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.

When Finding a Lawyer Be Careful What You Wish For

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

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

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

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

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

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

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

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

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

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

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

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

An Introduction to Family Law Appeals in Virginia

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

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

Introduction

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

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

Rules for an Appeal

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

Getting the Appeal Started

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

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

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

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

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

Completing the Record

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

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

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

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

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

Assignments of Error and Contents of the Appendix

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

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

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

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

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

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

Brief and Appendix

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

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

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

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

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

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

Reply Brief

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

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

Oral Argument

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

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

Ruling and Mandate

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

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

Conclusion

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

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.

Interstate Child Support - Virginia Law

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

Introduction

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

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

UIFSA

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

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

Initial Support Order

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

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

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

Simultaneous Proceedings

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

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

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

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

Continuing, Exclusive Jurisdiction

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

Conflicting Orders

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

Enforcement of Orders

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

Modification of Orders

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

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

Conflict of Laws

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

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

Federal Law

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

Conclusion

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

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

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

Introduction

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

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

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

Applicable Laws

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

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

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

Basic Rule for an Initial Order

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

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

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

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

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

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

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

Enforcement of the Order

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

Modification of the Order

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

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

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

Some Examples

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

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

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

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

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

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

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

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

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

Conclusion

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

Relevant Changes in Virginia Law - 2016 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

I believe I have mentioned before that one of my favorite parts of being a lawyer is that it keeps me on my toes because the law is constantly changing.  Everything I've written in the past could well prove false in the future with a stroke of the Governor's pen or a new appellate opinion.  While caselaw is its own monster, late April and early May is an interesting time to be a lawyer in Virginia - at this point, we know all of the new laws that will take effect this year, but they won't take effect until July 1st (except for emergency laws), so we have some time to get ready.

As I did in 2014 and 2015, I have reviewed the new laws being implemented this year that I consider relevant to this blog, and will summarize them below.  As noted, all laws listed here do not go into effect until July 1st.

Strengthening Protective Orders

One of the major legislative compromises of this session was a deal reached between Governor McAuliffe and the Republicans in the legislature regarding guns.  McAuliffe agreed to allow a finding of Attorney General Herring which ended Virginia's reciprocity with most states for concealed carry permits to be reversed in exchange for the criminalization of possessing a firearm when a family abuse protective order is entered against you.  Under HB 1391 and SB 49, it is now going to be a felony to possess a firearm if a family abuse permanent protective order has been entered against you (previously it was just a misdemeanor to buy or transport a firearm while under a permanent protective order).

Additionally, HB 610 now makes it a felony to stalk someone who holds a protective order against you, or to assault and batter such a person if the assault and battery caused any bodily injury.  Previously it was only a felony of the assault caused "serious bodily injury."

Finally, HB 1087 and SB 323 makes it a felony if you violate a protective order while possessing a firearm (it is typically only a misdemeanor to violate a protective order and there was previously no enhancement for using a firearm while violating one).  While this would seem unnecessarily cumulative with HB 1391 and SB 49, it's actually not, because HB 1087 and SB 323 apply to all protective orders, including preliminary protective orders, emergency protective orders, and non-family abuse protective orders, while HB 1391 and SB 49 apply only to final/permanent family abuse protective orders.

Child and Spousal Support for Support Prisoners

One of the oddities of support law is that the harshest tool the court has available for someone who refuses to pay support is sending them to jail - but sending them to jail will typically prevent them from making any support payments at all.  HB 428 orders any city or county with a prisoner who is in a prison work program to pay between $20 and $40 per week to the Department of Social Services for them to provide as support to the spouse and/or children of the prisoners.  Obviously that's not a whole lot of support, but when you're usually getting nothing, something is still an improvement.

Legal Age for Marriage Changed

In Virginia, the law has been for some time that the legal age for marriage is 18 without parental consent, 16 with parental consent, and, in some circumstances involving pregnancy, can be as young as 14.  However, with the modern awareness that some parents don't always act in their child's best interests, and with an increasing amount of concern about coerced or forced marriage, there has been a growing consensus towards getting rid of "parental consent" marriages that could really be "parental coercion" marriages.  HB 703 now sets a uniform age of marriage in Virginia at 18, and parental consent is no longer involved.  A minor under the age of 18 may petition a court for emancipation in order to get married, in which case a judge must make a series of findings, including that there is no parental coercion (or any other kind of coercion) involved and that the minor is mature enough to make this major decision.

Spousal Support when Divorce Denied

Just a couple months ago, I mentioned that one of the major divorce uh-ohs is not requesting spousal support in your pleadings, and I noted that you should include such a request in all of your initial pleadings, in case one gets struck.  This was based on a case from 2014 where a woman had her complaint for divorce struck when she failed to prove her grounds of divorce, and then the divorce was granted based on her husband's counter-claim, where he did prove his ground.  The woman requested spousal support in her complaint, but not in her answer to the husband's counter-claim, and the husband did not say anything about spousal support in any of his pleadings.  The Court of Appeals held that since the woman failed to prove her grounds of divorce and her complaint was struck, her entire complaint was gone, including the request for spousal support, and she was stuck with nothing.

The General Assembly decided this was unfair and has now enacted SB 71.  SB 71 provides that if a party fails to prove their ground of divorce and their complaint or counter-complaint for divorce gets struck as a result, their request for spousal support still survives.  It's still a best practice to request spousal support in all of your initial pleadings, but if you make the mistake the poor woman in 2014 did, you now have an avenue for relief.

More Spousal Support Changes

Another recent case of some controversy is one from 2013 where a husband was ordered to pay pendente lite spousal support and he did so by using funds that were unquestionably marital funds.  As a result, when it came time for the trial in the case, he had greatly depleted the marital funds available for division, while just tucking away his post-separation earnings to build up a large stockpile of separate money.  The Court of Appeals held that this was acceptable under Virginia Law, and he was in no way obligated to pay the pendente lite support using separate money without a court order saying so.  SB 70 now reverses that equation - a party ordered to pay pendente lite spousal support (or child support) must do so using post-separation earnings unless the court orders otherwise.

Additionally, the factors that are used to determine spousal support have long had an oddity - the law required that the court consider what led to the breakup of the marriage when deciding whether or not to award spousal support at all, but once the decision has been made to award support, then the cause of the breakup of the marriage is not one of the factors the court is to consider when setting the amount and duration of the support award.  Now, practically speaking, these things still got into the factors because they were often treated as either "negative non-monetary contributions to the well-being of the family" or "such other factors" as the court sees proper to consider - two things that are properly part of the statutory factors.  However, HB 668 has now expressly made whatever leads to the breakup of the marriage a factor for the court to consider when setting the amount and duration of spousal support.

Landlords Can't Kick Tenants Out in a Tenant's Assertion

The first time I ever took a tenant's assertion to trial, the landlord's attorney caught me off-guard by trying to turn one of the tenant's tools into a double-edged sword.  My client was seeking relief in the form of a rent abatement, future escrow payments, and other such remedies, but one of the remedies available in a tenant's assertion is the power of the judge to terminate the lease and order possession returned to the landlord.  This is a tool often used by tenants who both want a rent abatement and to just get out of the property because the relationship with the landlord has broken down so badly - but in this case, my client didn't want to leave for many reasons.  The landlord, however, knowing there was still almost a year left on my client's lease, thought my client was too much of a trouble maker (she was suing him, after all) and wanted her out.  In my case, the judge felt this demand was ridiculous - my client was entitled to the services she'd bargained and contracted for - but I later learned that not all judges felt this way, and this was a common tactic of landlords to get rid of troublesome tenants.

HB 1209 and SB 377 finally take this power away from landlords.  The law is now being changed such that the lease termination remedy of a tenant's assertion can only be invoked by the court if it was requested by the tenant and possession can only be ordered returned to a landlord in accordance with an unlawful detainer action.  This is one more step in the very long process to try to equalize the power between landlords and tenants in Virginia courts - although some would say there's still a long way to go.

Conclusion

To me, there's little more exciting than the routine changes in the law I practice.  But it is also my job, not yours, to keep track of these laws.  If you think that your legal situation may have changed because of a change in law, you should consider talking to an attorney.  If your situation is in a field I practice, review my initial consult policy, then call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your consultation.  Our initial consultations are free for up to half an hour!

Virginia and US Supreme Court Vacancy Crises - The Basics

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

Introduction

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

Background on the Virginia Supreme Court Vacancy

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

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

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

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

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

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

Background on the US Supreme Court Vacancy

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

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

Implications of the Vacancies

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

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

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

How I see things playing out

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

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

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

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

3.  Not taking action to protect marital assets.

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

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

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

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

4.  Failed to object to an appealable order.

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

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

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

5.  Ignoring discovery.

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

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

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

Conclusion

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