Relevant Changes in Virginia Law - 2020 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

Every year, I put together a blog post with changes to the law that have occurred in Virginia relevant to my blog.  Usually I do this in the spring, after the new laws are enacted but before they go into effect, but as you may have noticed there is a bit of a pandemic going on, so my time to put together this blog post has been limited.

There are actually a lot of interesting changes in law happening in Virginia this year - this was inevitable with the change in party control that happened following the 2019 elections - but many of the big ticket items are not particularly relevant to this blog.  I do recommend, however, that you read one of the many fine articles written about some of these laws, as they impact everything from Confederate statues to gun control to casino gambling to state holidays to marijuana possession.  As usual, though, this blog post will just focus on changes in the law that impact the topics covered here.

The laws referenced herein all went into effect on July 1, 2020.

Step-Parent Adoption Background Check

One change in the law involves a law that didn't get enacted.  In my 2018 law change update, I noted that a new law had passed requiring the step-parent in all step-parent adoptions to pass a criminal background check.  As I noted at the time, however, in recognition of the disruption this change might cause, the law was effectively a test, and expired July 1, 2020.  Sure enough, the requirement proved exactly as disruptive and problematic as I feared it would, and the bills seeking to extend this law all failed - so as a result, the step-parent adoption background check provision was allowed to expire.

Pregnancy Expenses in Child Support

There is often a big blind spot in child support law, particularly involving unmarried parents, where a father only has to support the child after the child is born, while the mother has to bear all the costs of having the child.  The Virginia General Assembly looked to address some of that imbalance this year with the adoption of SB 428.  Under the terms of this law, if a petition for child support is filed within six months of a child being born, the noncustodial parent can be ordered to pay, in proportion to the parties' gross incomes, any "reasonable and necessary" expenses of the mother's pregnancy and childbirth that was not covered by insurance.  Now, the statute does not define these expenses and as a result, they are arguably not limited to medical expenses, but could include things like child birth classes, pre-natal vitamins, and other such costs of a pregnancy.

Modification of Contractual Spousal Support Language

Once again, in my 2018 law change update I noted that a rather major change was made to the law regarding modification of spousal support that had been set by a contract or property settlement agreement.  As I noted at the time, the law had previously been that if the contract did not lay out exactly how the spousal support was to be modifiable, then the support could not be modified no matter what.  In 2018, the law was changed so that the default was that for all new contracts/agreements made after July 1, 2018, the default was that such support could be modified the same was as if it had been set by a court instead of an agreement, unless the agreement contained specific language that was included in the new Code Section to make the support non-modifiable.  Well, this caused some problems because a number of people who really did want their spousal support agreement to be non-modifiable failed to use the exact language stated in the Code, and so the support was found to be modifiable even though this was clearly not the intent of the parties.  As a result, this year the General Assembly passed HB 1501 which again amended the law.  Now, it remains the default that spousal support set in agreement is modifiable (as was put in place by the 2018 law change), but now, to make that support non-modifiable, you just have to have language in the agreement indicating that it is non-modifiable, you do not have to use the specific words contained in the law.

Pendente Lite Spousal Support Guidelines

As has been discussed on my blog previously, if you need spousal support while waiting for your divorce to finalize, you can file for pendente lite spousal support - a motion that provides support just temporarily, until the case concludes.  I noted in my previous blog post that pendente lite spousal support in the J&DR Court involves a formula for setting the support amount, and that in the Circuit Court (where divorce cases are held) many localities have adopted their own formulas but there is no uniform rule.  HB 1500 has now changed this by applying the J&DR formula to pendente lite hearings in the Circuit Court as well.  It also adjusted the formula to take into account changes in tax law, so the formula is now 26% of the payor's gross income less 58% of the payee's gross income where there is also at least one minor child in common between the parties, and 27% of the payor's gross income less 50% of the payee's gross income where there are no minor children in common.  As before, however, these formulas apply only to pendente lite rulings - the final determination of spousal support is still made without reference to any formulas.

Tenants' Rights and Responsibilities

One of the biggest disadvantages tenants have in landlord/tenant law is a simple lack of knowledge of the law that a more sophisticated landlord usually has.  HB 393 seeks to address some of that imbalance by requiring the Virginia Department of Housing and Community Development to put together a plain language list of tenants' rights and responsibilities.  The law now requires that this list be provided by a landlord to all prospective tenants before signing a lease, and prohibits the landlord from taking any legal action against tenants (including eviction) for a lease violation unless and until the rights and responsibilities list has been provided to the tenant.

Fifth Amendment and Adultery

As I have addressed before, adultery remains highly relevant to Virginia family law, but proving adultery has occurred is exceptionally difficult because adultery, while almost never enforced, remains technically a crime in Virginia, and as a result a party who commits adultery can avoid having to admit having done so by pleading the Fifth.  This has been a matter of some concern and consternation in the family law field for some time, leading to a range of potential solutions to decrease the cost of divorce litigation while easing the process for a spouse to prove that he or she was a victim of adultery.  This year, the General Assembly looked to do that by adopting SB 433.  SB 433 amends a provision of Virginia Law that prohibits courts from holding it against a party to a civil case if that party invokes a constitutional right (which would include pleading the Fifth).  Now there is a specific exception holding that in any civil case for divorce, spousal support, custody, or visitation filed after July 1, 2020, "if a party or witness refuses to answer a question about [adultery] on the ground that the testimony might be self-incriminating, the [court] may draw an adverse inference from such refusal."  In other words, the judge can (but is not required to) decide that you pleading the Fifth when asked about adultery means you are, in fact, guilty of adultery.  This is a major change in family law that could substantially impact how family law cases involving accusations of adultery are litigated moving forward.

Conclusion

So those are the big changes impacting the topics covered by this blog.  Those are not the only changes in these fields, I'd note, so if you have a question about how any of this year's law changes impact you - ask your attorney!  If you don't have an attorney, then check out our initial consult policy in the link at the top of the page or by clicking here, and feel free to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or give us a call at (703)281-0134.  Our initial consultations are free for up to half an hour!

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.

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!"

Reconciling in Virginia - The Law When You Work Things Out

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

Introduction

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

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

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

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

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

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

Slightly Tougher:  You Have a Signed Agreement

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

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

What if Orders Have Been Entered?

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

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

What if We Divorced?

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

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

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

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

Conclusion

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

Relevant Changes in Virginia Law - 2018 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.

[UPDATE:  Some information in this blog post is no longer accurate due to subsequent changes in the law.  Please see my changes in the law blog posts for 2019 and 2020 for more information.]

Introduction

As I have done every April 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.  This year it turns out had a pretty heavy dose of family law changes that relate to past blog posts - so I will cover those here.  There was also one big change to Landlord/Tenant Law that I also need to cover.  So, with that, here we go.

All laws listed here are effective as of July 1, 2018.

All Residential Leases the Same

Last year, I made a big deal about a law that made the VRLTA apply to almost all residential leases, and that greatly reduced the number of differences between VRLTA and common law/Chapter 13 leases.  Well, this year, the final act has come.  HB 857 passed and signed into law this year eliminates all remaining differences between the VRLTA and common law/Chapter 13 leases, such that all residential leases are now governed under effectively the same terms, whether under the VRLTA or not.  Perhaps most importantly - this includes the VRLTA's provision prohibiting lease provisions that waive any rights under the law.

Retirement a Material Change in Circumstances

Back in 2014, I put together a post about the dangers of retiring if you owe spousal support, and the tendency of courts to consider that a voluntary action such that spousal support will not get modified.  This year, SB 540 is changing that.  Under the new law, the payor of spousal support reaching full retirement age, as described by the federal Social Security Act, is automatically to be considered a material change in circumstances, and instead of outright dismissing motions to modify spousal support due to retirement, the Code now requires the Court to consider a new set of statutory factors when making this decision.  As a result, being an indefinite spousal support payor should no longer mean you never get to retire.

Agreed Spousal Support is Modifiable by Default

In 2016, I did a post listing the five biggest mistakes I see people make in their divorces when not represented by an attorney, and number one on that list was signing a Separation Agreement/Property Settlement Agreement that sets spousal support, but does not say if or how the support is modified.  Under current law, spousal support set by an agreement is only modifiable in the way described in the agreement, and if no way is described, the support can never be modified.  SB 614 will now flip that around.  For all Separation Agreements/Property Settlement Agreements entered into after July 1, 2018, spousal support in said agreement will, by default, be modifiable in the exact same way as if the Court had set that spousal support, unless specific language is included in the agreement making the spousal support non-modifiable (the language required to be used can be found in the new law).  This new law will provide substantial relief for people who try to do their divorce themselves, but don't think about every eventuality the way that a lawyer would.

Background Checks for Step-parent Adoptions

One of my favorite practices that I conduct is adoptions, and amongst my favorites types of adoption cases are step-parent adoptions.  In a step-parent adoption, the spouse of a child's parent decides that he or she is ready to have that child not just be "like" their own child, but actually be their own child, and legally adopts the child.  I did a blog post on step-parent adoptions back in March, 2014.  Unfortunately, however, as with many areas of law, some people use this process to abuse the system.  In recent years, several cases have arisen where convicted sex offenders or other criminals who would not be eligible to adopt a child have gotten around that prohibition by marrying a child's parent and using the permissive and largely passive step-parent adoption process to adopt the child.  Several cases, unfortunately, ended with the step-parent, now legally the child's parent, divorcing the parent, getting court ordered custody or visitation of the child, and abusing the child while in his or her care.  HB 227 will look to solve this problem.  This new law, effective July 1, 2018, authorizes step-parents pursuing a step-parent adoption to receive a formal criminal background check on themselves from the Virginia State Police, and then requires that step-parent to submit the background check to the court for review prior to the granting of a step-parent adoption.  It is sad that the General Assembly felt this step necessary, as this will now prolong and increasingly complicate the step-parent adoption process that had previously been intentionally simple, but unfortunately the lengths to which some abusers go to find victims has made some kind of reform necessary.  That being said, the General Assembly recognized the impact this may have on the process, and so the law is only experimental.  Unless a new law is passed extending it, HB 227 will expire on July 1, 2020.

Mixed Custody Child Support

In 2014, I did a post laying out how child support is calculated, and then I listed a series of complications.  Complication 4 in that post was when children have varying custody arrangements (sole vs. split vs. shared).  At the time, I noted that the Code was silent as to how these child support calculations were to be done, and instead you should try a few different approaches and come to court with the one that comes out best for you while prepared to argue why that's the right approach to take.  HB 1361 has now changed this.  The law now specifically addresses how to deal with cases where kids with shared custody have differing numbers of days with each parent, how to do the calculation when at least one kid is in a sole custody arrangement and at least another is in a shared custody arrangement, and when at least two kids are in a split custody arrangement and at least another is in a shared custody arrangement.  The new calculations are very complicated, but it is now one less area to potentially fight over in court.

Conclusion

While impossible to convey in a single post like this, the family law changes listed herein are, to some degree, game-changers in the field.  I'm very excited to integrate these new laws into my practice.

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!"

A Chance to Change Virginia Law on Adultery

As always, before reading this post, please review my disclaimer by clicking on the link above or clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.  Please also be aware that any opinions expressed in this blog post are solely that of the author.

Introduction

Since announcing in October that my regular blog posts would be coming to an end, I've occasionally been inspired to write posts, but just haven't gotten myself together enough to actually do one.  Today, however, I was hit by inspiration to write on a topic of sufficient importance in family law that I actually have forced myself to sit down and post.

Adultery is a touchy subject in family law, but it is routinely present.  In my own experience, it's responsible, in part or in whole, for probably about a third of divorces.  Its impact on a divorce case is also substantial.  An adulterer generally cannot receive spousal support, can get hit in the equitable distribution of property, and a divorce can be granted on adultery grounds right away instead of having to wait for a year of separation.  However, adultery is very hard to prove in Virginia because a) the burden of proof is "clear and convincing evidence" (instead of just "more likely than not"), and b) the adulterer can plead the Fifth Amendment to refuse to answer questions about it.  We have a chance right now, however, to make it easier to prove by taking away the Fifth Amendment as an adultery defense, and that is a topic I wanted to write about today.

How the Fifth Works for Adultery

The Fifth Amendment's famous protection against self-incrimination is one of the most powerful tools the Bill of Rights gives us against government.  It plays a key role in preventing coercion, torture, and other means by which the state used to force confessions out of people.  The way it works in a civil context is that in any civil case (such as divorce), if answering a question could result in you incriminating yourself, you simply refuse to answer on the grounds of the Fifth Amendment.

In Virginia, for adultery, this is crucial for two reasons.  First, adultery is actually illegal in Virginia.  Virginia Code Section 18.2-365 makes adultery a Class 4 misdemeanor.  For reference, a class 4 misdemeanor means that the maximum punishment for conviction is a fine of up to $250.  While it has been eight years since Virginia's last prosecution for adultery, and there have only been three prosecutions in the entire 21st century to date, this crime remains on the books, and as a result the Fifth Amendment is available as an option for those accused of adultery.

Now, in most states, this actually wouldn't be a huge problem.  This is because unlike in criminal cases, in civil cases, while you still cannot be prosecuted for pleading the Fifth, the fact that you pled the Fifth can be used as an implied confessions and subsequently be used against you within the civil case itself.  Virginia, however, prides itself (I think rightfully so) on the degree to which it supports constitutional governance.  As a result, Code Section 8.01-223.1 forbids Virginia trial courts from using a person's invocation of a constitutional right (including the Fifth Amendment) against them even in a civil case.

What this means in a family law context is that adultery, while the lowest level of misdemeanor we have, and while rarely enforced, is still technically a crime, and subsequently the Fifth Amendment can be used as a shield and a sword by an adulterer in a divorce case to get that person rights and protections he or she should not have.

The Proposal to Change This

Now, looking at all of this, I would hope you agree that we should not weaken the impact of the Fifth Amendment in Virginia.  So, while it's fairly unique amongst the states, I fully support keeping Code Section 8.01-223.1 in place.  The obvious "solution," then, would seem to be, at least in this day and age, taking the crime of adultery off the books.  This solution isn't as simple as it seems, though.

Take, for example, employment law.  Virginia is an "at will" employment state - meaning that unless you have a contract specifically stating otherwise, you can be fired at any time for any reason (you can also quit at any time for any reason).  As a result, it is very hard to sue for wrongful termination in Virginia.  However, there are exceptions - and one of the biggest exceptions is that your termination "violated public policy."  In general, however, to violate public policy, the termination has to involve a violation or potential violation of the laws of the Commonwealth.

The adultery statute, then, has been one of the strongest swords in bringing wrongful termination suits by employees fired after refusing sexual advances from a superior.  If either the employee or the superior was married, then any sexual relationship would have been adultery, and subsequently the public policy exception is triggered.  There's been extensive argument that removing adultery from the books would make these cases harder.  Similarly, in some sexual assault cases, the availability of an adultery charge has helped ensure a case is not prematurely dismissed while additional evidence is collected.  In short, taking adultery off the books would have some potentially damaging unforeseen consequences.

Instead, State Senator Scott Surovell has proposed SB 1124, which would change adultery from a criminal to a civil offense, with the maximum penalty being $250 which would be paid to the state literary fund.

A civil offense, unlike a criminal offense, does not go on your criminal record, does not have to be proven beyond a reasonable doubt, can be subject to bankruptcy proceedings, and failing to pay often is not contempt of court (unlike criminal fines).  Of relevance to us, however, is that civil offenses are not afforded the protection of the Fifth Amendment.

Potential Impact of Change

The potential impact of SB 1124, then, is huge.  While still protecting employees and preventing the other "bad effects" of taking adultery off the books completely, changing it to a civil offense would mean that adulterers in a family law case would have to choose between confessing and committing perjury (a felony).  This will also make it easier to potentially question the paramours of an adulterous spouse.  As a result, SB 1124 would, in my opinion, keep all the benefits of having adultery on the book as a crime, while getting rid of the drawbacks.

How You Can Help

So, this might seem like a no-brainer.  But, unfortunately, it isn't.  This is not the first time Senator Surovell has proposed this bill.  Last year, our socially conservative General Assembly refused to pass the bill even out of committee because they feared the message it would send by saying we don't take adultery seriously in Virginia.  As ridiculous as this may seem, the fact is most members of the General Assembly are not lawyers, and have no idea how badly the current law actually hurts the victims of adultery.

That's where you come in.  Please consider contacting your State Senator and Delegate (especially if they are a Republican, but even if they aren't) and talk to them about this bill.  Tell them how important it is to you to see the adultery loophole closed so that victims of adultery can get the justice that the law entitles them to.

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!

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

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

Introduction

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

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

What can cause spousal support to be terminated?

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

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

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

Exceptions to spousal support termination

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

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

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

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

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

How to file the motion

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

Reasons to go to court with self-executing terminations

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

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

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

Conclusion

Terminating spousal support is almost as complicated as establishing it.  Doing it without an attorney can set you up for a whole lot of trouble.  If you are paying spousal support and think it should terminate (or if you are receiving it and your ex has stopped paying improperly), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Spousal Support Myths vs. Reality

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.

Introduction

Back in 2014, I did a blog post on the myths vs. the reality of child support law in Virginia.  It covered some of the most common misconceptions I routinely encountered regarding child support, and was fairly well received.  Nonetheless, I do find myself facing more and more often similar misconceptions regarding spousal support.  In today's blog post, I hope to similarly take on some of the most common of those misconceptions I encounter.  As with the child support post, the format of this post will be a presentation of a common spousal support myth I encounter, a 1-2 sentence statement of the "reality" then a longer explanation.

Myth:  I can figure out what spousal support should be based on a formula.

Reality:  There is no accepted formula in Virginia for calculating spousal support, and you would rely on one at your own peril.

Unlike child support, spousal support does not have guidelines.  Well, that's not completely true - in J&DR spousal support cases, and in a few local jurisdictions for divorce cases, there are guidelines for setting spousal support pendente lite (temporary support awards that expire when the litigation ends), but there are no guidelines for a final award.  Instead, there are a list of factors the judge must consider, and then the judge must come up with a proper award from those factors.  Many judges won't even allow "guidelines" to be presented in a spousal support case.  As a result, if you've planned your case around "guidelines," you could be in trouble.

Myth:  I can change spousal support if there's been a "material change in circumstances."

Reality:  A material change of circumstances is sufficient to modify spousal support only if you are subject to an indefinite spousal support award, or you are within the time period of a reservation of spousal support.  Otherwise, the situation is complicated.

Child Support, custody, and visitation can all be changed with a material change in circumstances, so it's not surprising that most people think spousal support is the same way.  However, as the post I just linked to points out, spousal support is much more complicated.

It's worth noting that once upon a time in Virginia, spousal support could not be modified.  Once it was ordered it was in effect for life and could not be changed unless either party died or the person receiving the support re-married.  In around the 1920's, the General Assembly stepped in and changed this, but because the "common law" rule is that spousal support can never be modified, the modification rules come purely from statutes.

So, the first question with spousal support is whether or not it can be modified.  If spousal support was set by a settlement agreement or contract, it can only be modified if the agreement itself specifically states when and how support can be modified.  If the agreement is silent as to modification, then it cannot be modified.  If the agreement says it can be modified, then the rules set in the agreement dictate how it is modified.

If spousal support has been set by a court, then it can be modified unless 1) the court ordered defined duration spousal support and the support has now ended, or 2) the court declined to award spousal support at all, and (and this "and" applies to both 1 and 2) the court either A) did not order that there be what's called a "reservation" of spousal support, or B) the court did order a reservation of spousal support, but the reservation time has now passed.  So, unless you have either 1 or 2 and either A or B, court ordered spousal support can always be modified.

So, the next step is how is court ordered support modified?  Well, if the court ordered indefinite spousal support (as in, no set end date), or if there is no spousal support being paid at the moment but a reservation is in effect, then a material change in circumstances allows a modification.  However, where the court ordered defined duration support, and that support is still ongoing, a material change in circumstances is neither necessary nor sufficient to modify support.  Instead, the party must show either that 1) something the court thought would happen has not happened (or something the court thought wouldn't happen has happened) through no fault of the party seeking modification, or 2) there's been a material change in circumstances not foreseen by the court when it made its order.  So, in that situation, while a material change in circumstances can cause spousal support to be eligible for modification, it is only available to do so when the material change was something the court did not foresee when it made its initial order.

Myth:  I'm entitled to be supported sufficiently to live the same lifestyle as I did before the divorce.

Reality:  First the court must determine that you are entitled to any spousal support, then, if it does so determine, the court uses a list of factors to set your support, of which your lifestyle prior to divorce is only one.  In fact, the most important consideration for the court in setting the amount of support tends to be what you need and what the payor is able to pay.

So, the first thing the court must consider is whether you're entitled to support at all - and your lifestyle prior to the marriage is not really part of that consideration.  Instead, the court considers what led to the breakup of your marriage, and, typically, your relative incomes.  Then the court when setting the amount and duration of support considers 13 factors laid out in Virginia Code Section 20-107.1(E), of which your lifestyle during the marriage is just one factor.  Amongst those factors is not only your current income and expenses, but also your earning capacity - so if the court thinks you are voluntarily underemployed, it might act as though you earn far more than you actually do.  Finally, the court considers what you need (including consideration of what your earnings are and/or what they should be) and what the payor can actually pay, then sets support accordingly.

Considering the financial disruption that occurs during a divorce, let me put this bluntly.  In my legal career to date, I have never once seen a judge order someone to pay an amount of spousal support that would be sufficient to maintain the other spouse in the "same lifestyle" as they had prior to the separation and divorce.  As a result, you would be doing yourself a grave disservice if you come into the case thinking you will receive such an amount of support.

Myth:  I should expect spousal support to last about half the duration of the marriage.

Reality:  While some judges do like to follow this "rule of thumb," doing so specifically would be contrary to the law, and in fact most cases do not warrant this kind of award.  Instead, the most typical consideration for the duration of the award is whether the payee can ever reasonably be expected to be able to solely support him or herself, and if so, how long that will take.

Until just a couple of decades ago, spousal support was always indefinite - as in it had no set end date.  Then the General Assembly decided the court should have the option of having what's called "defined duration" support, where there is a set end date, and sure enough, today the vast majority of spousal support awards are defined duration awards.  The General Assembly also decided that situations where a spousal support award may not be warranted right away, but might be in the future, should also be addressed, so it created the concept of a "reservation" of spousal support.  A reservation basically means no support is awarded right now, but until the reservation expires either party can come back to court and seek spousal support if something changes.  The General Assembly also said that, unless "good cause" is shown otherwise, the duration of the reservation should be half the length of the marriage.

You can see where I'm going with this - somewhere along the line people started assuming that the presumed duration of the reservation meant the duration of a defined duration spousal support award also should be half the length of the marriage.  Even a number of judges started operating under that assumption.  However, the Court of Appeals has repeatedly made clear that this is not a good rule of thumb to operate under.  Instead, the trial court must figure out what it expects to happen over time, and that if whatever caused the trial court to think support is warranted right now will likely change, the court should target that date for the end of its defined duration.  As a result, the defined duration might be well less than half the length of marriage (I've seen a case, for example, that resulted in one year of spousal support despite a nine year marriage), or it might be well more (I've seen 5 years of support awarded for a marriage that lasted 3 years, and knew an attorney who had a case where indefinite support was awarded for a marriage that lasted 18 months).

Considering that, as I said in the previous section, the most important factors for the court tends to be what the payor can pay and what the payee can (or should) need, the most important factor for the court in figuring out the length of a defined duration support award tends to be figuring out when the payee no longer will (or should) need the support.

Now, the way the length of marriage tends to come into this is that if one spouse, as often happens, stepped back in his or her career to allow the other spouse to thrive in his or hers, then the longer the marriage, the longer that step back lasted and the harder it will be for that spouse to regain their full place in the labor market.  This is why someone who's been a housewife or househusband for 30 years is very likely to get indefinite spousal support - because being out of the job market that long makes it very unlikely he or she will ever be able to fully support him or herself on their own.  In the meantime, if you only stepped back for two years, it might only take you two years or so of support to recover.

So, all in all, the "half the length of the marriage" rule of thumb, while some judges still follow it, is usually worth forgetting.

Myth:  It won't really affect my request for spousal support if I have sex with my significant other after my spouse and I have separated.

Reality:  By law, sex with someone other than your spouse is still adultery, even if you are separated, so the statutory bar to spousal support will still apply to you unless you can prove that your different economic circumstances are so substantial as to be able to say failing to award you spousal support would be a miscarriage of justice.

I recently covered in this blog the topic of spousal support and adultery.  Specifically that adultery bars the adulterer from receiving spousal support unless applying the bar would be a "manifest injustice."  Nonetheless, I repeatedly encounter the misconception that once you are separated, it's no longer adultery.  That just isn't true.  Until you are divorced, you are still legally married, and sex with anyone else is adultery.  As a result, even if that sex happens after you are separated, you are still subject to the statutory bar to spousal support.

Now realistically speaking, the fact that the adultery happened post-separation does strengthen your manifest injustice case.  This is because the manifest injustice calculation considers both the "degrees of fault" in the divorce and the "relative economic circumstances" of the parties.  So, if your adultery occurred post-separation, then it cannot be part of the "degrees of fault" calculation.  But nonetheless, any other thing you did to contribute to your divorce would still be considered.  The reality is, the manifest injustice exception was designed to apply to only the smallest sliver of cases where you might expect the party seeking support to be rendered destitute if they are not supported.  The likelihood that any given case will qualify for that exception is low, and the fact that your adultery occurred post-separation does not particularly increase those odds.

Conclusion

This post represents just some of the many misconceptions I encounter every day in spousal support cases.  If you are involved in a spousal support case, I would strongly encourage you to hire an attorney to help you work through all the misconceptions you may have.  If you are interested in my services, and have read my initial consultation policy, you can reach out to me by e-mail at SLeven@thebaldwinlawfirm.com, or by phone at (703)281-0134.  Our initial consultations are free for up to half an hour!