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.

Short Topics - Virginia Law on Lease Non-Renewals, Terminating Child Support, and more

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

Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own.  It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post.  Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.

Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.

What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?

So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing.  Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy.  If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?

Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid.  However, you could take several approaches.  You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case.  Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed.  The first option is much less expensive for you, but also less likely to be accepted.  The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.

However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.

My husband left and I have no idea where he is - how do I get divorced?

Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers.  The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person.  However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").

In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties.  A court cannot impact a person directly without having in personam jurisdiction.  However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over.  Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).

This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage.  This is important because the rules for service of process for in rem jurisdiction are different.  In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper).  Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.

Now, to be clear, the court can only grant you a divorce.  It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).

My kid turned 18 and graduated high school - why am I still paying child support?

In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law.  A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed.  A non-self executing provision calls for changes after a certain event, but you must get a court order first.  The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties?  If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.

When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent.  In virtually all other situations, child support termination is not self-executing.  Let's break down the reason why.

Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0.  However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE.  Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise.  As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered.  You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.

The other changes from the above, simple scenario, are a bit more obvious.  If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious.  Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.

My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?

I get this inquiry a lot and unfortunately, the answer is usually "nothing."  The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.

Now, the two big defenses to a lease non-renewal are discrimination and retaliation.  Federal law bans housing discrimination on the basis of the "protected classes."  In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney.  You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.

Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited.  This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.

However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.

Conclusion

I do hope to do more of these "short topics" posts in the future.  Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs.  If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Our initial consults are free for up to half an hour!

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Legal FAQ Part V

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

Introduction

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

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

Why was it constitutional to jail Kim Davis?

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

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

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

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

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

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

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

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

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

How does Kim Davis differ from a conscientious objector?

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

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

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

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

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

Final Thought

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

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!

Legal FAQ Part V - Pop Law Edition

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

Introduction

Last week, my blog took a very serious turn, so this week, I've decided to do my fifth Legal FAQ (Part IV can be found here), and to lighten the mood a bit by tackling some "celebrity" issues, instead of ones you are more likely to face in your day to day life.

How can the NBA legally force Donald Sterling to sell his team?

I've gotten this one a lot - Donald Sterling is a private business owner, who legitimately owns his own business, specifically, the Los Angeles Clippers.  How can another group of people just force him to sell?  Well, the answer does not lie in any general legal principles, but rather one of contract law.  Before you can buy an NBA team, you must agree to sign on to a contract with the NBA itself setting various rules and regulations.  This is the case because the prior owner will have signed that same contract, and part of that contract requires someone selling a team to require the person buying the team to sign the contract.  At the very beginning, when a team is first formed, that team's owner must sign the contract in order for the team to be allowed to play in the NBA - and the owner will want to sign that contract, because otherwise he has a basketball team with no league to play in.

So, the whole thing relates to the contract Sterling signed with the NBA when he bought the Clippers.  It is what allows the NBA to, in some cases, force an owner to sell a team.  This is because owning an NBA team is a very unique situation in the United States, and as a result, it is one of the circumstances where a contract can be enforced with a specific performance order.

Now, you might be thinking, ok, then it seems open and shut that the NBA can force Sterling to sell, so why does he say he's going to fight?  What ground does he have to stand on?  Well, the contract is not "at will."  In other words, the NBA cannot force an owner to sell the team just because the NBA doesn't like the guy.  Rather the contract lays out in detail the situations in which an NBA owner can be forced to sell.  The fight is whether or not any of those sections apply to this situation.  Specifically, the contract allows the NBA to force a sale when the owner has done something that "damages the league."  Mr. Sterling argues, however, that comments made in private, not meant for public consumption, cannot qualify as such a violation.  In other words, Mr. Sterling is arguing that there is an intent component to the contract provision, while the NBA argues there is not.  I would suggest this case is not clear cut in any sense, but I give a slight edge to the NBA.

Didn't A&E violate Phil Robertson's Free Speech rights when it suspended his show for comments he made in another forum?

No.  Let me just get that out of the way first.  This is a question I get far outside of just Phil Robertson, however.  It can be applied just as much to Don Imus, Paula Deen, Martin Bashir and Bill Maher, all of whom have been fired over some stupid thing they've said or another.  The question usually goes "we're supposed to have freedom of speech in this country, yet this happened" and then turns into a rant about "political correctness" run amok.

Let me be clear - you have absolutely every right to say whatever you want (obviously with some exceptions when it comes to threats of violence, for example) and not be punished for it in any way by the government.  The First Amendment does not however, prevent you from suffering the consequences of your poor choice of words from the general public or your private employer.  If your boss thinks your comments have harmed the company, you can be fired, period.  The Bill of Rights protects you from the government, not private entities.  In fact, the only part of the entire Constitution that, on its own, protects people from other people is the Thirteenth Amendment, which bans all slavery in the country.  That's it.  Every other right the Constitution gives you is a protection from the government, not from other people.

Isn't it terrible that the hoax lawsuit against Johnny Manziel actually got into court?

In case you haven't heard, a lawsuit was filed against Johnny Manziel in Florida accusing him of sexual harassment.  A quick read of the lawsuit made quite clear, however, that the lawsuit was most likely a complete hoax - something that appears to have later been confirmed.  The reaction, however, was frustrating to me as an attorney.  People were outraged that the court had accepted the lawsuit, that it had been "dignified" by a case number and a date stamp.  This outrage is misplaced.

Clerks of court are not lawyers, they are not learned in the law, they are not legally allowed to make legal determinations.  As a result, clerks do not have a right to turn away lawsuits unless they don't meet specific filing requirements - for example, the filing fee is not paid.  A clerk absolutely cannot analyze the lawsuit itself to see if it is valid.  Only a judge can dismiss a lawsuit.

I would suggest changing this practice would be very dangerous.  Our country has a long, unpleasant history of depriving certain people of access to our courts.  It would be far too easy for a renegade clerk's office to go down that path if given the power to decline lawsuits.  I already see too many cases where a clerk, not quite understanding a pro se party, has turned away a case that should not have been turned away.  Giving clerks the power to do this on the merits would be far too dangerous.  If our Fourteenth Amendment right to Due Process is to mean anything, it should at least mean that anyone can get in front of a judge.  If they really are wasting the court's time, we have ways to make them pay for it.

Isn't it terrible that Vincent Sheheen (candidate for South Carolina Governor) helped get murderers and child rapists off the hook by being their defense lawyer?

In case you haven't heard, the Republican Governor's Association has run a series of ads in South Carolina attacking Democratic Gubernatorial candidate Vincent Sheheen for work he did as a defense attorney.  Regardless of your political affiliation, this should scare you.  The Sixth Amendment right to counsel is a core component of our rights.  It is what stands between an unsophisticated accused and an all-powerful state.  It is, in some cases, the only protection that a falsely accused person has against their charges.  Attacking a defense lawyer for doing his job is about as low as you can sink.

Unfortunately, this kind of attack is not new, and I have seen it carried out by members of both parties.  I would like to ask the people who actually vote on this logic what their preference would be - that defendants have no lawyer at all?  Would they really want a world where all attorneys decide not to defend people accused of bad things, so that if they, themselves, were accused, they would have nowhere to turn?

Our legal system relies on attorneys being willing to represent even the worst of the worst.  That is the only way we can make sure that the truly innocent are protected too.  This is a core, fundamental belief of our nation - whether it comes from the image of Atticus Finch defending an accused rapist in To Kill a Mockingbird, or the decision of John Adams, one of our founding fathers, to represent the British soldiers accused of perpetrating the Boston Massacre.

I would note that Nikki Haley, the Republican candidate for Governor in South Carolina, has not run such ads herself, but she has not condemned them either.  I would hope that she does.  In the meantime, I would hope everyone is wary of such attacks and really thinks about what the implications of such attacks truly are.

Conclusion

And that concludes today's FAQ.  I hope you have found it at least somewhat entertaining.  As always, if you have questions you would like me to address on the blog, feel free to ask the lawyer.

Legal FAQ Part IV

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

Introduction

Well, it's Thursday and I haven't had time to put together a post yet this week.  Now that I sit down to do so, I'm realizing my time is short, and I am again having a little bit of writer's block.  Now that I realize I haven't done a "Legal FAQ" since October, I figure I'm due for one.  As with my previous ones, today I will answer a few questions that I am frequently asked by friends, family members and clients about the legal system, but which, in my opinion, don't warrant a full blog post on their own at this time.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III

Will Amanda Knox get extradited to Italy?

I've been getting this question a lot recently from friends who follow the very controversial, very public Amanda Knox case.  Now that she's been convicted again, presumably our extradition treaty with Italy would kick in.  In my opinion, however (and in the opinion of most legal experts I've seen interviewed), Amanda Knox is in no danger of being extradited to Italy - at least not from the United States.

While we do have an extradition treaty with Italy that would seem to require us send her to Italy, to some extent treaties are similar to any other law - they must be constitutional.  Further, there are two ways to challenge the constitutionality of a law - facial challenges, and "as applied" challenges.  An "as applied" challenge says "this law is constitutional on its face, so the law can survive, but as applied in this particular case, the application of this law is unconstitutional."  I believe Amanda Knox has, essentially, a bullet-proof "as applied" challenge to the extradition treaty.

Essentially, while the treaty itself is constitutional, using it in her case would not be.  This is because sending her to Italy would subject her to a violation of her rights under the U.S. Constitution.  Specifically, the 5th Amendment bars someone who has been acquitted of a crime from being re-tried for that same crime (known popularly as "double jeopardy").  While double jeopardy is actually a very complicated area of constitutional law, it's applicability here is pretty clear.  Knox was tried and acquitted by a jury, then re-tried and convicted.  That is a violation of double jeopardy, and as such, Knox could make a strong challenge to any extradition effort.  So strong, in fact, that I believe the State Department will not even try to extradite her.

Now, I would note that Knox is protected from extradition from the U.S.  If she travels to another country that has an extradition treaty with Italy (for example, almost any E.U. country), and that country does not have the same protections, she could be extradited from there.  As a result, unless her conviction is overturned, Knox will have to spend the rest of her life being very careful about where she travels if she ever leaves the country.

Why doesn't Congress ask the Courts if a law is constitutional before it's passed?

Over the years, I've gotten a few questions about this one - and it makes some sense.  Why do we have Congress pass laws, put them into force, and possibly actually affect people before there can be a constitutional challenge?  If a law's constitutionality is in question, why not just ask the courts to rule on it first?

Well, the answer to that lies in the Constitution itself.  Article III, Section 2 of the Constitution gives our courts the authority to decide various forms of "cases" and "controversies."  This is, fittingly enough, known as the "cases and controversies" doctrine.  In other words, for our federal courts to take action, they are constitutionally required to have before them an actual "case" or "controversy," meaning a live dispute between two or more parties.  This has long been held to mean that the federal courts cannot issue "advisory opinions," which is what answering a question about a hypothetical law would be.

Interestingly, many other doctrines you may have heard about also arise from the "cases and controversies" doctrine.  These include "standing" (the requirement that the party bringing an action actually suffers harm from the alleged breach of law), "mootness" (the requirement that the issue must be ongoing), and "ripeness" (the requirement that the issue must have already started to cause problems).  These doctrines also come from the perspective that if standing or ripeness is lacking, or an issue is moot, then the court is really just issuing an advisory opinion.

Finally, I would note that this only applies to federal courts.  Different states have different rules, and there are several states that do allow advisory opinions - and in those states the state legislatures frequently apply to the state supreme court for advisory opinions on hypothetical laws.  Virginia is not one of those states, however - Virginia also has a state constitutional "cases and controversies" requirement.

As a tenant, how much money will I owe if I just break my lease early?

This is another question I hear often from tenants who don't have a problem with their landlord, but have a situation that has caused them to wish to move before their lease has ended.  The answer to this question is one that depends almost entirely on which law applies to your lease.

As an initial point, most contract law includes a doctrine known as "mitigation of damages."  This requires that when one party to a contract becomes aware that the other party intends to breach the contract, or has breached the contract, the aggrieved party must take all reasonable action to reduce the damage that party suffers from the breach.  Then, whether the aggrieved party has met his obligation or not, the breaching party is only liable for the damage the aggrieved party would have suffered if he mitigated his damages properly.  As a quick and dirty example, contractor agrees to build a home, with payment of 1/3 before work begins, 1/3 when work is halfway done, and 1/3 when work is finished.  The first 1/3 is paid, but when work is halfway done, the buyer refuses to pay the second 1/3.  The contractor cannot then finish the home and sue for the full 2/3 remaining.  Instead the contractor must stop work, and make a reasonable effort to find new work to make up the anticipated money he'd have earned to finish the house.  As a result, the contractor can only sue for the 1/3 he was owed at the halfway mark, plus any difference between what he would have earned for the final third and what he actually earned with his replacement work.

So, it would seem this should apply to leases as well.  After all, rentals are contracts, and so a landlord would seem to be required to find a new tenant and you should only be responsible for rent between when you leave and when a new tenant is found.  It's not that easy, however.  For more than a century, the common law in Virginia (as it had been in most states) held that because a lease involved the conveyance of land, even on a temporary basis, the full contract had to be honored.  As a result, a landlord had no obligation at all to mitigate damages, and as such, a tenant would be responsible for the full amount of rent owed to the end of the lease.  The only exception would be if the landlord on his own mitigated damages and got a new tenant, then the old tenant's obligation ended there.

Well, if you're a regular reader of this blog, you probably know where I'm going with this.  If you want to know the current rule, you need to know whether or not the Virginia Residential Landlord and Tenant Act applies to your lease.  My post breaking down figuring that out can be found here.  If the VRLTA does not apply to your lease, then the old rule is in force, as nothing in Virginia Code Title 55 Chapter 13 changes the common law rule.  If the VRLTA does apply, however, then Virginia Code Sections 55-248.33 and 55-248.35 apply.  These two code sections provide that a landlord is required to mitigate damages after a lease is breached.  In these situations, you can expect to pay rent for the amount of time it would take for a reasonable effort to find a new tenant (probably 1-2 months), plus the costs of re-renting (advertising, cleaning up, showing, etc.).

Conclusion

While I realize I've handled fewer questions than my previous FAQ's, my answers seem to be longer than usual.  As a result, I'm going to wrap it up here.  As usual, if you have a legal issue you think I can help you with, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Legal FAQ Part III

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 in this post apply only to the Commonwealth of Virginia.

Introduction

In the past, I've done FAQ's when I've had writer's block or when I wanted to introduce a new concept to the blog.  Today, I'm doing it because I have had several ideas for posts to put together, and realized that all of them are too short to really warrant their own full blog post - so they worked better as FAQ's.  As always, the format will be simple - I'll pose a question in bold, usually one I am asked a lot, and then I will attempt to answer it in the paragraph that follows.  At the end, I'll ask you to submit any questions you may have for future FAQ's.

If I'm involved in a lawsuit but have a lawyer, when do I actually need to take off work and come to court?

Note:  This question was sent to me by a reader in response to my ask the lawyer blog post.

This is actually a very common question I get asked when representing clients.  The answer is two-fold.  First and foremost, you need to be in court any time there's a hearing in which your testimony will be needed.  This means if the hearing is about a factual issue (as opposed to the facts not being in dispute, but there being a legal issue) there's a good chance you need to be there.  Second, if there's a hearing where you not being there might look to the judge like you don't care about the case, you should be there.  For both of these reasons, however, your lawyer is likely to know what's needed and should be able to advise you.  In my experience, hearings other than the trial in which testimony is taken are rare.  Pendente Lite hearings in family law cases, hearings on a Plea in Bar, and hearings on matters that will take more than 30 minutes to be heard tend to be the only ones I can think of - but again, for your case, your lawyer will know.  For the second, this is pretty much only at trial.  In a civil lawsuit, if you have a lawyer, there is no requirement that you actually attend your trial (unless you have been served with a subpoena).  Nonetheless, even if you don't plan to testify, failure to be there will usually look bad to a judge unless you have a good reason.

While every case is different so I cannot speak to the facts of your particular case, in most non-family law cases I have handled, I've needed my client to come to court exactly once (the date of trial).  Even in family law cases, it's typically been only twice (trial and a Pendente Lite hearing).

My tenant has stopped paying rent and skipped town - how long will it take before I get my property back to re-let?

So, again, every case is different, and even worse - the answer is probably different from county to county, so I'm mostly speaking from experience in Fairfax County here.  Even though your tenant has disappeared, you still need to serve them with a 5 day pay or quit notice.  The sheriff or a private process server will need to post it on the front door of the residence.  You must wait 5 days from that point before you can file your Unlawful Detainer (assuming no payment is made).  If after five days you file an unlawful detainer, the return date will usually be set 16-21 days from then.  If, at the return day, nobody shows up for the other side, you can ask for a default judgment, and, unlike many other situations where there is a 10 day waiting period, you can ask that a "writ of possession" be immediately issued.  Upon the issuance of a writ of possession, the sheriff's office will receive documents needed to execute the writ.  After usually about two weeks, you will get a call from the sheriff's office to find out your availability to be at the property.  Once you agree on a date, which must be at least four days in the future, you and a sheriff's deputy will go to the property and you will be restored to possession of it.  In short, if there is no opposition from the tenant at all, you can reasonably expect to have possession back somewhere between 40-45 days after the process begins - but it's certainly not a guarantee.

As of December 31st, my wife and I were separated.  I really don't want to have to work with her to file a joint tax return.  Can I file separately without taking the tax penalty for doing so?

Note: This question was sent to me by a reader in response to my ask the lawyer blog post.

I am not a tax attorney, but this is an issue we have to address regularly nonetheless.  My first comment would be to suggest that you try to work through your issues and file a joint return.  You are likely to each pay less tax if you do this.  If you absolutely cannot stand it, however, my understanding of the tax code is that you can file as a single taxpayer if you are legally separated.  This would avoid the penalties associated with filing in a "married, filing separately" return.  In Virginia, however, we don't have a "legal separation" concept.  Your separation becomes "legal" as soon as one person leaves and one of you decides that the separation should be permanent.  Tax law, as a surprisingly large number of federal laws do, defers to state law when determining if you are legally separated.  Since, as discussed above, Virginia considers you separated the moment one of you leaves and one of you decides that the separation should be permanent, that's been generally accepted to be all you need in Virginia to allow you to file a "single" federal tax return.

While my divorce case was pending, I lost my job and can no longer afford the mortgage on the marital residence.  I found a buyer willing to pay a good price and give us a decent bit of equity, but my husband won't sign the sales papers and wants to wait to hear how the court will divide the house at trial.  The house will be foreclosed on before trial, though, since we can't afford the mortgage!  What can I do?

This is a bit of a sticky issue.  Your husband may be right that it's a good idea to get the court's decision on how to divide the house before selling, but sometimes the reality on the ground just doesn't allow for that.  He's either being unreasonable, or it's always possible that in anger he's sabotaging your assets.  He may very well have decided that he's willing to give up his share of the house just to watch you not get yours.

Fortunately, there is a solution.  Virginia Code Section 20-103, the section that allows you to file for pendente lite relief, allows a court to make a pendente lite order "to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit."  There is no restriction given on what courts can do to preserve the estate of either spouse, either.  So, if you can convince a court that there will be a substantial loss to both of your estates if the home goes into foreclosure, the court may well order your husband to sign off on the sale.  If he still refuses, the court can appoint a "commissioner" to sign on your husband's behalf, and by law the signature is just as valid as if your husband had signed himself.

Conclusion

And that's it for today's FAQ's.  As always, feel free to e-mail me at sleven@thebaldwinlawfirm.com if you have questions you'd like answered on a future blog post or FAQ.  In addition to eventually posting the question and answer if I think it's a good one, I'll usually also immediately respond to your e-mail with a short answer.

Ask the Lawyer and FAQ's About the Legal System Part II

As always, please read my disclaimer before reading this post by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.  Finally, please note that at the end of this post, there will be a call for readers to contact me with questions - please feel free to do so.

Introduction

Two weeks ago, I got hit with a nasty case of writer's block, and used that opportunity to do a brief FAQ on this blog.  That post turned out to be substantially more popular than I expected it to, and now that this blog is getting something of a readership I would like to actually spend some time providing content that you, the readers, want to see, instead of just whatever I happen to feel like musing about (although there will certainly still be plenty of that).

As a result, this week I'm going to introduce "ask the lawyer."  It will be my call for you, my readers, to submit questions to me that you would like me to cover in my blog - either via an FAQ post, or a full post.  However, since just that call for action can hardly constitute a whole post, I will also use this opportunity to do Part II of my FAQ.  As a result, below are some more of the questions I am frequently asked, and then an explanation of how "ask the lawyer" will work.

Why should my Complaint for Divorce ask for custody when I only want visitation?

A contested divorce case takes a long time to work its way through the court - sometimes up to a year, sometimes even longer.  A lot can happen during that time.  If you don't ask for custody in your Complaint, and then something comes up where suddenly you need custody, the process of getting it is more complicated.  Moreover, asking for custody in your Complaint can provide a bargaining tool when you are attempting to negotiate other matters.  It is better if your Complaint seeks too much than if it seeks too little - and this is true for more than just divorces.

Why do you no longer handle custody/visitation cases?

I get asked this a lot.  As the "no longer" implies, I did used to handle such cases.  In fact, I do still handle some, since I grandfathered in my previous custody/visitation clients when I stopped taking those cases.  The brief answer is that when I handled these cases (custody especially), I would spend the two or three weeks leading up to the trial as a complete wreck - emotionally and physically.  It affected my home life, and the quality of my work on other cases.  After one particularly brutal case, I came away with a complete victory for my client - everything we asked for, and then some.  Yet, I felt absolutely no satisfaction.  If I was going to put myself through weeks of hell only to get nothing out of even a total victory, I asked myself "what am I really doing?"  It was a bit of a personal crisis, but luckily I have an extremely understanding boss whose exact statement to me was "life is too short to do work you don't find professionally satisfying."  So, we struck a deal that I could stop taking custody/visitation cases if I expanded my practice areas into other fields that our firm at the time did not have anyone working in.  This is why there are things that my firm does which I don't (mainly custody/visitation), and why there are things that I do which the rest of my firm doesn't (mainly landlord/tenant, contract, debt collection and appellate work).

What happens if I don't file an Answer to a Complaint for Divorce within 21 days of being served?

Back in July, I did a post about what happens when you are sued.  Since all divorces are conducted in the Circuit Court, the Circuit Court timeline is applicable.  But the question becomes, what does being "in default" in a divorce case, where there is not a money judgment being sought in the traditional sense, really mean?  Well, the answer actually is, generally, very little.

You cannot obtain a divorce by default.  So, if you file a Complaint and get no Answer, you still have go through the process of proving to the court that you have been separated long enough, etc.  If you are seeking support, you will still need to establish that you should get support and how much support you should get.  It is just easier if you are unopposed.  Now, if you are on the other end and you want to prevent that from happening, but you were late, you still have some options.  Again, you are never "in default" in a divorce case - however the case can proceed without further notice to you, per a law passed last year.  Further, all allegations in the Complaint can be taken as true without you having a right to rebut them, although courts practically never do that.

As long as the divorce has not already been taken all the way to its end and a Final Decree been entered, you or your attorney can file a "Motion for Leave to File Responsive Pleadings Out of Time."  This will almost always be granted - allowing you to file an Answer and participate in the case.  Be aware, however, that if the case has been pending for a while, you likely will not get a continuance on a final hearing date, and you may have missed your chance to send discovery requests to the other side.

What is "Discovery" anyways?

Discovery is the process by which each side in a civil case gets to make the other side give them information they need in order to prepare their case.  Discovery comes primarily in four forms - Interrogatories, Requests for Production, Requests for Admission and Depositions.

Interrogatories are a list of questions that the other side must answer in writing and under oath.  Requests for Production require the other side to turn over documents and other things to you that may be relevant to the case.  Requests for Admission require the other side to admit that certain statements or true, or deny that they are true.  Depositions force the other side to come into your attorney's office (or some other agreed place) and go under oath and answer questions in front of a court reporter.

Interrogatories, Requests for Production and Requests for Admission generally need to be responded to within 21 days of being received.  The penalty for being a little late, however, is usually minimal.  With Requests for Admission, however, that is playing with fire, since technically even being a day late on those can cause a court to deem all of the statements as "admitted."  Further, if you deny a statement in the Requests for Admission, but the statement is later proven to be true, you can be forced to pay the attorneys' fees the other party accrued proving that statement to be true.

Most civil litigation attorneys will tell you that cases are usually won or lost in discovery.  Making sure you ask the right questions and answer questions the right way can be key to your entire case.

I've been sued in General District Court and have demanded discovery, but the other side is refusing to cooperate.  What can I do?

Nothing, I'm afraid.  Virginia law has the notion that courts below the Circuit Court should proceed quickly and smoothly, and that the cases they include do not warrant discovery.  Whether this is accurate or not, it is the law we have.  So, discovery is only available as a right in the Circuit Court (this includes, by the way, appeals to the Circuit Court from a lower court).  In the General District Court, you're stuck with the Summons, anything attached to it, and a Bill of Particulars (or Answer and Grounds of Defense) if pleadings were requested at the return day.  In the Juvenile and Domestic Relations District Court you can request the right to conduct discovery (which is almost always granted), but even then you are not permitted to do depositions.  So, if you've been sued in the General District Court and want discovery, the best hope you have is to convince the other side that if they send you these things, you might be inclined to settle - then they might do it voluntarily.  You cannot, however, force the other side to send you anything.

Ask the Lawyer

So, I think that's a good number of questions to cover today.  Now comes what I discussed earlier - ask the lawyer.  The way this works is that you send me any question you have that you think I might know the answer to about the legal system or various areas of law.  You can do this by sending your questions to me at my e-mail address - sleven@thebaldwinlawfirm.com - or by leaving a comment on this blog post (I may not approve the comment to be visible, but I will still receive it).  Then, I will either respond by telling you it is something that I do not know the answer to and an explanation of why, along with, hopefully, some advice on where to go to get an answer, or I will save your question and answer it either with a full blog post or with an FAQ.  If I write a post or FAQ in response to an ask the lawyer question, I will indicate I am doing so, and I can give you personal credit if you wish (you need to let me know when you ask the question, along with how detailed you would want the credit to be in terms of your name), and I will try to e-mail you to let you know I have done so (although I cannot promise that I will remember to do this).

This will not be the last time that I do an "ask your lawyer" specific call, although you should consider me open to receiving "ask the lawyer" questions at any time, whether I've called for it in my last blog post or not.

This is not, however, a call for you to ask me about your specific legal case.  The statements I give on this blog, as explained in my disclaimer, are not legal advice, and cannot be specific to your case.  If you have a question about your specific case, you'll need to set up an initial consultation, which you can do by calling (703)281-0134, or by e-mailing me at sleven@thebaldwinlawfirm.com.  Our initial consultations are free for up to half an hour.

I look forward to receiving your questions!

FAQ's About the Legal System - Part I

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

Introduction

Well, it's Thursday, and I haven't done a blog post yet this week, so my calendar tells me I'm due for one.  Nonetheless, after spending most of the day yesterday in court, and then running around the county on various errands, I find myself this morning with a terrible case of writer's block.  Fortunately, I had planned for such a possibility.

Over the course of my legal career, there are numerous questions that I get asked repeatedly.  In terms of this blog, the answers to these questions are frequently too short to warrant blog posts on their own, so I've had an "FAQ" post on the back-burner for a while.  So, what follows are some of the questions I am frequently asked as an attorney, and my quick answers thereto.  I doubt this will be my last FAQ, however, as I have quite a few to go through.  Moreover, if there's an answer you want more information about, you can certainly leave a comment.  Heck, you may inspire me to extrapolate an entire post about that topic and help break my writer's block!

Anyways, here we go...

Why do lawyers charge so much money?

The complete answer to this question is a fairly complex economics explanation - we charge what "the market" allows us to charge because clients come into an attorney-client relationship expecting to pay that much.  The simpler answer, however, is that like any business, attorneys charge at rates they need to in order to sustain their business.  Attorneys have very high rates of non-payment from clients for a variety of reasons (sometimes even the best attorneys lose, and clients seem to think they don't need to pay when that happens), and a large percentage of our workday is non-billable time.  As a result, we need to charge enough to keep the business going (pay rent, computer fees, employee salaries, etc.), and also to feed our families.  You see, there's this misperception that lawyers are all wealthy aristocrats which is largely false.  There's a small percentage of attorneys that make millions a year, but most make middle class salaries at best.

Why is the legal system biased in favor of people with lawyers?

This is a question I get a lot and most people are quite skeptical when I say the legal system is not biased.  In fact, I see judges often go out of their way to make sure pro se (unrepresented) persons get heard.  The problem is, we have a complicated legal system, filled with rules that are, in theory, designed to promote the efficient running of justice, and attorneys are forced early on to learn those rules, whereas an unrepresented individual who has never dealt with the court before hasn't, and can fall into those traps much more easily.  Moreover, attorneys know the law better because knowing the law is our job - we have studied the law much longer than most any pro se person will have.  This question is almost like asking "why are illnesses biased in favor of being treated by doctors."  Sure, anyone can treat an illness (and for some small illnesses, most of us do treat them ourselves), but doctors have spent years studying these things that we just can't, and so they know how to treat it better.  With lawyers and the legal system, it's largely the same.

What does "jurisdiction" mean?

The dictionary definition of jurisdiction is "the official power to make legal decisions and judgments," and that describes it pretty well.  Jurisdiction determines when a court can make a ruling, and when it cannot.  For most intents and purposes, there are two kinds of jurisdiction - "subject-matter" jurisdiction and "personal" jurisdiction, and in order for a court to be allowed to even consider a case to begin with, it must have both.

Subject matter jurisdiction is the law determining whether or not the court is allowed to hear cases of a certain type.  If a court does not have subject matter jurisdiction, it does not have the power to hear a case, even if all parties want the court to hear it, and any ruling issued by a court without subject matter jurisdiction is immediately void.  Subject matter jurisdiction is usually determined by the legislature that controls the court (so, state legislatures for state courts and Congress for federal courts), but there are some constitutional limits as well (the case you all learned in school - Marbury v. Madison, which established judicial review, did so by saying it was unconstitutional for the Congress to give the Supreme Court subject matter jurisdiction over the original filing of a writ of mandamus).

Personal jurisdiction is, as the name suggests, "jurisdiction over the person."  In other words, if the court does not have jurisdiction over the person, it cannot very well compel that person to do anything.  Personal jurisdiction is a much more complicated subject than subject matter jurisdiction, and it may very well warrant a short blog post someday, but the short (and admittedly imperfect) description is, a court has personal jurisdiction over you if a) you were served with process personally in the state where the court sits, b) you are being sued for an action that had some effect in the state where the court sits, c) you are a resident of the state where the court sits, or d) you willingly consent to the court having personal jurisdiction over you.  So, as you can see from d), unlike subject matter jurisdiction, personal jurisdiction can be overcome if the parties want it to be (and there are reasons why someone might consent to personal jurisdiction).

Who picks the judges in Virginia?

So, most of you are probably aware that in the federal system, the president nominates judges for confirmation by the Senate.  You may also be aware that in many states, the state judges are either similarly picked (Governor nominates, legislature confirms), or are elected.  Virginia, however, has a fairly unusual system - our legislature unilaterally (without any legal say from the Governor, though he may have a practical say) picks our judges.  The way this practically works is that when there is an opening, the local Bar Association interviews candidates and recommends several to the local legislature delegation, and the local legislature delegation then decides who to recommend to the full legislature.  It is unusual for the full legislature to go a different route than the local legislature delegation, though it does happen on occasion.  Our judges serve 8 year terms, except for the Supreme Court justices who serve 12 year terms, and must be re-appointed if they wish to stay on the bench at the end of their terms (most judges are re-appointed without difficulty, but every now and then one will get voted off).  Further, our judges have a mandatory retirement at age 70, although they can continue to serve as "senior" judges and justices after that, in which case they can sit on cases where other judges are not available.

What is a "Demurrer"?

As my boss likes to say, they don't call us the "Old Dominion" for nothing.  Virginia courts have a particular love for Latin terms that have long since been abandoned by most other states.  While most states have a "Motion to Dismiss" on the basis of "failure to state a claim" (this is Rule 12(b)(6) in federal court, for example), Virginia calls that a Demurrer.  Basically that just means you are saying that even if every allegation in the Complaint initiating the lawsuit were true, the plaintiff would not be entitled to the relief the plaintiff seeks.  Also, Virginia also still uses the term "subpoena duces tecum" which is the same thing as what other states call a "subpoena for documents."

I'm about to go skydiving, is my liability waiver valid?

So, liability waivers are another thing that might warrant a full blog post some day.  Virginia's rule generally, although there are some exceptions, is that you can waive liability in advance for property damage, but not for personal injuries.  So, a waiver that says "I will not hold x liable for damage that may occur to my property" is valid and enforceable, but a waiver that says "I will not hold x liable for any injury or death I may suffer" is invalid.  Again, there are exceptions, but that's the general rule in Virginia.

Conclusion

Well, I think that about covers it for today.  Thanks for bearing with me as I battle the dreaded writer's block!