Virginia Child Support When Custody is Shared - The Basics of the Shared Custody Guidelines

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

The concept of child support is generally easily understood.  Both parents have a legal duty to support their children.  When the parents are married and living together, this is usually simple - you support your children simply by taking care of them.  When you are separated, however, that duty doesn't go away - but it is more complicated to handle.  Child support law seeks to handle that issue by requiring the parent who no longer lives with the child to provide funds to the parent who does live with the child so that parent can better care for the child.  It is assumed that the parent living with the child (the "custodial parent") still performs his or her duties directly.

But what happens when it's not really that easy to say who the child lives with?  When the child in all practical senses lives with both parents?  Each parent has a duty to support the child while he or she is with them and while he or she is with the other parent.  This is where the concept of shared custody child support comes from.  In today's post, I will cover the very basics of how to figure out if you are in a "shared custody" child support situation, and, if so, how to figure out that support level.

History

For most of Virginia history, the concept of "shared custody" was unfamiliar to the law.  Visitation, surprisingly enough, is a fairly modern concept.  In a divorce, one parent got the child (under the English common law and in Virginia, up until the mid to late 1800's, this parent was ALWAYS, without exception, the father - then this shifted to being usually the mother under what was known as the "tender years doctrine" - and then this shifted to the "best interests of the child" test that is used today) and that was that.  Now, once it became the case that the parent getting the child was sometimes the mother, as this was still a time where a woman earning money was rare, the concept of child support was largely born.  Still for most of Virginia law, the award of child support was largely arbitrary - a judge just trying to figure out how much was needed.

Then, largely in response to high poverty rates among single mothers, Congress passed a law in 1984 requiring all states to adopt guidelines.  Virginia finally complied and did so in 1988.  These guidelines set the basics of support, and I covered how they work in my blog post on calculating child support from April of 2014.  However, very quickly an unfairness began to emerge.  Namely, now that visitation is widely available and expansive, what happens if the "non-custodial" parent who had to pay child support nonetheless had the child with him or her for a substantial portion of the year?  Why should you pay support if you have the child for 182 days a year, but receive support if you have the child 183 days?  Wasn't this allowing the parent with more time to get out of supporting the child for a good chunk of the year, while also giving them a windfall?

As a result, in the early 1990's, the concept of shared custody child support was born and finally adopted by the Virginia General Assembly in 1992.  The point?  Come up with a support number that really does recognize that both parents provide their support directly to the child when the child is with him or her, and still requires the parents to provide support to the child while he or she is living with the other parent.

The Basics of How it Works

As with regular "sole" custody child support, the basics for how shared custody works are found in Virginia Code Section 20-108.2.  The shared custody guidelines are used when both parents have the child living with them for at least 90 days a year.  If one parent has the child fewer than 90 days, then the "sole" custody guidelines (covered in my blog post from April, 2014 mentioned before) still apply.

If you are using the shared custody guidelines, you start with the premise that the cost to support the child is higher in a shared custody situation than a sole custody one - after all, they have two homes to be maintained instead of one.  As a result, when you take the parents' combined incomes and calculate the "basic child support need" from the guidelines table in Code Section 20-108.2, you then multiply that number by 1.4.  This gives you the basic child support need for shared custody.

Next, you need to figure out how much support each parent should pay while the child is in the other parent's care.  To do this, you calculate what percentage of the year each parent has the child (called each parent's "custodial share").  Then you calculate the support owed to each parent.  Typically you start with the mother (assuming opposite sex parents, but the same rules apply with same sex parents) by multiplying her custodial share by the total shared support, then adding in her work-related child care costs (if any) and the amount she pays for the child's health insurance (if any).  This gives you the total support the child should receive from both parents while in the mother's care.  Then, you multiply the father's share of the parents' total income by that number to give you how much support the father should be paying the mother while the children are in the mother's care.

Then, you do the same for the father.  Multiply his custodial share by the total shared support, add in his work-related child care costs (if any) and amount he pays for the child's health insurance (if any) and that gives you how much support the child should get from both parents while in the father's care.  You then multiply that number by the mother's income share, and that tells you how much support she should be paying the father while the child is in his care.

Now, of course, it would be silly for both the father to pay the mother child support and the mother to pay the father child support, so instead we take whoever should be paying more and subtract the amount the other parent should be paying from the amount he or she should be paying.  What is left is the amount of support that parent should be paying.

Now, there is a final step here which many people forget about.  The point of shared custody support is to reduce the burden on the child support payor by recognizing that he or she pays a lot of support by directly supporting the child while the child is in that parent's custody.  However, the 1.4 multiplier of total support creates some odd situations (very rarely, but they do happen) where the payor is paying more under the shared support guidelines than he or she would under the sole custody support guidelines.  As a result, the law does say that where sole custody guidelines have the payor paying less than the shared custody guidelines do, then the sole custody guidelines are to be used.  This is a very rare occurrence, however.

A Simple Example

That probably sounds complicated, largely because it is.  As a result, I'll use the same example that I did back in my April of 2014 post - let's assume there is one child, the father makes $7,000 per month and the mother makes $3,000 per month.  Let's also assume the mother has the child 190 days per year and the father has the child for 175 days per year.  Finally, unlike that example, I'll say there is no health insurance, but both parents pay $500 per month in work-related child care.

Plugging these numbers into the guidelines gives you the following - the $10,000 monthly combined income gives a basic support need from the Code of $1,054 per month.  Multiplying that by 1.4 gives us a basic shared guideline support need of $1,476 per month.

Now, the mother has a custody share of 52.1%.  If you take 52.1% of $1,476, that gives you $768 per month in support need while in the mother's custody, and then add the $500 per month in work-related child care, and you now have the child needing total support of $1,268 per month while in the mother's care.  The father's income share is 70%, and 70% of $1,268 is $888, and that is the amount per month is support he should be paying the mother.

Now, for the father, he has a custody share of 47.9%.  Taking 47.9% of $1,476, yields $707 per month in support need while in the father's care.  Add in his $500 per month in work-related child care, and you get the child needing a total of $1,207 per month while in the father's care.  The mother's income share is 30%, so taking 30% of $1,207 yields $362 per month as the amount of support the mother should pay the father.

Next, taking the net of these numbers gives you a final shared custody child support obligation that requires the father to pay the mother $525 per month in child support.

Finally, if we plug these numbers into the sole custody guidelines, we'd see that using those guidelines, the father would owe child support of either $1,088 per month or $938 per month (depending on whether the court allowed him to still use his work-related child care - courts are split on this for sole custody).  Since both of those numbers are well above the shared custody guideline amount, the shared custody number of $525 per month would be the father's child support obligation.

So what is a "day"?

You might think this question is silly, but entire cases have turned on the question of "what is a day."  The Code says that a "day" is a 24 hour period, but then also says that if the parent who has the child overnight less often has the child overnight but for less than a full 24 hours, there "is a presumption" that each parent has the child for one-half a day during that period.

So, as you can imagine a lot of litigation goes into how many "days" each parent has the child.  Note that, generally, if you had the child for 16 hours a day, but the child always went to the other parent's house for an overnight neither of you would technically have any "days" under the Code (since you never have the child for 24 hours and the other parent cannot utilize the half day presumption since they have more overnights).  This means judges actually have a lot of discretion in deciding what a day is, and arguments over fractions of days are common.

How do you figure out the future?

Also inherent to this problem is figuring out the number of days each parent will have the child in the future (since child support is inherently prospective), especially if custody and visitation is not well defined, or the order has a history of being largely disregarded.  The Code requires you figure out the number of days in the year that each parent has the child, and expressly authorizes the judge to choose at his or her own discretion on what date and at what time the "year" used to calculate the days begins.  As a result, if the judge thinks the future is uncertain, he or she might use one year prior to the hearing as the starting date, and look back in the past for that guidance.  If, however, the judge thinks the future will be dramatically different from the past, he or she may choose the date of the hearing and try to predict going forward what it will be.  Usually, where there is no clear cut custody/visitation order, or there have been wide deviations from the order, the judge will look at the past year, but if a new custody/visitation order is being entered simultaneously or one already exists and has been closely followed, the judge will have the date of the hearing be day one and use the custody/visitation order to figure out days.

That all being said, however, neither of those options (the "year" beginning one year prior to the hearing or beginning the day of the hearing) are required, and there are plenty of battles in litigation over when the year should begin.

Conclusion

Every time the legislature encounters general laws that are, at times, unfair, and tries to combat that unfairness by carving out exceptions, it creates new layers of complexity.  The shared guidelines for child support are a perfect example of this.  The General Assembly (reasonably and correctly) concluded that the old guidelines were unfair when custody was near even between the parents, so they took a relatively simple formula and made it dramatically more complicated.  I cannot recommend strongly enough that if you think you might be in a shared custody support situation, you really need to speak with an attorney.  If you're interested in my services, you can call (703)281-0134 to arrange a consultation (please read my initial consultation policy first), or e-mail me at SLeven@thebaldwinlawfirm.com.  Our initial consultations are free for up to half an hour!

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

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

Introduction

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

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

What can cause spousal support to be terminated?

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

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

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

Exceptions to spousal support termination

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

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

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

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

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

How to file the motion

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

Reasons to go to court with self-executing terminations

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

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

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

Conclusion

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

Virginia Parental Placement Adoption - When the Families Find Each Other

As always, before reading this post, please review our 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

There are many situations in which an adoption might occur in Virginia - one of them, a step-parent adopting their step-child, I have previously covered on this blog.  However, when most people think of "adoption" they think of the image you see on TV - a family adopting a baby or child completely unrelated to them biologically.  In Virginia, there are three basic forms of what I call "stranger adoption" - parental placement adoption, agency adoption, and foster care adoption.

Agency adoption is probably what most people think of in an adoption.  This is when an agency, either a public agency (such as the state's Department of Social Services) or a private adoption agency, already has custody of the child and the biological parents' custodial rights have already been terminated, and the adoptive parents apply to adopt a child through the agency.  Foster care adoption is a sub-set of agency adoption where a child has been placed in foster care pending his or her adoption or the termination proceedings against his or her biological parents, and then after at least 18 months in the foster parents' home, the foster parents decide they would like to adopt the child.  Parental placement adoption occurs where the birth parents and the adoptive parents find each other, and arrange an adoption without involvement by the state or any agencies.

In today's blog post, I am going to cover some of the basics of how parental placement adoption works in Virginia.

Pros and Cons of Parental Placement

First off, for any set of adoptive parents, the first decision to make is what method to choose for adopting.  Parental placement has several pros and several cons.  To many, the biggest pro is that parental placement adoption is substantially cheaper than agency adoption.  In Northern Virginia, between legal fees and other costs, you can expect to spend between $8,000 to $15,000 on a parental placement adoption.  An agency adoption, on the other hand, can cost you $20,000 or more.

Another pro of parental placement adoptions is that you know a lot more about where the child is coming from - you are much less likely to end up surprised by a child with severe issues than if you adopt from an agency.  Finally, many adoptive parents prefer parental placement adoptions because it allows them to form a relationship with the biological parent(s), and they know this is something the biological parent(s) have chosen, instead of something that has been forced on them.

There are some cons to consider, however.  Perhaps the biggest is that a so-called "closed" adoption (where the biological parents don't know who adopted their child) is virtually impossible - you may not be required to provide those parents any information, but they may well be able to find you since they know who you are to begin with.  Another con is that, unlike in an agency adoption, when you begin the adoption process with a parental placement adoption, the biological parents have not yet lost their parental rights, and they can withdraw their consent without cause at any time up until 7 days after their parental rights are terminated, at which time they would get to take the child back.  No contract promising to let you adopt is legally enforceable in Virginia, so if they change their mind, there is really nothing you can do about it.  If you are uncertain of the biological parent(s)' level of commitment to the process, those 7 days in particular can be nerve-wracking.

Babies vs. Children

As you might expect, the vast majority of parental placement adoptions involve infants.  Usually the biological parents and adoptive parents have met prior to the baby being born and begun to make arrangements.  As a result, I will be talking in the rest of this post under the assumption that the adoption will be of a new-born infant.  However, it will be fairly obvious when something I say is specifically applicable to the adoption of newborns, and the process is the same whether the child is a newborn or not.

Who Should Have an Attorney

Ideally, all parties (the adoptive parents and each biological parent) should have an attorney to guide them through the process.  The rules are complicated, and I cannot hope to get to all of them in this blog post.  This process would be daunting for anyone to go through unrepresented, but the adoptive parents are likely the ones most in need of representation.

Exchange of Funds

Many people feel, reasonably, that if a child is going to be the child of the adoptive parents, those parents should share in some of the costs of caring for that child prior to the adoption.  However, out of a great deal of fear of a market opening up to "sell" children, the exchange of funds between adoptive and biological parents in a parental placement adoption is heavily regulated.  Adoptive parents can only pay for very specific things (some examples include the biological mother's pregnancy-related medical costs, food for the biological mother to eat when she is no longer able to work due to the pregnancy, and the biological parent(s)' attorney's fees).  Any funds given outside of these allowed amounts can cause an entire adoption to fall through.  It is usually best to work out a contract with the biological parents of what you will pay and how.  This contract will be legally enforceable, and can be provided as evidence to the court if questions are later raised of improper payments.

Home Study and Father's Consent

Generally in a parental placement adoption, the first two formal steps to be taken are a home study and obtaining the biological father's consent to the adoption.  This is because if you are adopting a newborn, these two steps can be completed before the child has even been born.  A home study is a process whereby a certified agency will conduct an evaluation of you, your home, and the biological parents to determine if an adoption is proper.  A parental placement adoption cannot be allowed to proceed unless the court that will eventually handle the adoption is provided with a positive home study report.  Additionally, the biological father can consent to a parental placement adoption by signing a simple affidavit that can be prepared by your attorney at any time prior to the child's birth.  If the biological parents are unmarried, this is particularly convenient, because once ten days have passed after the biological father signs the consent, he cannot take it back, and does not have to be further involved in the process at all.

Taking Custody of the Child

The next step is to actually take custody of the child.  If you are not adopting a newborn, this is simple enough - it literally just involves the biological parent giving you the child, and signing a sort of power of attorney that you can show to the child's doctors and school officials while the adoption is pending to show that you now have the child.  For a newborn, this is a little more complicated, as this involves having the hospital release the child to you.  Some hospitals simply refuse to do this, and make the biological mother take the child out of the hospital and hand the child off to the adoptive parents once they are off hospital grounds.  Most hospitals, however, will let the adoptive parents take the child home as long as the biological mother signs a number of waivers.

Juvenile Court Hearing

On the day the child is born, or the day the adoptive parents take custody of the child, a petition can be filed in the local Juvenile and Domestic Relations District Court to conduct what's called a "birth mother's consent hearing."  The court cannot hold the hearing until the child is at least three days old, but it will usually schedule a hearing for pretty shortly thereafter.  As part of the process, the court will appoint a Guardian ad Litem, an attorney whose job it is to represent the child, to ensure the child's interests are protected.  It will be the adoptive parents' responsibility to pay the Guardian ad Litem.

At the hearing, the court will ask the biological mother a number of questions to ensure that she is really, truly consenting to this adoption, that it was not coerced, and that funds have not been paid improperly.  The court will also review the home study report, the biological father's consent form, and ask for the opinion of the Guardian ad Litem, who by the time of the hearing will have interviewed the adoptive parents and the biological mother (and the child if the child is old enough).  Assuming the Guardian ad Litem approves and no issues occur with the biological mother's testimony, the J&DR Court Judge will then sign an Order which formally grants the adoptive parents legal and physical custody of the child, and terminates the biological parents' parental rights.  The biological mother has 7 days from then to withdraw her consent, and if she does not, the order is effectively final.

Circuit Court Petition

Once those 7 days have passed, the biological parents are no longer part of the process.  Now the adoptive parents can file their Petition for Adoption in the local Circuit Court.  There a judge will review the home study report and the order of the J&DR Court, and if everything is in order, the judge will enter what's called an "Interlocutory Order."  This Order grants the adoption on a probationary basis to the adoptive parents.  Thereafter, the same agency that conducted the home study must conduct three "investigative visits" to the home of the adoptive parents to review how they are handling parenthood of the child.  The three visits must be completed within six months of each other, and in most cases are usually conducted once a month for three months.

Once the agency completes its three investigative visits, it prepares and sends to the court a report on its investigation.  Assuming the report is positive, the Circuit Court then has the power to enter the Final Order of Adoption.  The Final Order of Adoption is the final document making the full adoption official, changing the name of the child (if desired by the adoptive parents), and formally making the child the legal child of the adoptive parents.  Once the Final Order of Adoption has been entered, the adoption is over.  As an added bonus, except in very rare and limited circumstances, once the Final Order of Adoption has been on the books for at least 6 months, its validity cannot be challenged by anyone for any reason.

Beware of Emotional Scammers

Just one note of caution - while you may not be able as adoptive parents to give biological parents much money, that doesn't mean there aren't scams out there.  Some people try to scam others out of funds, but most just do it for attention.  In the adoption world, we refer to these people as "emotional scammers."  They just thrive on the attention they get from the hopeful adoptive parents, and most adoptive parents are too hopeful to catch the warning signs (especially since they aren't being asked for any money).  As you can imagine, this is frequently devastating to an adoptive couple, and I always warn my hopeful adoptive parent clients to tell me if anything ever seems off, and to just try not to get their hopes up until they actually have the child in their custody.

Conclusion

A parental placement adoption is a very rewarding way to adopt a child, but it is also replete with procedural pit-falls.  For example, the manner of obtaining the birth father's consent, or negating your requirement to obtain it, can be different depending on whether the birth father is an assumed, acknowledged, or putative father - and this is just one of the many hurdles faced when people try to tackle this kind of adoption alone.  As a result, if you are interested in pursuing a parental placement adoption, I would strongly encourage you to hire an attorney from the outset.  Our firm handles these types of adoptions, and if you are interested in our services you can feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Spousal Support Myths vs. Reality

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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.

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!

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!

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!