As always, before reading today's blog post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Back in 2014, I did a blog post on the myths vs. the reality of child support law in Virginia. It covered some of the most common misconceptions I routinely encountered regarding child support, and was fairly well received. Nonetheless, I do find myself facing more and more often similar misconceptions regarding spousal support. In today's blog post, I hope to similarly take on some of the most common of those misconceptions I encounter. As with the child support post, the format of this post will be a presentation of a common spousal support myth I encounter, a 1-2 sentence statement of the "reality" then a longer explanation.
Myth: I can figure out what spousal support should be based on a formula.
Reality: There is no accepted formula in Virginia for calculating spousal support, and you would rely on one at your own peril.
Unlike child support, spousal support does not have guidelines. Well, that's not completely true - in J&DR spousal support cases, and in a few local jurisdictions for divorce cases, there are guidelines for setting spousal support pendente lite (temporary support awards that expire when the litigation ends), but there are no guidelines for a final award. Instead, there are a list of factors the judge must consider, and then the judge must come up with a proper award from those factors. Many judges won't even allow "guidelines" to be presented in a spousal support case. As a result, if you've planned your case around "guidelines," you could be in trouble.
Myth: I can change spousal support if there's been a "material change in circumstances."
Reality: A material change of circumstances is sufficient to modify spousal support only if you are subject to an indefinite spousal support award, or you are within the time period of a reservation of spousal support. Otherwise, the situation is complicated.
Child Support, custody, and visitation can all be changed with a material change in circumstances, so it's not surprising that most people think spousal support is the same way. However, as the post I just linked to points out, spousal support is much more complicated.
It's worth noting that once upon a time in Virginia, spousal support could not be modified. Once it was ordered it was in effect for life and could not be changed unless either party died or the person receiving the support re-married. In around the 1920's, the General Assembly stepped in and changed this, but because the "common law" rule is that spousal support can never be modified, the modification rules come purely from statutes.
So, the first question with spousal support is whether or not it can be modified. If spousal support was set by a settlement agreement or contract, it can only be modified if the agreement itself specifically states when and how support can be modified. If the agreement is silent as to modification, then it cannot be modified. If the agreement says it can be modified, then the rules set in the agreement dictate how it is modified.
If spousal support has been set by a court, then it can be modified unless 1) the court ordered defined duration spousal support and the support has now ended, or 2) the court declined to award spousal support at all, and (and this "and" applies to both 1 and 2) the court either A) did not order that there be what's called a "reservation" of spousal support, or B) the court did order a reservation of spousal support, but the reservation time has now passed. So, unless you have either 1 or 2 and either A or B, court ordered spousal support can always be modified.
So, the next step is how is court ordered support modified? Well, if the court ordered indefinite spousal support (as in, no set end date), or if there is no spousal support being paid at the moment but a reservation is in effect, then a material change in circumstances allows a modification. However, where the court ordered defined duration support, and that support is still ongoing, a material change in circumstances is neither necessary nor sufficient to modify support. Instead, the party must show either that 1) something the court thought would happen has not happened (or something the court thought wouldn't happen has happened) through no fault of the party seeking modification, or 2) there's been a material change in circumstances not foreseen by the court when it made its order. So, in that situation, while a material change in circumstances can cause spousal support to be eligible for modification, it is only available to do so when the material change was something the court did not foresee when it made its initial order.
Myth: I'm entitled to be supported sufficiently to live the same lifestyle as I did before the divorce.
Reality: First the court must determine that you are entitled to any spousal support, then, if it does so determine, the court uses a list of factors to set your support, of which your lifestyle prior to divorce is only one. In fact, the most important consideration for the court in setting the amount of support tends to be what you need and what the payor is able to pay.
So, the first thing the court must consider is whether you're entitled to support at all - and your lifestyle prior to the marriage is not really part of that consideration. Instead, the court considers what led to the breakup of your marriage, and, typically, your relative incomes. Then the court when setting the amount and duration of support considers 13 factors laid out in Virginia Code Section 20-107.1(E), of which your lifestyle during the marriage is just one factor. Amongst those factors is not only your current income and expenses, but also your earning capacity - so if the court thinks you are voluntarily underemployed, it might act as though you earn far more than you actually do. Finally, the court considers what you need (including consideration of what your earnings are and/or what they should be) and what the payor can actually pay, then sets support accordingly.
Considering the financial disruption that occurs during a divorce, let me put this bluntly. In my legal career to date, I have never once seen a judge order someone to pay an amount of spousal support that would be sufficient to maintain the other spouse in the "same lifestyle" as they had prior to the separation and divorce. As a result, you would be doing yourself a grave disservice if you come into the case thinking you will receive such an amount of support.
Myth: I should expect spousal support to last about half the duration of the marriage.
Reality: While some judges do like to follow this "rule of thumb," doing so specifically would be contrary to the law, and in fact most cases do not warrant this kind of award. Instead, the most typical consideration for the duration of the award is whether the payee can ever reasonably be expected to be able to solely support him or herself, and if so, how long that will take.
Until just a couple of decades ago, spousal support was always indefinite - as in it had no set end date. Then the General Assembly decided the court should have the option of having what's called "defined duration" support, where there is a set end date, and sure enough, today the vast majority of spousal support awards are defined duration awards. The General Assembly also decided that situations where a spousal support award may not be warranted right away, but might be in the future, should also be addressed, so it created the concept of a "reservation" of spousal support. A reservation basically means no support is awarded right now, but until the reservation expires either party can come back to court and seek spousal support if something changes. The General Assembly also said that, unless "good cause" is shown otherwise, the duration of the reservation should be half the length of the marriage.
You can see where I'm going with this - somewhere along the line people started assuming that the presumed duration of the reservation meant the duration of a defined duration spousal support award also should be half the length of the marriage. Even a number of judges started operating under that assumption. However, the Court of Appeals has repeatedly made clear that this is not a good rule of thumb to operate under. Instead, the trial court must figure out what it expects to happen over time, and that if whatever caused the trial court to think support is warranted right now will likely change, the court should target that date for the end of its defined duration. As a result, the defined duration might be well less than half the length of marriage (I've seen a case, for example, that resulted in one year of spousal support despite a nine year marriage), or it might be well more (I've seen 5 years of support awarded for a marriage that lasted 3 years, and knew an attorney who had a case where indefinite support was awarded for a marriage that lasted 18 months).
Considering that, as I said in the previous section, the most important factors for the court tends to be what the payor can pay and what the payee can (or should) need, the most important factor for the court in figuring out the length of a defined duration support award tends to be figuring out when the payee no longer will (or should) need the support.
Now, the way the length of marriage tends to come into this is that if one spouse, as often happens, stepped back in his or her career to allow the other spouse to thrive in his or hers, then the longer the marriage, the longer that step back lasted and the harder it will be for that spouse to regain their full place in the labor market. This is why someone who's been a housewife or househusband for 30 years is very likely to get indefinite spousal support - because being out of the job market that long makes it very unlikely he or she will ever be able to fully support him or herself on their own. In the meantime, if you only stepped back for two years, it might only take you two years or so of support to recover.
So, all in all, the "half the length of the marriage" rule of thumb, while some judges still follow it, is usually worth forgetting.
Myth: It won't really affect my request for spousal support if I have sex with my significant other after my spouse and I have separated.
Reality: By law, sex with someone other than your spouse is still adultery, even if you are separated, so the statutory bar to spousal support will still apply to you unless you can prove that your different economic circumstances are so substantial as to be able to say failing to award you spousal support would be a miscarriage of justice.
I recently covered in this blog the topic of spousal support and adultery. Specifically that adultery bars the adulterer from receiving spousal support unless applying the bar would be a "manifest injustice." Nonetheless, I repeatedly encounter the misconception that once you are separated, it's no longer adultery. That just isn't true. Until you are divorced, you are still legally married, and sex with anyone else is adultery. As a result, even if that sex happens after you are separated, you are still subject to the statutory bar to spousal support.
Now realistically speaking, the fact that the adultery happened post-separation does strengthen your manifest injustice case. This is because the manifest injustice calculation considers both the "degrees of fault" in the divorce and the "relative economic circumstances" of the parties. So, if your adultery occurred post-separation, then it cannot be part of the "degrees of fault" calculation. But nonetheless, any other thing you did to contribute to your divorce would still be considered. The reality is, the manifest injustice exception was designed to apply to only the smallest sliver of cases where you might expect the party seeking support to be rendered destitute if they are not supported. The likelihood that any given case will qualify for that exception is low, and the fact that your adultery occurred post-separation does not particularly increase those odds.
Conclusion
This post represents just some of the many misconceptions I encounter every day in spousal support cases. If you are involved in a spousal support case, I would strongly encourage you to hire an attorney to help you work through all the misconceptions you may have. If you are interested in my services, and have read my initial consultation policy, you can reach out to me by e-mail at SLeven@thebaldwinlawfirm.com, or by phone at (703)281-0134. Our initial consultations are free for up to half an hour!
Friday, May 20, 2016
Friday, May 6, 2016
Classic Law is Your Friend: Virginia Child Custody and Relocation Law
Whenever I see legal issues come up in "pop culture" - such as in popular TV shows - it always catches my attention. Especially if it's in a field that I practice. I will admit, when things are covered in a manner that I find incomplete or flawed, I feel fairly compelled to act to "correct the record" with a blog post. That's how I've felt about the last few weeks watching family law matters be handled with extreme inaccuracy on the TV show Grey's Anatomy. I understand the need for dramatic license, but there's a point of it going too far...
Anyways, to cut a long story short, the custody dispute that wrapped up in yesterday's episode had my attention because it involved relocation law, but almost no relocation law principles were discussed. As I told a friend, in the real world, the case wouldn't have even been close. So, in order to satiate my desire to "correct the record" to the world, I've decided to go ahead and make today's blog post a "classic" post and to re-post my piece on relocation law, originally published on July 18, 2013 and titled "You Can't Take the Kids and Run - Relocation and Child Custody" with some minor edits.
As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent's visitation will not have to be altered at all, then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved barring some other extraordinary circumstance. You should also be prepared to take on the burden of any additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
Anyways, to cut a long story short, the custody dispute that wrapped up in yesterday's episode had my attention because it involved relocation law, but almost no relocation law principles were discussed. As I told a friend, in the real world, the case wouldn't have even been close. So, in order to satiate my desire to "correct the record" to the world, I've decided to go ahead and make today's blog post a "classic" post and to re-post my piece on relocation law, originally published on July 18, 2013 and titled "You Can't Take the Kids and Run - Relocation and Child Custody" with some minor edits.
As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, almost all of us will move during our adult lives. In fact, we may move frequently. For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done. For people with children who do not live with the child’s other parents, however, it can quickly devolve into a nightmare.
There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state. This is, in fact, considered a “fundamental” constitutional right. In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.” So, if you have custody of your child, the other parent absolutely cannot prevent you from moving. But, the other parent can prevent you from bringing your child with you, and therein lies the problem.
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation. If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation (assuming the custodial parent did, in fact, give the mandated notice properly and the proper amount of time in advance). When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation. That’s where the “fun” starts.
Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation).
Of course, the question is “burden to prove what?” The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights. Instead, we have a mishmash of rules. The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation. However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless - but note that to prove this, the relocating parent needs to prove the that the move itself independently benefits the child. It's not enough to show that the move would benefit the parent and that benefit would then rub off on the child, or that the relocating parent is the better fit for the child - it must be proven the child will be better off in the new location than the old location despite any harm to that child's relationship with the other parent.
Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.
Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent's visitation will not have to be altered at all, then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved barring some other extraordinary circumstance. You should also be prepared to take on the burden of any additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
If your relocation was approved but it becomes clear that the visitation arrangements are no longer working, then you can file a motion to modify visitation. This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
Friday, April 22, 2016
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!
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!
Friday, April 8, 2016
A Primer on Virginia Law Regarding Adultery and Spousal Support
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I had a divorce case once where the trial judge, prior to issuing his ruling, noted that in his experience, almost every divorce was fundamentally about either sex or money (or both). My experience has been a little more nuanced - and I've seen a large number of cases that were not about sex or money but really about control and abuse - but the judge's observation was not a complete misrepresentation. Of course, when a divorce is primarily about sex, it's usually "sex with someone who's not your spouse."
I've generally stayed away from adultery on this blog because, frankly, it doesn't play the important role in the law regarding divorce that it did 40 or 50 years ago. The one post I did do about two years ago was not really about the law regarding adultery and divorce, but rather about how you prove adultery has occurred. I did, however, in that post make a brief reference to several ways adultery can impact a divorce case, including noting that "the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this)." A new Court of Appeals opinion this week, however, has led me to believe it's time to expand on that brief note.
In today's blog post, I will offer a brief primer on the interplay of adultery and spousal support in Virginia law.
What the Law Says
So, for an issue like this, it's worth looking at what the law actually says. The relevant law can be found at Virginia Code Section 20-107.1(B). It reads:
"Any maintenance and support shall be subject to the provisions of sec. 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A(1) of sec. 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties."
So, that's a mouthful! First of all, ignore the first part of the first sentence - if you follow the links you'll see that's just referring to a provision of law that says how spousal support can be modified. Additionally, if you follow the link to section 20-91(A)(1), that's just the section of law that states that adultery is a ground of divorce. Finally, note that this provision requires only that an adultery ground of divorce "exists in such spouse's favor" - it does not require that adultery actually be the basis on which the divorce is awarded - or even that the non-cheating spouse seek a divorce based on adultery.
So, the "plain English" (or as close to it as I can get) is this - "No permanent spousal support can be awarded to a spouse who has committed adultery, unless it can be proven by clear and convincing evidence that failing to award support would be a manifest injustice, considering the relative degrees of fault during the marriage and the relative economic circumstances of the parties."
So, let me break down each part of this a bit further.
"No permanent spousal support..."
So, what does "no permanent spousal support" mean? If you weren't aware of the nuances of the law, you might think that this applies to awards of spousal support "for life" and not to awards of spousal support for a "defined duration" (as in, saying from the outset support will be for five years - for more on defined duration vs. indefinite spousal support, see my general blog post on spousal support). You would be incorrect, however.
A "permanent" spousal support award only means that this is the permanent, final award of the court, as opposed to a "temporary" spousal support award issued at a pendente lite hearing held while the case was pending. If the law were referring to spousal support without a set end date, it would use the legal terms of art of spousal support of an "indefinite" or "undefined" duration. As a result, this provision of law applies to all final spousal support awards, regardless of duration, and the Court of Appeals has held that this even applies to simple reservations of spousal support (a provision of law that allows the court to decline to award spousal support at this time, but reserve for a party the right to request it again later).
Now, you'll also notice something critical - if this provision applies to final (permanent) spousal support orders, you might think it does not apply to the temporary pendente lite orders. This is correct - courts very often award pendente lite spousal support, even when there are accusations of adultery. If those accusations are later proven, the trial court can order the adulterous support payee to pay back some or all of the support received pendente lite, but the Court of Appeals has held that the trial court is not required to order that any of it be paid back.
"... clear and convincing evidence..."
In order to qualify for the exception to the rule barring spousal support for an adulterous spouse, you must prove that you are eligible for that exception by "clear and convincing evidence." Clear and convincing evidence is probably the vaguest standard of proof we have in law. It is more than a "preponderance of the evidence" (which requires only that a circumstance be shown to be more likely to have occurred than not to have occurred), and less than "beyond a reasonable doubt" (where the proof is so strong that the only doubts of the circumstance having occurred would be ridiculous). The best explanation I've ever heard given for it is that something meets this standard "when, rather than just thinking 'yeah, it probably happened,' you find yourself thinking 'yes, I am convinced that it did happen' even if you have a few lingering doubts."
The "official" Virginia definition of clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established."
And that's about as good a job I can do for it. "Clear and convincing evidence" is almost always defined primarily simply as "more than a preponderance, less than beyond a reasonable doubt." I've heard others say it requires being "about 75% certain" (as opposed to 50.1% for preponderance or 95% for beyond a reasonable doubt). That does seem about right.
I do feel compelled to point out the interesting dichotomy here, though - while you are required to prove your eligibility for the exception by clear and convincing evidence, the party alleging adultery also must prove that adultery occurred by clear and convincing evidence.
"... manifest injustice..."
While it may not sound like it, "manifest injustice" is actually also a legal term of art. In Virginia, the term "manifest injustice" is considered synonymous with "miscarriage of justice." In other words, it must be something so outrageous that, if allowed to stand, would shake people's faith in the justice system itself or strike the average person as severely unfair. An example of something considered a "manifest injustice" in other areas of law in Virginia would be when a plaintiff files a lawsuit within the applicable statute of limitations period, but while his lawsuit is pending the law is changed to shorten the statute of limitations period such that now the time within which he filed would have been outside the limitations period. This has happened several time in Virginia, and each time the courts have routinely used a provision of Virginia law that allows them to refuse to apply new laws to already pending cases when doing so would result in a "miscarriage of justice."
"... relative degrees of fault..."
This is exactly what it sounds like - if the adultery was the primary reason the marriage fell apart, then the "relative degrees of fault" tilts heavily against the adulterous spouse. If, however, there was much more going on, then this balance can change. For example, in one case, the Court of Appeals upheld a manifest injustice finding where it was determined that the non-cheating spouse had nonetheless spent 20 years harassing, belittling, and abusing (both physically and emotionally) the cheating spouse. Other situations have come up where both spouses were engaged in adultery - especially if the one seeking spousal support was not the first one to do it.
"... relative economic circumstances..."
This is the other part of the manifest injustice inquiry - the parties' relative economic circumstances. The Court of Appeals has recognized that one of the main purposes of the exception in the law is to ensure that an instance of adultery does not leave a spouse destitute. Economic circumstances are more than mere income differences, however - assets must also be considered. In the Court of Appeals decision rendered this week (the case is called Mundy v. Mundy), the Court reversed a trial court finding of manifest injustice. The trial court's finding was based on the fact that the husband earned more than $850,000 per year, while the wife (the one who had repeatedly committed adultery) earned nothing and only had an earning capacity of about $30,000 per year. The Court of Appeals noted that while that income differential was clearly out of balance, the wife was receiving as part of the property settlement in the case, assets and money worth more than $1.8 million. The Court of Appeals noted that it could hardly be said to be a manifest injustice not to award spousal support to a "millionaire adulteress."
The most important word in the whole passage: "... and..."
The Court of Appeals has, time and time again, noted how critical it is for parties and trial judges to remember that the Code uses the word "and." As in, manifest injustice is shown considering both the relative degrees of fault of the parties and their relative economic circumstances. As in the two must be considered together.
This can be both a benefit and a detriment to the adulterous spouse seeking support. This can be a benefit because if both of those factors tilt in that spouse's favor, but neither on their own would be a "manifest injustice," the two combined might be. It could go against that spouse, however, because perhaps one of those factors on its own would constitute a manifest injustice, but then the other is tilted so strongly the other way that the two combined don't meet the standard.
An example of the first might be an assettless spouse who earns about a third of what his or her spouse does but this spouse had only committed adultery once and the potential payor had committed adultery first and multiple times. Neither would likely be considered a "manifest injustice" on their own, but the two combined very well might.
An example of the second issue, however, could be an assetless spouse with no income and no real earning potential seeking spousal support from a millionaire spouse, but where the millionaire spouse was pretty much a model spouse, while the one seeking the support had engaged in multiple adulterous affairs for years while also physically abusing the non-cheating spouse. The economic differences on their own would likely be considered a "manifest injustice," but work in the misdeeds of the cheating spouse, and it probably won't be.
Affirmative Defenses
Now, if your spouse has committed adultery and wants spousal support, but you don't think your spouse will qualify for the statutory exception, you're not necessarily out of the woods yet. Adultery has several affirmative defenses (for more about affirmative defenses, see my post on the subject), and if any of those apply, then the bar to spousal support will not apply. The two most important (primarily because they are the most common) are the defenses of "connivance" and "condonation." Connivance is a defense that states that the adultery essentially occurred as a result of your own intentional doing. This is not "you stopped having sex with your spouse so that made it ok for your spouse to have sex with other people" rather this is "you intentionally sought to have them have sex with other people." Common situations where this occurs are so-called "open marriages" where the spouses agree in advance that they can have sex with other people, sex with your spouse involving one or more additional people at the same time, or (sadly, yes, this occurs) situations where your spouse tricks you into having sex with someone else (though it's also worth noting that "adultery" itself requires that the sex be consensual, so a non-consensual encounter like this or any other form of rape cannot be used as the basis for an adultery finding).
"Condonation" could also be called "forgiveness." This is where you learn of your spouse's adultery after the fact and either a) approve of it, or b) forgive it. Condonation can be both express or implied - if you expressly forgive your spouse, condonation obviously applies, but even if you just imply that you have forgiven your spouse (even if was not your intention to do so) it still applies. The most often time that I see "implied condonation" is when a spouse learns of his or her spouse's adultery, but then still lives with and has sex with his or her spouse afterwards.
If connivance or condonation is proven, then spousal support can still be awarded to an adulterous spouse. Note, however, the connivance or condonation can only apply to sex that is reasonably contemplated by the connivance or condonation. For example, if there's an act of express or implied condonation, the non-cheating spouse cannot then use against the cheating spouse the adultery the non-cheating spouse knew of at the time, but the non-cheating spouse can still rely on adulterous acts the non-cheating spouse was not aware of at the time, or which occurred after the express or implied condonation.
What about adultery by the payor?
You might notice that this post talks almost exclusively about adultery committed by the party seeking spousal support. You might be thinking "what about the party potentially paying spousal support?" Well, in those cases, it's a bit more complicated. There's no statutory bar involved (except that they also would not be able to receive spousal support), but it is still relevant. In addition to being a consideration in the manifest injustice analysis, it would also be considered a "negative nonmonetary contribution to the well-being of the family" when the court considers the statutory factors in figuring out how much support to award and for how long. Nonetheless, adultery definitely does not have nearly as dramatic an effect on the potential payor of spousal support as it does on the potential payee.
Conclusion
Adultery is a complicated area of family law, but when it comes to spousal support, it has some critical implications. If you are involved in a spousal support case which includes allegations of adultery, you would best be served by speaking with an attorney. I, and other attorneys at my firm, routinely handle these matters, and you can contact us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
I had a divorce case once where the trial judge, prior to issuing his ruling, noted that in his experience, almost every divorce was fundamentally about either sex or money (or both). My experience has been a little more nuanced - and I've seen a large number of cases that were not about sex or money but really about control and abuse - but the judge's observation was not a complete misrepresentation. Of course, when a divorce is primarily about sex, it's usually "sex with someone who's not your spouse."
I've generally stayed away from adultery on this blog because, frankly, it doesn't play the important role in the law regarding divorce that it did 40 or 50 years ago. The one post I did do about two years ago was not really about the law regarding adultery and divorce, but rather about how you prove adultery has occurred. I did, however, in that post make a brief reference to several ways adultery can impact a divorce case, including noting that "the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this)." A new Court of Appeals opinion this week, however, has led me to believe it's time to expand on that brief note.
In today's blog post, I will offer a brief primer on the interplay of adultery and spousal support in Virginia law.
What the Law Says
So, for an issue like this, it's worth looking at what the law actually says. The relevant law can be found at Virginia Code Section 20-107.1(B). It reads:
"Any maintenance and support shall be subject to the provisions of sec. 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A(1) of sec. 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties."
So, that's a mouthful! First of all, ignore the first part of the first sentence - if you follow the links you'll see that's just referring to a provision of law that says how spousal support can be modified. Additionally, if you follow the link to section 20-91(A)(1), that's just the section of law that states that adultery is a ground of divorce. Finally, note that this provision requires only that an adultery ground of divorce "exists in such spouse's favor" - it does not require that adultery actually be the basis on which the divorce is awarded - or even that the non-cheating spouse seek a divorce based on adultery.
So, the "plain English" (or as close to it as I can get) is this - "No permanent spousal support can be awarded to a spouse who has committed adultery, unless it can be proven by clear and convincing evidence that failing to award support would be a manifest injustice, considering the relative degrees of fault during the marriage and the relative economic circumstances of the parties."
So, let me break down each part of this a bit further.
"No permanent spousal support..."
So, what does "no permanent spousal support" mean? If you weren't aware of the nuances of the law, you might think that this applies to awards of spousal support "for life" and not to awards of spousal support for a "defined duration" (as in, saying from the outset support will be for five years - for more on defined duration vs. indefinite spousal support, see my general blog post on spousal support). You would be incorrect, however.
A "permanent" spousal support award only means that this is the permanent, final award of the court, as opposed to a "temporary" spousal support award issued at a pendente lite hearing held while the case was pending. If the law were referring to spousal support without a set end date, it would use the legal terms of art of spousal support of an "indefinite" or "undefined" duration. As a result, this provision of law applies to all final spousal support awards, regardless of duration, and the Court of Appeals has held that this even applies to simple reservations of spousal support (a provision of law that allows the court to decline to award spousal support at this time, but reserve for a party the right to request it again later).
Now, you'll also notice something critical - if this provision applies to final (permanent) spousal support orders, you might think it does not apply to the temporary pendente lite orders. This is correct - courts very often award pendente lite spousal support, even when there are accusations of adultery. If those accusations are later proven, the trial court can order the adulterous support payee to pay back some or all of the support received pendente lite, but the Court of Appeals has held that the trial court is not required to order that any of it be paid back.
"... clear and convincing evidence..."
In order to qualify for the exception to the rule barring spousal support for an adulterous spouse, you must prove that you are eligible for that exception by "clear and convincing evidence." Clear and convincing evidence is probably the vaguest standard of proof we have in law. It is more than a "preponderance of the evidence" (which requires only that a circumstance be shown to be more likely to have occurred than not to have occurred), and less than "beyond a reasonable doubt" (where the proof is so strong that the only doubts of the circumstance having occurred would be ridiculous). The best explanation I've ever heard given for it is that something meets this standard "when, rather than just thinking 'yeah, it probably happened,' you find yourself thinking 'yes, I am convinced that it did happen' even if you have a few lingering doubts."
The "official" Virginia definition of clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established."
And that's about as good a job I can do for it. "Clear and convincing evidence" is almost always defined primarily simply as "more than a preponderance, less than beyond a reasonable doubt." I've heard others say it requires being "about 75% certain" (as opposed to 50.1% for preponderance or 95% for beyond a reasonable doubt). That does seem about right.
I do feel compelled to point out the interesting dichotomy here, though - while you are required to prove your eligibility for the exception by clear and convincing evidence, the party alleging adultery also must prove that adultery occurred by clear and convincing evidence.
"... manifest injustice..."
While it may not sound like it, "manifest injustice" is actually also a legal term of art. In Virginia, the term "manifest injustice" is considered synonymous with "miscarriage of justice." In other words, it must be something so outrageous that, if allowed to stand, would shake people's faith in the justice system itself or strike the average person as severely unfair. An example of something considered a "manifest injustice" in other areas of law in Virginia would be when a plaintiff files a lawsuit within the applicable statute of limitations period, but while his lawsuit is pending the law is changed to shorten the statute of limitations period such that now the time within which he filed would have been outside the limitations period. This has happened several time in Virginia, and each time the courts have routinely used a provision of Virginia law that allows them to refuse to apply new laws to already pending cases when doing so would result in a "miscarriage of justice."
"... relative degrees of fault..."
This is exactly what it sounds like - if the adultery was the primary reason the marriage fell apart, then the "relative degrees of fault" tilts heavily against the adulterous spouse. If, however, there was much more going on, then this balance can change. For example, in one case, the Court of Appeals upheld a manifest injustice finding where it was determined that the non-cheating spouse had nonetheless spent 20 years harassing, belittling, and abusing (both physically and emotionally) the cheating spouse. Other situations have come up where both spouses were engaged in adultery - especially if the one seeking spousal support was not the first one to do it.
"... relative economic circumstances..."
This is the other part of the manifest injustice inquiry - the parties' relative economic circumstances. The Court of Appeals has recognized that one of the main purposes of the exception in the law is to ensure that an instance of adultery does not leave a spouse destitute. Economic circumstances are more than mere income differences, however - assets must also be considered. In the Court of Appeals decision rendered this week (the case is called Mundy v. Mundy), the Court reversed a trial court finding of manifest injustice. The trial court's finding was based on the fact that the husband earned more than $850,000 per year, while the wife (the one who had repeatedly committed adultery) earned nothing and only had an earning capacity of about $30,000 per year. The Court of Appeals noted that while that income differential was clearly out of balance, the wife was receiving as part of the property settlement in the case, assets and money worth more than $1.8 million. The Court of Appeals noted that it could hardly be said to be a manifest injustice not to award spousal support to a "millionaire adulteress."
The most important word in the whole passage: "... and..."
The Court of Appeals has, time and time again, noted how critical it is for parties and trial judges to remember that the Code uses the word "and." As in, manifest injustice is shown considering both the relative degrees of fault of the parties and their relative economic circumstances. As in the two must be considered together.
This can be both a benefit and a detriment to the adulterous spouse seeking support. This can be a benefit because if both of those factors tilt in that spouse's favor, but neither on their own would be a "manifest injustice," the two combined might be. It could go against that spouse, however, because perhaps one of those factors on its own would constitute a manifest injustice, but then the other is tilted so strongly the other way that the two combined don't meet the standard.
An example of the first might be an assettless spouse who earns about a third of what his or her spouse does but this spouse had only committed adultery once and the potential payor had committed adultery first and multiple times. Neither would likely be considered a "manifest injustice" on their own, but the two combined very well might.
An example of the second issue, however, could be an assetless spouse with no income and no real earning potential seeking spousal support from a millionaire spouse, but where the millionaire spouse was pretty much a model spouse, while the one seeking the support had engaged in multiple adulterous affairs for years while also physically abusing the non-cheating spouse. The economic differences on their own would likely be considered a "manifest injustice," but work in the misdeeds of the cheating spouse, and it probably won't be.
Affirmative Defenses
Now, if your spouse has committed adultery and wants spousal support, but you don't think your spouse will qualify for the statutory exception, you're not necessarily out of the woods yet. Adultery has several affirmative defenses (for more about affirmative defenses, see my post on the subject), and if any of those apply, then the bar to spousal support will not apply. The two most important (primarily because they are the most common) are the defenses of "connivance" and "condonation." Connivance is a defense that states that the adultery essentially occurred as a result of your own intentional doing. This is not "you stopped having sex with your spouse so that made it ok for your spouse to have sex with other people" rather this is "you intentionally sought to have them have sex with other people." Common situations where this occurs are so-called "open marriages" where the spouses agree in advance that they can have sex with other people, sex with your spouse involving one or more additional people at the same time, or (sadly, yes, this occurs) situations where your spouse tricks you into having sex with someone else (though it's also worth noting that "adultery" itself requires that the sex be consensual, so a non-consensual encounter like this or any other form of rape cannot be used as the basis for an adultery finding).
"Condonation" could also be called "forgiveness." This is where you learn of your spouse's adultery after the fact and either a) approve of it, or b) forgive it. Condonation can be both express or implied - if you expressly forgive your spouse, condonation obviously applies, but even if you just imply that you have forgiven your spouse (even if was not your intention to do so) it still applies. The most often time that I see "implied condonation" is when a spouse learns of his or her spouse's adultery, but then still lives with and has sex with his or her spouse afterwards.
If connivance or condonation is proven, then spousal support can still be awarded to an adulterous spouse. Note, however, the connivance or condonation can only apply to sex that is reasonably contemplated by the connivance or condonation. For example, if there's an act of express or implied condonation, the non-cheating spouse cannot then use against the cheating spouse the adultery the non-cheating spouse knew of at the time, but the non-cheating spouse can still rely on adulterous acts the non-cheating spouse was not aware of at the time, or which occurred after the express or implied condonation.
What about adultery by the payor?
You might notice that this post talks almost exclusively about adultery committed by the party seeking spousal support. You might be thinking "what about the party potentially paying spousal support?" Well, in those cases, it's a bit more complicated. There's no statutory bar involved (except that they also would not be able to receive spousal support), but it is still relevant. In addition to being a consideration in the manifest injustice analysis, it would also be considered a "negative nonmonetary contribution to the well-being of the family" when the court considers the statutory factors in figuring out how much support to award and for how long. Nonetheless, adultery definitely does not have nearly as dramatic an effect on the potential payor of spousal support as it does on the potential payee.
Conclusion
Adultery is a complicated area of family law, but when it comes to spousal support, it has some critical implications. If you are involved in a spousal support case which includes allegations of adultery, you would best be served by speaking with an attorney. I, and other attorneys at my firm, routinely handle these matters, and you can contact us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Friday, March 25, 2016
Classic Law is Your Friend: Virginia Child Custody and Relocation Law
I have been out of work for the last couple of weeks due to paternity leave, and will still be another couple of weeks before I return. This has also rendered me unable to devote the time needed to a good blog post. Rather than keep leaving this blog blank, however, I decided to go ahead and re-post a "classic" post - this one being my primer on the law surrounding relocating when you have primary physical custody of a child.
This post was original posted on July 18, 2013, and titled "You Can't Take the Kids and Run - Relocation and Child Custody" and is reproduced in full below with a couple minor edits to take into account any updates in the law (and personal changes in my writing style) over the past three years.
As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule that I have told clients (and as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will be able to keep the exact same visitation schedule (or, alternatively, the exact same amount of time with the child with only minor tweaks to the visitation schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. This is why in my experience, the vast majority of contested relocations of less than, say, 30 miles are approved, while the majority of such relocations of more than about 200 miles are rejected. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
This post was original posted on July 18, 2013, and titled "You Can't Take the Kids and Run - Relocation and Child Custody" and is reproduced in full below with a couple minor edits to take into account any updates in the law (and personal changes in my writing style) over the past three years.
As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
The reality is that, unless you are a particularly stubborn
person, or a person who managed to find, and could afford, your dream house
right out of college, you will move during your adult life. In fact, you may move frequently. For most people, this is not a big deal -
sure, it may be inconvenient, but a few days of packing, a day or two of actual
moving, a few days of unpacking and it’s done.
For people with children with court ordered custody and visitation arrangements,
however, it can quickly devolve into a nightmare.
There has long been recognized in the United States a right
to travel and move freely within the United States - not only within your own
state, but from state to state. This is,
in fact, considered a “fundamental” constitutional right. In other words, a constitutional right that is
so basic, it cannot be infringed upon by the government without the government
meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein
the government must prove that its actions are “narrowly tailored” (as in, this
is the least restrictive approach possible) to resolve a “compelling government
interest.” So, if you have custody of
your child, the other parent absolutely cannot prevent you from moving. But, the other parent can prevent you from bringing your child with you, and therein lies
the problem.
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
A typical relocation case begins with the custodial parent
giving the court and the non-custodial parent the mandatory 30 days’ advance
notice of the relocation. If the
non-custodial parent does nothing, the relocation happens, and any new case
involving custody and visitation will treat the relocation as given and the
non-custodial parent as essentially having forfeited his or her right to object
to the relocation. When a disputed
relocation case arises, it happens when the non-custodial parent during that 30
day window files a motion to enjoin the relocation. That’s where the “fun” starts.
Despite the fact that the case is initiated with a motion
filed by the non-custodial parent, the burden of proof in a relocation case is
actually on the custodial/relocating parent (as a note, I will continue to
treat the relocating parent and custodial parent as interchangeable in this
case because it is practically unheard of for there to be a contested
relocation involving the non-custodial parent moving - at worst, there will
just be a motion to alter that parent’s visitation).
Of course, the question is “burden to prove what?” The answer to that question, unfortunately,
is that the Virginia courts still have not sorted this out, and unlike many
other states, the Virginia legislature has not passed a law giving the courts
guidelines for determining relocation rights.
Instead, we have a mishmash of rules.
The custodial parent must prove that the non-custodial parent’s
relationship with the child will not be harmed by the relocation. However, if the custodial parent fails to
prove that, but the custodial parent succeeds in proving that the relocation
would be in the child’s best interest anyways, then the relocation may be
approved regardless. Note, however, that in order to meet this test, the custodial parent must prove that the child derives a benefit independent of any benefit to the custodial parent from the move (so, the fact that in the new location the custodial parent would earn more money and thus be able to provide more for the child is actually not a sufficient reason to grant a relocation). Further, if the
custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health,
etc.) remain at the custodial parent’s current location and cannot move to a location that is closer
than the proposed relocation point, then the court must do a whole different
analysis of whether the child’s best interest is custody with the custodial
parent at the new location or with the non-custodial parent. However, as you can probably imagine, proving that it is actually impossible to stay where you are or move somewhere closer to the other parent is extremely difficult.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule that I have told clients (and as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will be able to keep the exact same visitation schedule (or, alternatively, the exact same amount of time with the child with only minor tweaks to the visitation schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. This is why in my experience, the vast majority of contested relocations of less than, say, 30 miles are approved, while the majority of such relocations of more than about 200 miles are rejected. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
If your relocation was approved but it becomes clear that
the visitation arrangements you made to ensure the non-custodial parent got the
same amount of time with the child isn’t working, then you can file a motion to
modify visitation. This is because the
fact that visitation arrangements do not work as planned is usually considered
a “material change in circumstances” that warrants re-consideration.
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
Friday, February 26, 2016
More Virginia Divorce Uh-Ohs: 3 More Big Legal Mistakes You Can Make in a Divorce
As always, before reading my 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.
Introduction
About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces. I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is. It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often. Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.
1. Failing to request spousal support in your pleadings
If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality? The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.
It is a basic rule in law that in court, you cannot get what you do not ask for. Moreover, the way that you ask for something is in a written document called a "pleading." "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint." When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial. As a result, in order to get something at trial, you must have asked for it in your initiating pleading.
In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support. As a result, spousal support must be specifically requested. If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is. As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).
Fortunately, if you fail to do this, you will likely be able to correct it. Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings. Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away). I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue). Nonetheless, if you discover you have this issue, you should move to fix it ASAP.
2. Failing to request a determination of spousal support when there is a J&DR Order
This issue is related to the first, but on the flip side. The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court. Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.
Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite. It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce). Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce. For more about J&DR spousal support, see my blog post on spousal support.
Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order. In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order. If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.
Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order. Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown. So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time. Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.
3. Failing to include provisions in a written order
For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders. Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it. This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.
This also sometimes creates problems for parties that are caught unaware. Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders." In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down. I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it. The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.
Now, there is a way to fix this. If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision. Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision. Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling. Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.
Conclusion
Not all mistakes are immediately fatal in a divorce. Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time. Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce. If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Introduction
About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces. I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is. It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often. Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.
1. Failing to request spousal support in your pleadings
If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality? The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.
It is a basic rule in law that in court, you cannot get what you do not ask for. Moreover, the way that you ask for something is in a written document called a "pleading." "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint." When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial. As a result, in order to get something at trial, you must have asked for it in your initiating pleading.
In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support. As a result, spousal support must be specifically requested. If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is. As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).
Fortunately, if you fail to do this, you will likely be able to correct it. Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings. Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away). I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue). Nonetheless, if you discover you have this issue, you should move to fix it ASAP.
2. Failing to request a determination of spousal support when there is a J&DR Order
This issue is related to the first, but on the flip side. The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court. Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.
Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite. It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce). Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce. For more about J&DR spousal support, see my blog post on spousal support.
Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order. In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order. If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.
Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order. Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown. So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time. Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.
3. Failing to include provisions in a written order
For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders. Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it. This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.
This also sometimes creates problems for parties that are caught unaware. Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders." In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down. I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it. The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.
Now, there is a way to fix this. If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision. Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision. Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling. Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.
Conclusion
Not all mistakes are immediately fatal in a divorce. Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time. Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce. If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Wednesday, February 17, 2016
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.
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.
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