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.

Relevant Changes in Virginia Law - 2019 Edition

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 I have done every Spring since I began this blog, today I will be giving a summary of new laws
that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here.

All laws listed here are effective as of July 1, 2019.

Single Filing Uncontested Divorces

Uncontested divorces in Virginia are frequently legally simple, but procedurally complex.  By this I mean the actual law regarding handling of these divorces is simple, but the actual process of getting them done is complex, and frequently requires lawyers to be involved in even the simplest uncontested divorces.  One of the annoyances of handling uncontested divorces is that they require a minimum of two trips to the courthouse.  First, you have to go to file your Complaint for Divorce to open the uncontested divorce.  Then, you can proceed with all your remaining paperwork - a waiver of service of process, affidavits, and the Final Decree itself.  This is all because, as a general rule, someone cannot waive service of process or complete an affidavit in a court case that does not yet exist.  However, HB 1945 has now changed this by adding an exception to this general rule, allowing uncontested divorces to proceed where a waiver of service and affidavits were signed a "reasonable amount of time" prior to the case being opened.  The practical impact of this is that an uncontested divorce will now be able to be completed with a single trip to the courthouse - all paperwork can be prepared in advance and filed at the same time.  This will make uncontested divorces a little less complicated, a little less time consuming, and, hopefully, a little less expensive.

Tenant's Redemption Right Dramatically Expanded

In October of 2014, I wrote a post about a special provision in the law for tenants called a "redemption."  A redemption is almost like a get out of jail free card for a tenant - it allows a tenant, once every twelve months, to avoid being evicted by paying all rent due, late fees, court costs, and attorneys' fees after a five day pay or quit has been served and eviction proceedings have begun.  Pay the right amount on time, and the eviction process is terminated.

Well, as I noted at the time, there's a big catch.  You cannot dispute the amount owed, and you have to pay the redemption at or prior to the first court date (the first return).  HB 1898, however, has changed this.  Now, under the new law, a redemption can be paid up until two days before the eviction itself is carried out (so, after the first return, after the trial, and after the writ of possession has been issued).  This means a tenant can now have his day in court to challenge the amount he or she supposedly owes without losing their right to redeem.  Now, there's another catch.  HB 1898 only applied to Virginia Residential Landlord and Tenant Act (VRLTA) leases.  You may recall from my changes in the law blog post last year, that all differences in the law between the VRLTA and common law/chapter 13 residential leases had been abolished.  Well, HB 1898 (along with one or two more minor law changes) this year applied only to VRLTA leases, and as a result have again created differences between the two.  I honestly believe this was an unintentional oversight by the General Assembly, and will be fixed, but it does emphasize the point that if we really want all residential leases to be treated the same, it's time to just make the VRLTA applicable to all residential leases (or, alternatively, repeal the VRLTA and make chapter 13 applicable to all residential leases).  So, changes along those lines may be coming - stay tuned.

Writ of Eviction Established

Speaking of writs of possession, however, they will actually no longer exist as of July 1st.  SB 1448 changes the name "writ of possession" to "writ of eviction," and provides that such writs must be issued within 180 days of the court order granting possession, and must be executed within 30 days of being issued.

Contract Statute of Limitations Loophole Closed

You may recall from my blog post on statutes of limitations that the statute of limitations in Virginia for a written contract is 5 years, but for an unwritten contract is 3 years.  Not mentioned in that post, but also important to note, is that Virginia law has a catch-all, which says the statute of limitations for any common law lawsuit for which a specific statute of limitations is not set out in the Code is 2 years.  In recent years, defendants discovered a rather devious loophole that a number of courts upheld - namely a contract that was written, but not actually signed.  The fact that the contract was written meant that it could not be an unwritten contract, as specified in statute for the 3 year statute of limitations, but the fact that it was not signed meant it could not qualify for the 5 year statute of limitations for a written contract (as the Code specifically required the writing to be signed by the party being sued for the 5 year statute to apply).  As a result, several defendants sued after two years but before three years, successfully convinced courts that the catch-all 2 year statute of limitations applied, and got their cases dismissed.  HB 2242 now closes this loophole by making written but unsigned contracts specifically subject to the 3 year statute of limitations.

Conclusion

This year's General Assembly session did not produce as many game changers as last year's, but nonetheless provided some very exciting modifications.  I am particularly looking forward to integrating single filing uncontested divorces into my practice.

Classic Classic Law is Your Friend: Support Payments During a Government Shutdown

In light of current events, I thought it would be a good time for me to whip out this oldie but goodie I published during the government shutdown in 2013, and republished during the short government shutdown earlier this year. Yes, it is kind of sad how many times I've had to use this same post... It is targeted towards my readers who are federal employees or contractors who will not get paid during a shut down, or who are involved in a family law case with such a person. This post addresses what will happen to your spousal or child support payments (be it as an obligor or obligee) and some options to alleviate the pain from support if you are a support payor who suddenly does not know when your next paycheck will be coming.

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

Introduction

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees.  Federal employees face an unusual array of challenges when it comes to family law to begin with.  Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs.  Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay.  There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party.  If you are on good terms with your ex, this may be a viable option.  You should contact your ex immediately to discuss the issue.  A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation.  If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly.  Unfortunately, that's where the simplicity of this solution ends.  Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard.  An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing).  Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high.  If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee).  There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option.  If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay.  Maybe DCSE and/or your ex won't take any action, but there is a chance they will.  If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest), and there's a good chance you'll also be ordered to pay attorneys' fees.  You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own.  There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support.  The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it.  Nonetheless, there are options, and you should know them before you take action.  If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Your initial consultation is free for up to half an hour!"

Why the New Tax Law Makes 2018 the Year to Get Divorced!

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

UPDATE (4/27/18):  The proposed law in the General Assembly mentioned below did not pass in 2018.  As a result, as far as I know, there is currently no plan to review or revise the child support guidelines in Virginia as a result of the potential impact of the tax law on spousal support.  The General Assembly will likely consider this again in 2019.

Introduction

"In this world nothing can be said to be certain, except death and taxes."  Benjamin Franklin's wise words, written many years ago, seem to resonate even stronger these days.  Taxes impact a shockingly large percentage of what we do in life - everything from our charitable donations to housing decisions to career and business choices.  It should be no surprise, then, that taxes play an outsized role in divorce cases as well.  It also should not be too surprising that when the Republican tax bill was passed into law late last year, the far-reaching bill included provisions ready to wreak havoc on divorce law.

The most obvious way that the tax law impacts divorce is in the field of spousal support (alimony).  Prior to the new tax law, spousal support was considered taxable income to the payee and tax deductible to the payor, unless the parties agreed otherwise.  The new tax law changes this - spousal support will now become like child support, neither taxable to the payee nor deductible to the payor.  This change, however, is not as simple as it seems.  It will make divorce cases harder to settle, child support and property decisions more complicated, and will squeeze the financial resources of already resource-squeezed divorcing families.

However, there are two twists.  While most of the tax law went into effect beginning January 1, 2018, the change to spousal support does not go into effect until January 1, 2019.  This means we know this change is coming in advance.  The second, even more important twist, is that pre-determined spousal support is grandfathered.  This means all spousal support paid as a result of an order entered prior to January 1, 2019 will still be deductible to the payor and taxable to the payee after January 1, 2019.

In family law, we routinely try to discourage couples from moving too fast.  Divorce is a major life decision, and not one to be taken lightly.  But, we family lawyers would be doing a disservice to our potential clients if we did not make this abundantly clear - if you are contemplating a divorce, 2018 is the year in which to do it.  Beginning in 2019, divorces will be harder, more confusing, more financially draining, and less likely to settle.  If you're thinking of getting divorced - the time has probably come to make a decision.

"Grandfather" Clause

Rules and regulations about the new tax law are still being written, so read this with the caveat and understanding that some of this is still subject to change, but here's the basics.  All spousal support orders entered on or after January 1, 2019 (with the exception of modifications mentioned below) will be subject to the new rules - the support will not be taxable to the payee nor deductible to the payor.  These orders include not only new divorces, but modifications of existing spousal support orders (again with the exception of what is noted below).

So, all spousal support orders entered prior to January 1, 2019 will be subject to the old rules for so long as that order is in effect - meaning support resulting from those orders will still be taxable to the payee and deductible to the payor until the support is modified or ends.

All spousal support orders resulting from an agreement entered prior to January 1, 2019 will also be subject to the old rules for so long as that order is in effect - meaning support resulting from those orders will still be taxable to the payee and deductible to the payor until the support is modified or ends.

Finally, all modifications of spousal support agreements or orders that were entered prior to January 1, 2019 will be subject to the old ruled unless the modification order or agreement states otherwise.

So, the new rules will apply to all new spousal support orders and agreements entered after January 1, 2019 and all modifications to old agreements or orders that specifically state the new rules apply.

Beginning January 1, 2019, the old rules will still apply to all spousal support orders and agreements that were entered before and have not been modified since January 1, 2019, and to all modifications since January 1, 2019 to old spousal support agreements and orders that did not specify that the new rules apply.

Impact on Settlement

The old tax treatment of spousal support is a friend to many family law attorneys trying to settle cases.  This is because when parties cannot agree on how a piece of property is to be divided, it is quite common to turn to spousal support as the solution.  Instead of financially dividing the property directly, the higher earning spouse agrees to pay a certain amount of spousal support to the lower earning spouse in exchange for the lower earning spouse waiving his or her right to the property.  The higher earning spouse will frequently end up paying on net less than he or she would have for a straight property division while the lower earning spouse will frequently end up receiving on net more than he or she would have for a straight property division because the higher earning spouse's additional tax savings from the spousal support will be greater than the lower earning spouse's additional tax liability due to the varied tax brackets.

Moreover, the old tax laws made spousal support much easier to settle on its own.  Higher support amounts were always more palatable to a payor when he or she knew that they would be deducting that money from their taxes.  A payee may now not have to set aside funds for estimated taxes, but the lower spousal support amounts likely to result will often mean the payee will have to choose between accepting less money than he or she needs, or fighting it out in court.

Impact on Child Support

At first blush, a change to the tax treatment of spousal support does not seem like it should impact child support at all.  However, if you know how child support is determined, you quickly realize this isn't the case.  As you probably already know, in most cases child support is determined by a set of state-sanctioned guidelines.  One of the inputs for the guidelines is the income of each parent.  However, of relevance to us, the guidelines also consider spousal support - spousal support being deducted from the guidelines income of the payor, and added to the guidelines income of the payee.

There is a problem with this going forward, however.  The child support guidelines are based on gross income.  That is, income before taxes.  In a world where spousal support is deductible to the payor and taxable to the payee, the guidelines' treatment of spousal support makes perfect sense - spousal support in that world really is a change to the parties' gross income, so it should be treated accordingly.

In the new world, spousal support is instead a change to the parties' net income.  If it continues to be treated the same way by the child support guidelines, this will be unfair to the spousal support payor because the gross income impact of his or her spousal support payment is now a larger decrease than the support payment itself, but only the net income impact would be getting deducted from his or her income (and similarly, the payee gets a bit of a windfall, since the gross income impact of his or her spousal support payment is now a larger increase than the amount of support itself, but only the net amount is being added to their income).  If spousal support is removed from the child support guidelines altogether, this would be even more of a windfall to payees, unless the formula used in the guidelines were changed, which would then unfairly impact the families where there is no spousal support involved.

The most logical way to handle this, then, would seem to be for spousal support to continue to be handled the same way, except have it increased by a certain percentage when plugged into the guidelines.  Setting that percentage would be challenging, however.  The General Assembly seems to recognize this, and is currently considering HB 1331 which, if passed, will require the state's Child Support Guidelines Review Panel to conduct a review of the guidelines outside their usual every four year window.  The purpose of the review would be to propose any changes necessary to bring the guidelines into compliance with federal law, which mandates that the guidelines determine child support "appropriately."  However, the report on this review would not be due until November 1st, and any resulting legislation would likely not come into force until well into 2019.

What this all means is that, unfortunately, for some time going forward, more child support cases are going to likely have to get into deviations from the guidelines (deviations based on "tax consequences" are allowed by the Code), which, like in the previous section, likely means more costly litigation, and less settling.

Impact on Total Finances

Imagine a spouse who earns enough money to be in the 28% tax bracket and one who is in the 10% bracket.  The higher earning spouse pays $24,000 a year to the lower earning spouse in spousal support.  Under the old law, the higher earning spouse would save $6,720 in taxes because of spousal support, while the lower earning spouse would owe $2,400 in taxes because of spousal support.  This means that there was effectively an extra $4,320 available to the family unit because of tax law.

Under the new tax law, that $4,320 is gone.  The higher earner gets no savings from taxes.  In order to effectively pay the same amount, the spousal support would have to be reduced to $17,280 a year.  However, in order for the lower earner to effectively receive the same amount, spousal support would have to be $21,600 a year.  I've already discussed how this disparity is going to make cases harder to settle, but even after they do settle or resolve in court you've still got a problem - no matter what, under the new law, one or both former spouses will end up with less money than they would have under the old law.  When considering that divorcing families are already frequently in financial distress, this backdoor tax increase will create a real hardship for many divorcing families.

Why 2018 May be the Year to Get Divorced

All of this comes together to reach my ultimate point.  We know this change in law is coming, but there is a way to avoid the difficulties settling, the complicated child support calculations, and the loss of combined financial resources - get divorced in 2018.  Because of the grandfathering of the law, if you get divorced this year, you can still take advantage of the old law's tax benefits, before they disappear.

As I state in the intro, I never want to rush anyone into divorce.  But the reality is that if your goal is to keep as much money as possible within the family, avoid unnecessary litigation costs, and keep things simple - you're far better off divorcing in 2018 than in 2019.

Conclusion

The new tax law is set to make a major impact on divorces across the country.  No change is likely to have a greater impact on family law than the change in the tax treatment of spousal support.  Among other potential impacts, it will make settling cases harder, child support more complicated, and reduce the total amount of money available to divorcing family units.  Overall, it makes 2018 a financially superior year to get divorced than 2019 and beyond.  If you are thinking about a divorce, and the tax law has you ready to make your decision, feel free to read our initial consult policy, then call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Classic Law is Your Friend: Support Payments During a Government Shutdown

In light of today's events going on in Congress, I thought it would be a good time for me to whip out this oldie but goodie I published during the last major government shutdown in 2013. It is targeted towards my readers who are federal employees or contractors who will not get paid during a shut down, or who are involved in a family law case with such a person. This post addresses what will happen to your spousal or child support payments (be it as an obligor or obligee) and some options to alleviate the pain from support if you are a support payor who suddenly does not know when your next paycheck will be coming.

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

Introduction

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees.  Federal employees face an unusual array of challenges when it comes to family law to begin with.  Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs.  Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay.  There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party.  If you are on good terms with your ex, this may be a viable option.  You should contact your ex immediately to discuss the issue.  A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation.  If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly.  Unfortunately, that's where the simplicity of this solution ends.  Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard.  An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing).  Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high.  If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee).  There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option.  If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay.  Maybe DCSE and/or your ex won't take any action, but there is a chance they will.  If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest), and there's a good chance you'll also be ordered to pay attorneys' fees.  You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own.  There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support.  The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it.  Nonetheless, there are options, and you should know them before you take action.  If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Your initial consultation is free for up to half an hour!"

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!

Interstate Child Support - Virginia Law

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

Introduction

In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states.  It might not surprise you, then, to learn that similar issues arise frequently involving child support.  Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.

In today's post, I will discuss how issues of interstate child support are handled.

UIFSA

Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states.  The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states.  Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents.  Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding.  As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.

In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.

Initial Support Order

Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order.  Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents.  A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction.  A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located.  If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:

• The non-petitioning parent is personally served with process in the state where the petition was filed;
• The non-petitioning parent consents to jurisdiction, either expressly or by implication or waiver;
• The non-petitioning parent has ever resided with the child in the state where the petition was filed;
• The non-petitioning parent has ever resided in the state where the petition was filed and paid for pre-natal expenses or supported the child while living there;
• The non-petitioning parent directly caused the child to become a resident of the state where the petition was filed;
• The parents had sexual intercourse in the state where the petition was filed at a time that it is reasonably likely the child was conceived in that state;
• The non-petitioning parent asserted parentage of the child in the putative father registry of the state where the petition was filed;
• The non-petitioning parent has signed a contract in the state where the petition was filed agreeing to pay support; or
• There is another basis under the laws of the state and the constitution to allow for jurisdiction.

If jurisdiction over the non-petitioning parent is present, then any state can issue the initial support order.

Simultaneous Proceedings

Since, unlike custody and visitation cases, UIFSA does not usually give us a clear-cut "proper" first state for support orders, it is entirely possible for petitions to be filed in multiple states, and have both states be proper forums (assuming there is no already existing support order, which I'll get to in a moment).

In the case that more than one proceeding to establish an initial support order is pending at the same time, then the state that is proper to hear the case goes in the following order of priority:

1. If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
2. If 1 does not apply, then if either state is the UCCJEA "home state" of the child, that state gets to make the initial order if the non-petitioning parent in the other state challenges that state's jurisdiction within the deadline to do so.
3. If 1 does not apply and 2 does not apply (either because neither state is the child's "home state" or because the non-petitioning parent did not challenge jurisdiction in time), then the state where a petition was filed first gets to make the initial order.

I actually did encounter a case once where both states had jurisdiction over both parents, the non-petitioning parent in the state that was not the child's "home state" failed to challenge jurisdiction in time, and the Virginia court ended up dismissing the case (despite Virginia being the child's "home state") because the Virginia petition was filed 23 minutes after the petition was filed in the other state - so this is stuck to pretty tightly.

Continuing, Exclusive Jurisdiction

As with custody and visitation, once that initial order is entered, it generally stays in that state.  The state that entered the original order has what's called "continuing, exclusive jurisdiction," meaning only that state can modify the order.  A state will continue to have continuing, exclusive jurisdiction for so long as either parent or the child still resides in that state unless all parties consent to the case being moved to another state.  Additionally, even if no one remains in the state, it will still have continuing, exclusive jurisdiction if all parties consent to the state continuing to have it.

Conflicting Orders

Now, here's an odd thought.  What if two states have jurisdiction to enter an initial order, neither non-petitioning parent ever objects to jurisdiction, and so both states end up issuing orders and having continuing, exclusive jurisdiction?  Well, then it's up to the state where the modification or enforcement proceeding is being initiated to determine which order "controls."  The rules on this are fairly simple.  If only one state would have continuing, exclusive jurisdiction, that state's order controls.  If neither state would have continuing, exclusive jurisdiction, then neither order is controlling and the state trying to sort it all out must issue its own support order.  If both states have continuing, exclusive jurisdiction, then the order issued by the child's current home state controls, and if neither state is the child's current home state, then the last order entered controls.

Enforcement of Orders

As with custody and visitation, the unanimous adoption of UIFSA means that once a valid support order is entered, as long as it is the controlling order, all states will enforce it.  As a practical matter, this means the state where the payor lives, since that's the one that will have the most ability to conduct effective enforcement.

Modification of Orders

A state always has the power to modify its own support orders so long as that order remains the controlling order.  Of course, as long as a state has continuing, exclusive jurisdiction, it is also the only state that can modify its controlling order.  If, however, the state that issued the controlling order does not have continuing, exclusive jurisdiction anymore, then modification proceedings can be held in the following states:

• The state that issued the controlling order;
• The state both parents reside in if they both reside in the same state (as long as the child does not reside in the state that issued the controlling order, since that state would then still have continuing, exclusive jurisdiction);
• Any state the parent seeking to modify child support does not reside in so long as no parties reside in the state issuing the currently controlling order and the state where the modification petition is filed has jurisdiction over the non-petitioning parent; or
• A state where the child resides or either parent is subject to jurisdiction if both parents have filed a consent in the state that has issued the current controlling order agreeing to the new state having power to modify the order.

Conflict of Laws

One of the biggest issues we face when modifying another state's support orders is that different states have vastly different laws about how child support is calculated.  As a result, UIFSA takes into account that different states modifying other states' orders can create some unfairness.  As a result, it lays out the following rules to determine which laws to use when modifying the support order of another state:

• If a provision of the original support order cannot be changed under the laws of the state issuing that order, that provision cannot be changed in another state's modification proceedings either.
• The amount of support, the frequency in which it is paid, and the manner in which it is paid is determined by the law of the state issuing the new, modified order unless any of those provisions cannot ever be changed under the laws of the state issuing the original order.
• The duration of support (as in, how long it lasts) is determined by the law of the state issuing the original order.

Federal Law

Unlike in custody and visitation, there is no particular federal law you need to know here.  The federal government mostly stays out of child support.  The only real exceptions are the aforementioned welfare reform laws requiring states to adopt UIFSA and a federal law making it a federal crime to willfully fail to pay your child support obligations if you owe that support obligation across state lines.  Neither of these laws directly affect the substance of the laws on establishment and modification of support across state lines.

Conclusion

If you feel like this all sounds even more complicated than the rules for interstate custody and visitation disputes, you're right, it is.  This is why is it critical to have an attorney who knows and understands these laws if you are involved in an interstate support dispute.  If you are involved in an interstate support dispute and would like legal assistance, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation (though please do read my initial consultation policy first).  Our initial consultations are free for up to half an hour!

Interstate Custody Disputes in Virginia - Where does this case belong?

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

Introduction

Imagine for a moment that you are involved a nasty custody dispute with your ex.  You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state.  You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there.  You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order.  What then?

For a long time, this was not an uncommon occurrence.  No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways.  Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.

Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law.  What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key.  In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.

Applicable Laws

The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA).  This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions.  It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.

The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA).  This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law).  The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.

Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA.  As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.

Basic Rule for an Initial Order

So, let's start at the top.  Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states.  In what state is the custody or visitation case to be held?  Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this.  Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).

While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined.  A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth).  So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed.  If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.

This rule is expressly designed to prevent forum shopping.  If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.

Now, of course, there are loads of exceptions to the home state rule which you can already imagine.  For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months.  Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.

In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).

If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.

Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).

Enforcement of the Order

Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified.  This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others.  As a result, under federal law, all properly entered custody orders must be enforced by every other state.

Modification of the Order

Now, as you should know, custody and visitation is modifiable over time.  So, once you have an initial order entered, what state can modify it?  Well, this depends on a couple of issues.

The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case.  A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits.  In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.

If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction."  In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order.  Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.

Some Examples

So, all of the above is a bit of a mess.  Let me break it down for you a bit better with an example.

Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George.  All three live happily together in Alabama for four years.  Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia.  Both Bob and Suzy want custody of George and two months later a custody case is filed.

This case is most likely to be properly heard in Virginia.  This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply.  Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.

So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia.  Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time.  Where does that modification need to filed?  Probably still in Virginia!

Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order.  Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order.  As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.

Now, let's say Virginia enters a modified order and Suzy gets more time with George.  About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him.  Where does he file for that modification?  Now we're in West Virginia.

At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.

Finally, the West Virginia court allows Bob and George to move to Texas.  Three years later, Suzy decides she should have custody of George and moves to modify custody.  Where does she file that motion?  Still in West Virginia.

This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.

Conclusion

Confused?  Don't be sad - the mishmash of interstate rules is a mess that confuses many people.  By and large, they're a good mess.  They fix the horrible state of things that existed before they were adopted.  Nonetheless, it makes proceeding in these cases without an attorney virtually impossible.  If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney.  If you're interested in the services of my office, you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to thirty minutes!

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

So, the two methods come to very similar results.

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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!