actually much lower than 50%).  As a result, by the time people come to me about a divorce, the odds are they've already tried most everything, and the marriage is already broken beyond repair.

Nonetheless, life happens, and while it's not nearly as often as I'd once hoped, the reality is I've had several cases over the years now that ended not with a Final Divorce Decree, but with the couple back in the same home, happily moving on with their lives together.  I even got an invitation once to the wedding of a couple whose divorce (from each other) I had handled a couple years earlier.

Now, you might look at this and say, "oh, well, there can't possibly be legal consequences from reconciling!  That's just a return to how things were - so everything resets, right?"  Well, it's actually not that simple.  The reality is, depending on how far along you were in your divorce process, what kinds of orders were entered, and whether or not you have kids, there are legal implications from a reconciliation, and actions that you have to take in order to protect yourself going forward.  In this post, I will discuss some of what happens under the law when you and your spouse begin the divorce process, but then ultimately work things out.

Simplest Case:  You've Separated, But That's It

So, the simplest case is that you separated from one another, but that was it.  No agreements were signed, no court orders were entered, no papers signed.  You just each lived apart for a while, then decided to get back together.  Here everything is simple - there really aren't legal steps you need to take.  Just resume living together.  If one of you was renting a place and are leaving that rental, make sure you talk to the landlord if you need to terminate your lease early.  But from a matrimonial law standpoint, you're set.

Slightly Tougher:  You Have a Signed Agreement

Now, let's go to the same scenario, but you've also already signed a separation or property settlement agreement and begun abiding by its terms.  However, let's assume still nothing's been filed in court, and then you reconcile.  There are a few things to know.  First, any transfers of property, changes of name on accounts or loans, etc., will survive your reconciliation.  So, if you want to get things back to how they were you will need to go through that process again.  This is particularly important for real estate, where you want to be able to take advantage of the benefits of being tenants by the entirety (a form of joint ownership only available to married couples).  Second, understand that by law a separation or property settlement agreement is terminated upon reconciliation, however, if your agreement has a reconciliation clause in it, it may survive your reconciliation.  In that case, you'll need to decide how, or if, you want the agreement to survive - particularly what happens to any support obligation while you are back together - and you should consider signing an amendment to put those changes into effect.

Remember that just because you worked things out now doesn't mean something won't go wrong again some day.  If, for example, your agreement obligates you to pay support of $1,000 a month, you reconcile and don't change anything, and then separate again in 5 years, it's possible your spouse will then come after you for 5 years of back payments ($60,000!).  You may have defenses to that claim, but they wouldn't be a guarantee - edit your agreement now, when you're on good terms.

What if Orders Have Been Entered?

Now, taking it to the next level, you might be asking what happens if custody, visitation, child support and/or spousal support orders have been entered before you reconcile?  Well, the first thing to do is figure out what kind of orders they were.  Were they pendente lite orders (orders entered after a short hearing just to determine what arrangements will be while your case is pending) or final orders?  If they were pendente lite orders, you can simply withdraw (or non-suit) the case in which those orders were entered, and by operation of law pendente lite orders terminate the moment their case terminates.  If they were final orders (say, from the J&DR Court), however, you will need to actively terminate the orders.  To do this, you will need to file a petition with the court that issued the order(s) (unless venue was transferred by the order(s)) seeking a modification based on a material change in circumstances, and then submit an agreed order terminating the order(s).

Again, the issue here, much like with agreements, is primarily protection if things go wrong down the line.  If you are reconciled for five years but then split again, you don't want to have to prove that you adequately supported your child while you were all living together to make up for your not directly paying the ordered child support.  You may be able to defend against the back support claim, but it's not a guarantee - and it could get very expensive in legal fees.  It's always safer to just not have a lingering order.

What if We Divorced?

Sometimes a reconciliation doesn't happen during the divorce process.  Sometimes it takes that time fully and completely away to realize that you've made a mistake, or that you've each grown.  So, yes, we do sometimes see reconciliations of couples that have already completed their divorce.

What you need to do in this event is going to be largely similar to the prior section, except that you almost assuredly only have final orders in place, not pendente lite orders.  Moreover, if you re-marry, any spousal support obligation would terminate at that point.  However, custody/visitation and child support orders would not, and still need to be taken care of.

There is an additional concern also at this point with property.  If you never transferred any real estate or similar property prior to your divorce, then upon your divorce you became tenants in common in any real property.  If you get re-married, this does not get automatically undone, you will need to actively re-title your property in order to become tenants by the entirety again.  Additionally, any accounts, retirement funds, life insurance policies, etc. in which you named your spouse as your beneficiary had those beneficiary designations automatically revoked at the time of your divorce.  Even if you never notified the companies of the change, you will need to re-filed your beneficiary designations in order for your spouse to again be your beneficiary.

Finally, when you divorce, if you divided any retirement accounts, it is likely that you had an Order or Orders entered to effectuate that division (frequently called Qualified Domestic Relations Orders, or QDROs).  For any defined contribution plans (401(k)'s, etc.) the division has likely already been completed, so you each now have your own accounts - it's fine to keep things that way.  For defined benefit plans (pensions, etc.), however, you will need to get an Order entered terminating the prior division Order, and get that new Order to the account administrator.  Otherwise, when you retire, you might be surprised to have money taken out and sent to your spouse.  While if you are still together at that point it may not matter, it would still be an inconvenience, and there can be administrative expenses involved - better to get that taken care of now.

Conclusion

The best news I can get as a divorce attorney is that my client and his or her spouse have found a way to work things out and have reconciled.  Nonetheless, my work does not end there, as I still need to ensure my client protects himself or herself and takes the legal steps necessary for the reconciliation to be smooth and complete.  As always, the smartest thing you can do if you are reconciling and aren't sure what your legal needs and obligations are as a result would be to consult an attorney.  If you have been going through a divorce (or are already divorced), are planning to reconcile, and want to know what you legally need to be doing, feel free to review our initial consultation policy above and then to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up a consultation.  Our initial consultations are free for up to half an hour!

Pets and Divorce in Virginia: Who Gets the Dog?

As always, before reading today's blog post, please check out 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

What's the most contentious issue in divorce cases that has nothing to do with kids or money?  In my experience, it's pets.  It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families.  The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law.  One of the biggest areas of law that can see animals at center stage is divorce law.

Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really?  Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet.  No wonder you might not want to just walk away from it.  In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here).  There is actually published case law in Virginia regarding the disposition of a family dog.

The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.

First and Foremost: Pets are Property

No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property.  That's so important a point that I'll say it again - by law in Virginia, pets are property.  In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa.  Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.

Marital Property vs. Separate Property

Let's say you marry someone who already has kids over whom they have custody.  You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent.  Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce.  Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children.  The same does not apply, however, for pets.

If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse.  This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).

One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply.  This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet.  On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).

Division by Agreement

Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement.  Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.

As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect.  If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that.  However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.

Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.

Division by Court

If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court.  As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3.  This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor.  Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."

For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet.  Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.

It's important to note that most judges still view the division of pets this way.  As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on.  Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.

However, some judges have taken a different view.  Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession.  What does that mean?  It means custody and visitation.  Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law.  The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.

The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity.  Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.

All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.

A Brief Note About Protective Orders

Pets' status as property has meant many bad things for pets over the years.  One of the worst has been in the context of protective orders.  We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty.  Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.

In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders.  This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one.  Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets.  This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.

Conclusion

While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue.  If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call 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!

Not Paying for the Rest of Your Life - Terminating Spousal Support in Virginia

As always, before reading this 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.

Introduction

If you've been ordered to pay spousal support (formerly known as "alimony") as a result of your divorce in Virginia, you probably have one question - when can you stop?  The answer to that question is somewhat complicated, and depends in part on whether your support was agreed to or court ordered, whether or not the reason you want payments to stop is "self-executing," and whether there are any lingering issues.

In this blog post, I am going to do a basic overview of the law regarding the termination of spousal support.  Please note that I am referring to spousal support ordered as part of a divorce (either by the court or by contract) - not spousal support ordered in the J&DR Court, Separate Maintenance, or pendente lite spousal support (for more on the different types of spousal support, see my blog post on the subject).

What can cause spousal support to be terminated?

So, to start off, you might want to know in what situations existing spousal support can be terminated.  There are, in fact, seven situations in which ongoing spousal support terminates:

1. The support payor dies;
2. The support payee dies;
3. The support payee remarries;
4. The support payee cohabits with another "in a relationship analogous to marriage" for more than one year;
5. If support was ordered for a defined duration, the defined duration ends;
6. There has been a "material change of circumstances" since the original support order and the court orders support eliminated; or
7. Another condition set in the parties' agreement has occurred.

So, where does all of this come from?  Numbers 1 through 4 are found in Virginia Code Section 20-109.  Number 5 is a natural result of a court being authorized to order or the parties being authorized to agree to a defined duration of support.  Number 6 is a result of the court's power to modify support (also found in Code Section 20-109).  Number 7 is a result of parties' power to set support by agreement in a manner the court must honor.

Exceptions to spousal support termination

So, as you might imagine, all of the above have exceptions.  Numbers 1 through 4 can be waived by agreement (note, however, that unlike most issues with spousal support in agreements, waiving numbers 1 through 4 can only be accomplished expressly - such as by saying, for example, "spousal support will not terminate upon remarriage of the payee" - silence, or even saying something like "spousal support cannot be modified or terminated except as stated in this agreement" keeps numbers 1 through 4 in effect).  Number 5, if the support was set by a court order, can be overcome because defined duration support can be extended to a longer duration or to indefinite support if a motion to modify is filed prior to the expiration of the support and the court grants it.  Number 6 is not available for support set by agreement unless the agreement expressly allows for it.  Number 7 is only available in support set by agreement.

One of the terminating conditions has occurred - now what do I do?

So, say you think one of the terminating conditions has occurred - you might be wondering what you do next.  Well, that depends in part on whether or not the termination is what we call "self-executing."  A termination event is self-executing if its occurrence is obvious and indisputable - if there can be no reasonable argument as to whether or not something has occurred.  In the list above, numbers 1, 2, 3 and 5 are always self-executing (so long as they are applicable to your case), while Numbers 4 and 6 are never self-executing.  Number 7 can be self-executing, or it can not be, depending on how the agreement is written.

If you are dealing with a situation that involves self-executing support termination, you are free to simply stop paying when the event occurs.  However, if you are dealing with a situation that is not self-executing, you must file for your termination in court, and continue paying until the court rules you no longer have to.  If you stop paying, even after a terminating event has occurred, if it is not self-executing you can be found in contempt of court and rack up a substantial arrearage (the court can only make the termination date effective the date you filed your motion, no earlier).

Now, I would note that last year we saw a Court of Appeals opinion that reigned in the harshness of the non-self-executing rule, but it was vacated when a motion to rehear was granted, and the parties settled before rehearing, so the Court of Appeals opinion actually is not good law right now and there's no guarantee a different panel of the Court of Appeals would reach the same conclusion (even that panel was a 2-1 decision), so we must assume that the rules regarding non-self-executing terminations remain in effect.

How to file the motion

If you are dealing with a situation that solely involves termination of support (say number 4 above, or one of the conditions laid out for termination in an agreement that isn't self-executing), then you file a "Motion to Reopen and Terminate Spousal Support."  If, however, your reason for wanting support to terminate could also be a reason for wanting it to be reduced if the court determines termination isn't proper (such as in most cases where number 6 above would apply), you should file a "Motion to Reopen and Terminate or Reduce Spousal Support."

Reasons to go to court with self-executing terminations

Now, despite what I said about above self-executing termination events, the reality is there are some situations where you might want to go to court anyways.  First and foremost, if you believe a self-executing termination event has occurred (such as the payee's remarriage) but you are wrong, you could be hit with contempt and a large arrearage.  If you file in court to get an order terminating your support, you'll be protected from that possibility.

That being said, there are a couple other reasons to potentially go to court even with a self-executing termination.  For example, if the reason your support is terminated is because your ex has re-married, you may have a claim to get some of your previously paid support back.  Specifically, Virginia Code Section 20-110 places an affirmative duty on a payee former spouse to tell the spousal support payor if he or she remarries.  If the payee spouse fails to inform you of the remarriage, and as a result you make payments after the remarriage, you are entitled to be reimbursed those payments plus interest, costs and attorneys' fees.

Another reason is that if you ever fell behind on your payments or your ex ever claims that you missed a payment and you and your ex do not agree on how much you still owe, you may want to get a court order terminating your support since it will also establish what arrearage, if any, you owe and how and when it is to be paid.

Conclusion

Terminating spousal support is almost as complicated as establishing it.  Doing it without an attorney can set you up for a whole lot of trouble.  If you are paying spousal support and think it should terminate (or if you are receiving it and your ex has stopped paying improperly), 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!

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!

Annulments in Virginia - A Brief Primer

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

Introduction

As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world.  Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with.  As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).

In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments.  In today's post, I will do a very brief primer on what Virginia law is regarding annulments.

Advantages of Annulment vs. Divorce

Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get?  Well, annulments do offer several advantages.  Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order.  Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place.  Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.

Void vs. Voidable Marriages

Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages.  In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into.  In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry.  Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry.  A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem.  A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.

So, what kinds of invalid marriages are void and what kinds are voidable?  The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:

• Bigamous marriages;
• Incestuous marriages;
• Marriages where either party is under 18 without consent of their parents;
• Marriages where either party is under 16 (with an exception for pregnancy).

As you can probably guess, prior to 2014, same sex marriages were also void, and prior to 1967, interracial marriages were also void in Virginia.

Some examples of invalid marriages that are merely voidable are:

• Marriage based on some form of fraud;
• Marriage involving at least one party that lacked capacity to consent;
• Marriage where one party was impotent at time of marriage;
• Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
• Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
• Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
• Marriage where either party had ever been a prostitute without the other's knowledge;
• Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).

Fraud

So, the most common form of annulment we see is a claim of fraud.  Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth.  Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.

If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).

Cohabitation and Two Year Marriage Rule

After all of that, however, we get to a big catch.  For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years.  Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.

This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.

Conclusion

Annulments are an ancient element of family law that is rarely available and even more rarely useful today.  Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while.  If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do).  Our initial consultations are free for up to half an hour!

Virginia Law and the Blog Part II - More Common Questions About Past Blog Posts

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

Introduction

About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written.  I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had.  I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post.  To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.

As I said last time, sit back, relax, and see what you can learn from the questions of others.

"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees.  Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up.  I just had a consult with a lawyer who charges a 'refundable retainer.'  What is that?"

Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy.  It sounds like that's what's happening here - the lawyer is actually charging a fee deposit.  That being said, I cannot be certain without reviewing the actual fee agreement.  It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully.  Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.

"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to.  Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip.  I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones.  What should I do?"

No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous.  The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable.  I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client.  In smaller communities, however, this happens regularly.

Here's the thing to remember - the other lawyer can talk to you about anything other than the case.  Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you.  He won't want his son's field trip ruined any more than you want your daughter's.  This is also a good time to remember that while your case is your life, for the lawyer it's his job.  No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.

If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case.  If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc.  Just use common sense, the lawyer will do the same, and you should probably be all right.  Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.

"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only.  You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete.  Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me.  Do I have any other options?"

Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order.  I lay out the procedures for pursuing a protective order in a post from April.  Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member."  The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning.  If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years.  During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.

The down side to this approach, however, is that you actually have to have some evidence that you are in danger.  Just an underlying fear or intuition isn't good enough.  A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order.  Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.

"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest.  What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"

It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them.  There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.

The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000.  So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage.  Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event.  Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.

To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills.  To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.

"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien).  Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago.  I didn't know at the time, and he didn't list my debt on his petition.  What is the status of my judgment?"

Well, the bankruptcy code puts a lot of burden on the creditor.  If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged.  If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed.  Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.

Conclusion

As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future.  As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post.  If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Classic Law is Your Friend: The Law of Living with your Parents, Boyfriend or Girlfriend in Virginia

Today's Classic Blog Posts discuss the legal rights and responsibilities of both "landlords" and "tenants" when someone lives in someone else's house by invitation (be it a grown child living with his parents, an unmarried couple living in a house in only one person's name, etc.).  It was originally posted on July 25, 2013 and titled "When Living With Your Parents Goes Bad - Tenancies at Will and the Law."

Where I felt it needed, I have added a few lines here and there.  Additions that were not in the original blog post will be in brackets ([]).

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

Introduction

Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents.  The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.

Once you turn 18, you no longer have an inherent "right" to live in your parents' house.  However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back.  This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."

Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies.  As I stated in that post, any tenancy has a lease, even if you don't know it.  In most cases, when living with your parents, the lease is neither oral nor written, but rather implied.  In other words - you get to live there as long as your parents don't decide otherwise.  It's important to note, however, that this situation does not just come up between parents and children.  If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.

What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities.  This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.

What Is a Tenancy at Will?

Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent."  So clearly Virginia law recognizes such a thing, and it is governed by the Common Law.  In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will."  Much like "employment at will," a tenancy at will is a tenancy which the landlord  may terminate at any time, for any reason.

So, if you live with your parents and don't pay rent, you are a tenant at will.  The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent.  The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore."  Once that happens, the "lease" is terminated and the tenant must move out.

Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right?  The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave?  Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help."  As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence.  This rule is just as applicable to a tenancy at will as it is to any other residential tenancy.  As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc.  The landlord must get a proper eviction.

How to Evict a Tenant at Will

The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated.  You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon.  Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint.  That would be a little extreme, but that's your right as a landlord in a tenancy at will.

From there, the case would proceed as any Unlawful Detainer would.  Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict.  Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on.  If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.  [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime.  For more on that process, you can read my post about protective orders.]

What If I Start Paying Rent?

Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent.  However, an offer to the "landlord" to pay rent is only that - an offer.  They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will.  If, however, they do accept that offer, then the change in your situation depends on the frequency of payments.  If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice).  However, you also now have the responsibilities of a paying renter.  If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.

Can I Do Chores Around the House and Call it Rent?

Now we get into a trickier area.  Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house.  However, this is very, very difficult to prove.  First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time.  Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might.  There is an exception, though, to the strict rules regarding "in kind" rent.  If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores.  However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.

Conclusion

Tenancies at will are a very common tenancy, especially today.  Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on.  These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many.  If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  The consultation is free for up to half an hour!

Virginia Divorce Law: How to Initiate a Separation

As always, before 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.

Introduction

In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no."  There's a flip side to that issue, however.  What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave?  What do you do then?

Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.

Agreements are Always Easiest

I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well.  You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now).  My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.

This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place.  The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence.  If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.

Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice.  You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper.  When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.

Pendente Lite Motion in Fault-Based Divorces

If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis.  This would include adultery, desertion, cruelty (physical abuse), and mental cruelty.  If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final).  Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.

Now, there are some major considerations to this approach.  First of all, filing for divorce on a fault ground is usually taken as a declaration of war.  Do not take this approach unless you are ready for a real fight.  Second, courts do not like to "create" separations.  While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together.  As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order.  This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.

Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful.  Nonetheless, it is still not a guarantee.

Separation Under the Same Roof

If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof.  My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof.  This approach allows you to be separated for the requisite time and then file.  Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree.  Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.

Moving Out

If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself.  We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse.  Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim.  Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation.  If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).

Conclusion

In some cases, actually initiating the separation period is the hardest part of a divorce.  It is not a simple process precisely because you cannot demand that your spouse leave.  If you are looking to get advice on beginning a separation, 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, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.

Virginia Protective Orders and Restraining Orders - A Brief Overview

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 here apply only to the Commonwealth of Virginia.

[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law.  For more information, click here.]

Introduction

Those of us who practice family law often find we have a lot to laugh about.  We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do.  Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.

In Virginia, the means for this protection is a "protective order."  A protective order is largely the same as what is commonly referred to in public usage as a "restraining order."  It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules.  In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.

When Can a Protective Order Be Sought?

So the first question to ask is under what circumstances can you actually get a protective order?  Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death.  So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify.  The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).

Where Do You Go To Get a Protective Order?

So, say you think you qualify for a protective order, where do you get one?  Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one.  If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order.  Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.

Now, how do you know what the "correct court" is?  Well, that depends on whether or not you are filing against a "family or household member."  If you are, then you go to the Juvenile & Domestic Relations District Court.  If you are not, then you go to the General District Court.  A "family or household member" is defined as one of the following:

• Your spouse
• Your ex-spouse
• Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
• Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
• The other parent of any of your children, whether or not you were ever married to that person
• Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you

It's interesting to note that, until 2011, you could only get protective orders against "family or household members," there was no General District Court option unless the person was actually charged with a  crime (which has a much higher standard of proof than a simple protective order), and even then only they were stalking you, had actually sexually assaulted you, or actually caused you serious bodily injury.  So, if you had an ex-boyfriend who never lived with you but was sending you threatening messages, you had no recourse.  Most of us within the profession think that the 2011 change was a good thing, even though it has caused the General District Courts to become somewhat overwhelmed.

What Happens After the Petition is Filed?

Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held.  The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing.  If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).

If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).

What Does a Protective Order Do?

So, what does a protective order actually do?  Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have.  The court has the power to do a large number of other things as well.  No matter what the court can also, if it so chooses:

• Define the only circumstances in which contact may be "necessary"
• Forbid the respondent from coming within a certain distance of the petitioner
• Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
• Make additional orders that the court thinks is necessary to protect the petitioner and his family members

Additionally, in the case of family abuse in the J&DR Court, the court can also, if it so chooses:

• Grant the petitioner exclusive use and possession of the joint residence
• Require the respondent to pay all utility bills for the joint residence
• Grant the petitioner exclusive use of a jointly owned vehicle
• Require the respondent to pay to house the petitioner in a new residence
• Award the petitioner temporary legal and/or physical custody of any children
• Award the petitioner temporary child support and/or spousal support

Please note that, effective July 1, 2014 due to passage of a new law, pets will be allowed to be included in the list of "members of the petitioner's household" from whom you can seek an order barring the respondent from contacting.  Note, however, that under the new law this will still only apply when you are getting a protective order yourself - you still will not be able to seek a protective order on behalf of a pet that is being abused if no people are being endangered as well.

Enforcement of Protective Order

So, after you have a protective order, the question becomes "so what?"  Specifically, what makes it more than just a piece of paper?  After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt.  So, what good does a Protective Order do?

Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings.  This is because violation of a protective order is, itself, a criminal act.  If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him.  No further threats or action by him is necessary.  That is the value of a protective order.

Even more importantly, protective orders are uploaded into a database and enforced nationwide.  Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.

Conclusion

The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse.  The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure.  If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!