Planning for the Worst - Pre-marital Agreements and the Law

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

Introduction

The unfortunate reality of today's world is that nearly half of all marriages end in divorce (the percentage has been on a downswing lately, but it's still well north of 40%).  While it may not be what you want to think about when you are beginning your married life with someone you full well believe will be your partner the rest of your life, understanding the high probability of divorce may allow you to protect yourself.  If you have substantial assets, anticipate a substantial difference in income, or really have any long term concerns about your marriage, a pre-marital agreement (colloquially known as a "prenup" or "prenuptial agreement") may be the right path for you.

Pre-marital agreements are recognized to some extent or another in all 50 states.  That being said, there are limitations on pre-marital agreements, and important rules that need to be followed.

Law Governing Pre-Marital Agreements

For a long time there was a great deal of confusion in Virginia about how a court should treat pre-marital agreements.  Should they be treated just as a contract, subject to all contractual defenses?  As a result, should a prenup still be applicable if the marriage lasts a prolonged period?  What about if the prenup turns out to be horribly unfair to one party or the other?

Conflicts in the courts over how to treat pre-marital agreements led to Virginia adopting in the 1980's the Premarital Agreement Act, which is codified in Virginia Code Sections 20-147 through 20-155, and remains largely unchanged from its original enactment.  The law chose a hybrid approach to pre-marital agreements, treating them as not entirely contractual and subject to all contract rules, but not entirely immune from contract laws either.  Moreover, the law specifically prescribes what can be covered by a pre-marital agreement, creating the legal presumption that if something is not covered by the Premarital Agreement Act, then it cannot be covered by a Premarital Agreement.

Matters a Premarital Agreement Can Address

The list of matters that a premarital agreement can cover is contained in Virginia Code Section 20-150.  The list includes property rights, spousal support (alimony), wills and trusts, life insurance rights, choice of law, and any other matter "not in violation of public policy or a statute imposing a criminal penalty."

So, that last provision may sound like a catch-all, but it's really not.  The courts have construed this provision, in light of the nature of other provisions in the section, to still limit premarital agreements to essentially issues of property and money.

So, what does this mean a premarital agreement can do?  Well, it can say how any property either of you brings into the marriage will be dealt with, regardless of whether the other does anything with the property during the marriage.  It can say how property acquired during the marriage will be dealt with.  It can say how much spousal support either party may get in the case of a divorce (including none, or including making it dependent on how long the marriage lasts) and for how long.  It can make rules about how a divorce affects your wills and life insurance.  It can even make rules for how your divorce is governed (if you are religious, for example, maybe you want your divorce governed under the rules of your religion, instead of state law - just be aware a state court will not enforce any provision that actually violates someone's constitutional rights).

Matters a Premarital Agreement Cannot Address

The short answer to this header is "children."  You can certainly put whatever you want to in the premarital agreement regarding custody, visitation and child support in the case of divorce, but if you go to a judge and seek to have it enforced, be ready for the judge to laugh in your face.  Custody, visitation and child support are, in theory, based on "the best interests of the child," and no judge is going to accept that you knew what those best interests were before you even got married.  As a result, a custody, visitation or child support agreement in a premarital agreement is completely unenforceable unless a judge makes an independent determination that the arrangement is in the child's best interests.

Other matters that cannot be included in premarital agreements include prohibitions on re-marriage (except in the context of terminating spousal support upon re-marriage), rules forcing a person to stay part or become part of a religion, post-marital sexual restraints on a person, post-marital restrictions on where a person may live, and similar matters.

Defenses Against Application of a Premarital Agreement

While occasionally courts deal with cases that are arguments over construction of premarital agreements, oftentimes a legal dispute over a prenup involves one party trying to enforce the agreement and the other trying to have the agreement nullified.  There are some defenses to the enforcement of a premarital agreement, but the Premarital Agreement Act favors premarital agreements, and as such, those defenses are limited, and frequently an uphill climb.

As I said before, premarital agreement law is quasi-contractual.  That means some traditional contract defenses apply, but some do not.  For example, the statute of frauds applies, and in fact is even stronger than the typical statute of frauds - in other words, a premarital agreement must be in writing, a verbal or implied premarital agreement is unenforceable.  A lack of consideration (a contract defense that says a contract is invalid unless both parties get a benefit [such as receiving money or goods] and suffer a detriment [such as paying money or giving up goods] from the contract) is specifically not allowed as a defense to premarital agreements.

Also, as you might expect, the contract defenses of duress (that you did not sign the contract voluntarily) and illegality of the terms of the contract are defenses.  On the other hand, the statute of limitations, while a defense, is tolled (as in, does not run) while you are married, so a breach of the agreement only becomes unenforceable if you have already been divorced at least five years (the statute of limitations on breaches of written contracts).

The final major defense is unconscionability - probably the most common attack on a prenup.  Unconscionability is a contract defense that says due to a combination of unfairness in how the contract was drafted and signed, as well as unfairness of its results, the contract should not be enforced.  Unconscionability, however, is only sort of a defense to a prenup.  In order for the unconscionability defense to succeed, the party attacking the agreement must not only prove that the prenup is unconscionable, but also that at the time of signing the prenup the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party and that the party did not voluntarily and expressly waive, in writing, that party's right to the disclosure.

In short, prenups are very hard to attack, and will usually be held to be valid and enforceable.

A Note on Marital Agreements

So, what happens if you are young and idealistic and decide "you know what, this prenup thing isn't for me, I'll never get divorced," but then a year later you and your spouse come to your senses and realize it would have been helpful to have a prenup just as a fallback safety net and something to reduce your legal fees if you did get divorced?  Well, you are not out of luck.  In 1987, Virginia adopted the Marital Agreement Act which is codified as Virginia Code 20-155.  All that the Marital Agreement Act really says is that if you sign what would otherwise be a prenup after you are already married, it is still enforceable under all the same laws and in all the same ways as a prenup.  So, it's never too late (and if you hear your friends who are in a divorce talking about their "Separation Agreement" or "Property Settlement Agreement" - those too are marital agreements to which this law is applicable).

Conclusion

Pre-marital agreements can be valuable ways to protect yourself and your property in case of divorce, but there are limitations to what a pre-marital agreement can cover.  Moreover, if you are considering signing one, review it closely - it's unlikely that you will later be able to challenge it successfully.  If you are considering or want to draft a pre-marital agreement, or you are involved in a legal dispute involving a pre-marital agreement, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me or another attorney in my office.  Your initial consultation is free for up to half an hour!

FAQ's About the Legal System - Part I

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

Introduction

Well, it's Thursday, and I haven't done a blog post yet this week, so my calendar tells me I'm due for one.  Nonetheless, after spending most of the day yesterday in court, and then running around the county on various errands, I find myself this morning with a terrible case of writer's block.  Fortunately, I had planned for such a possibility.

Over the course of my legal career, there are numerous questions that I get asked repeatedly.  In terms of this blog, the answers to these questions are frequently too short to warrant blog posts on their own, so I've had an "FAQ" post on the back-burner for a while.  So, what follows are some of the questions I am frequently asked as an attorney, and my quick answers thereto.  I doubt this will be my last FAQ, however, as I have quite a few to go through.  Moreover, if there's an answer you want more information about, you can certainly leave a comment.  Heck, you may inspire me to extrapolate an entire post about that topic and help break my writer's block!

Anyways, here we go...

Why do lawyers charge so much money?

The complete answer to this question is a fairly complex economics explanation - we charge what "the market" allows us to charge because clients come into an attorney-client relationship expecting to pay that much.  The simpler answer, however, is that like any business, attorneys charge at rates they need to in order to sustain their business.  Attorneys have very high rates of non-payment from clients for a variety of reasons (sometimes even the best attorneys lose, and clients seem to think they don't need to pay when that happens), and a large percentage of our workday is non-billable time.  As a result, we need to charge enough to keep the business going (pay rent, computer fees, employee salaries, etc.), and also to feed our families.  You see, there's this misperception that lawyers are all wealthy aristocrats which is largely false.  There's a small percentage of attorneys that make millions a year, but most make middle class salaries at best.

Why is the legal system biased in favor of people with lawyers?

This is a question I get a lot and most people are quite skeptical when I say the legal system is not biased.  In fact, I see judges often go out of their way to make sure pro se (unrepresented) persons get heard.  The problem is, we have a complicated legal system, filled with rules that are, in theory, designed to promote the efficient running of justice, and attorneys are forced early on to learn those rules, whereas an unrepresented individual who has never dealt with the court before hasn't, and can fall into those traps much more easily.  Moreover, attorneys know the law better because knowing the law is our job - we have studied the law much longer than most any pro se person will have.  This question is almost like asking "why are illnesses biased in favor of being treated by doctors."  Sure, anyone can treat an illness (and for some small illnesses, most of us do treat them ourselves), but doctors have spent years studying these things that we just can't, and so they know how to treat it better.  With lawyers and the legal system, it's largely the same.

What does "jurisdiction" mean?

The dictionary definition of jurisdiction is "the official power to make legal decisions and judgments," and that describes it pretty well.  Jurisdiction determines when a court can make a ruling, and when it cannot.  For most intents and purposes, there are two kinds of jurisdiction - "subject-matter" jurisdiction and "personal" jurisdiction, and in order for a court to be allowed to even consider a case to begin with, it must have both.

Subject matter jurisdiction is the law determining whether or not the court is allowed to hear cases of a certain type.  If a court does not have subject matter jurisdiction, it does not have the power to hear a case, even if all parties want the court to hear it, and any ruling issued by a court without subject matter jurisdiction is immediately void.  Subject matter jurisdiction is usually determined by the legislature that controls the court (so, state legislatures for state courts and Congress for federal courts), but there are some constitutional limits as well (the case you all learned in school - Marbury v. Madison, which established judicial review, did so by saying it was unconstitutional for the Congress to give the Supreme Court subject matter jurisdiction over the original filing of a writ of mandamus).

Personal jurisdiction is, as the name suggests, "jurisdiction over the person."  In other words, if the court does not have jurisdiction over the person, it cannot very well compel that person to do anything.  Personal jurisdiction is a much more complicated subject than subject matter jurisdiction, and it may very well warrant a short blog post someday, but the short (and admittedly imperfect) description is, a court has personal jurisdiction over you if a) you were served with process personally in the state where the court sits, b) you are being sued for an action that had some effect in the state where the court sits, c) you are a resident of the state where the court sits, or d) you willingly consent to the court having personal jurisdiction over you.  So, as you can see from d), unlike subject matter jurisdiction, personal jurisdiction can be overcome if the parties want it to be (and there are reasons why someone might consent to personal jurisdiction).

Who picks the judges in Virginia?

So, most of you are probably aware that in the federal system, the president nominates judges for confirmation by the Senate.  You may also be aware that in many states, the state judges are either similarly picked (Governor nominates, legislature confirms), or are elected.  Virginia, however, has a fairly unusual system - our legislature unilaterally (without any legal say from the Governor, though he may have a practical say) picks our judges.  The way this practically works is that when there is an opening, the local Bar Association interviews candidates and recommends several to the local legislature delegation, and the local legislature delegation then decides who to recommend to the full legislature.  It is unusual for the full legislature to go a different route than the local legislature delegation, though it does happen on occasion.  Our judges serve 8 year terms, except for the Supreme Court justices who serve 12 year terms, and must be re-appointed if they wish to stay on the bench at the end of their terms (most judges are re-appointed without difficulty, but every now and then one will get voted off).  Further, our judges have a mandatory retirement at age 70, although they can continue to serve as "senior" judges and justices after that, in which case they can sit on cases where other judges are not available.

What is a "Demurrer"?

As my boss likes to say, they don't call us the "Old Dominion" for nothing.  Virginia courts have a particular love for Latin terms that have long since been abandoned by most other states.  While most states have a "Motion to Dismiss" on the basis of "failure to state a claim" (this is Rule 12(b)(6) in federal court, for example), Virginia calls that a Demurrer.  Basically that just means you are saying that even if every allegation in the Complaint initiating the lawsuit were true, the plaintiff would not be entitled to the relief the plaintiff seeks.  Also, Virginia also still uses the term "subpoena duces tecum" which is the same thing as what other states call a "subpoena for documents."

I'm about to go skydiving, is my liability waiver valid?

So, liability waivers are another thing that might warrant a full blog post some day.  Virginia's rule generally, although there are some exceptions, is that you can waive liability in advance for property damage, but not for personal injuries.  So, a waiver that says "I will not hold x liable for damage that may occur to my property" is valid and enforceable, but a waiver that says "I will not hold x liable for any injury or death I may suffer" is invalid.  Again, there are exceptions, but that's the general rule in Virginia.

Conclusion

Well, I think that about covers it for today.  Thanks for bearing with me as I battle the dreaded writer's block!

Feeling "In"secure - Security Deposits and the Law

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

Introduction

One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment.  Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy.  However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen.  Can I use my deposit as my last month of rent?  How do I get my deposit back?  What responsibilities does the landlord have?

Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences.  This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.

VRLTA vs. Common Law

Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not.  Security deposits are no different.  VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant.  Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself.  As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.

Security Deposits Under VRLTA

Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics.  First of all, the security deposit demanded cannot be more in value than two months' worth of rent.  As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder.  Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.

There are other provisions in there too, but those are the main ones.  It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit.  This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning.

Security Deposits Under Non-VRLTA Leases

As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself.  I cannot count the number of times I've had a consult with a potential client that goes like this:

Potential Client:  "It's been 45 days, and I haven't heard from the landlord about my security deposit."

Me:  "Well, where in the lease does it say that the landlord has 45 days?"

Potential Client:  "I saw it online that it's a law."

So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.

When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease.  How does the lease say that the security deposit is to be dealt with?  If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline.  Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow.

But, as I said, that timeline is not manadatory.  My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action.  I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit.  If you do not get a response, you can file suit for your security deposit.  Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.

Can I Use My Security Deposit for Rent?

I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit.  That covers the rent!"  The short answer is, no it doesn't.

While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent.  As a result, you cannot use your security deposit to pay a month of rent.  For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it.  For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.

In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.

Conclusion

Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases.  If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me.  The initial consultation is free for up to half an hour!

The Lawyer in Your Group of Friends or Family - When You Seek Legal Advice from a Friend

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

Introduction

In this day and age, it seems like lawyers are everywhere.  As a result, it is almost impossible that you are reading this as someone who does not personally know an attorney - a family member, friend, or both!  This means that if you encounter a legal situation in your own life, your first temptation might be to talk to the attorney you know before you do anything else.

I’m not going to sit here and tell you that this first temptation is wrong.  Quite the contrary, friends and family members are great resources for many things in life, and if you know an attorney in such a context where you also know that this is someone you can trust, you’d be foolish not to speak to them first.  But what happens after that conversation?  What happens if the attorney they refer you to turns out to be no good?  What happens if you ask them to be your attorney directly?  Do you really want to risk your relationship with this person?

 
In this post, I discuss some of the pitfalls of having someone you know represent you or refer you to another attorney, and some advice on how to protect your relationship as a friend or family member while also pursuing your legal interests.

Don't Expect the World from your Referral
 

I’m going to cover referrals to other attorneys first.  One of the reasons I say that it is a good idea to speak with an attorney you know when you have a legal issue is that an attorney who is already your friend is more likely to say “I don’t know anything about that area of law” than an attorney who sees you as a potential paying client.  An attorney who sees you as a potential paying client might think he could gain sufficient competence in that area of law during representation to reasonably say “yes, I can do that,” and while that might work out, do you want to take that chance?  So, with a friend or family member, you are more likely to get an admission of a lack of knowledge.  Your follow-up question, however, is where the danger comes.  You’ll likely respond with, “well, do you know a good attorney who does?”

The fact is, contrary to what is often portrayed on TV, attorneys are often very insulated in their areas of practice.  An attorney is likely to have a good idea of who the good attorneys are within their field, but if they are within their field, then that attorney would not have answered that she does not know anything about that area of law. So, if we are asked to refer you to someone in a field of law we know nothing about, we are not likely to have much more information than you do - unless for some reason we had to hire an attorney in that field ourselves.

Attorneys do get to hear whispers of reputation, and while there are plenty of reliable sources to find attorneys that are available to the general public, the average person in the public does not know what those sources are, but an attorney does.  As a result, we may still give you more reliable referrals than you could find yourself.  Nonetheless, we typically will not know the attorney personally, or have ever seen them in court.  I know I, for one, can count on one hand (I believe the exact number is two) the number of attorneys I personally know and can recommend from personal experience that practice in fields in which I do not practice.  One is solely because he rents an office from our firm so I encounter him on a daily basis, and the other is solely because he happened to be handling the real estate side of a very complex landlord/tenant case I handled.

 
As a result, perhaps the best way to preserve your relationship with an attorney friend or family member when they refer you to an attorney is to keep your expectations reasonable about that referral.  If that attorney turns out to be lousy, tell your friend or family member so that they do not refer that attorney again, but otherwise understand that they just do not know much more about that attorney than you do.

Retaining the Attorney you Know
 

I shock people when I say that I do not think it is a bad idea, if you are in an area of law that the attorney practices, to actually retain a friend or family member as an attorney.  After all, money is, to be honest, a good motivator but not the greatest of motivators.  Few things, however, can be a stronger motivator for a person than protecting those you care about.  There are few ways you can be surer that your attorney will go to the mat for you than hiring a friend or family member.  Moreover, a friend or family member will start out knowing more about your situation than most anyone else.  While every case is unique, and I certainly can’t say this would happen for you, I once had a case where the other attorney, who did not know I was representing a family member (since it never came up), made the mistake of trying to get me to have sympathy for her client, when I knew, from personal experience, the mistreatment her client had subjected my family member to.  I responded very directly with a great deal of specificity in which I made clear where my sympathies lie, and within another week we had settled the case very favorably.

 
Of course, there are numerous ways that the attorney-client relationship can end up harming your friend or family relationship - and that’s why so many think it’s a bad idea altogether.  The most common causes of this breakdown is fighting over payment of fees, dissatisfaction with the results of the case, or inability to separate the attorney relationship from the personal relationship.  I want to address those points now, as it is entirely possible to avoid those problems.

Never Make an Hourly Rate Fee Arrangement
 

The fact of the matter is 99.9% of fights over fees are a result of an hourly fee arrangement (that percentage is completely made up for effect, by the way, but you get the point).  You may also recall from my post a couple months back that hourly fees are the most common fee arrangement.  So, the fact is, if you are going to retain a friend or family member, the odds are you will be doing so in a situation where, typically speaking, they charge an hourly fee.

I cannot stress strongly enough that you should not, under any circumstance, hire your friend or family member on an hourly basis.  Remember my above statement about how hard your attorney will fight for you in this situation?  Well, now you’ll be paying for those extra hours, and trying to guilt your friend over their fees.  The problems easily spiral from there.  You should only allow a friend or family member to represent you on a pro bono basis, a flat fee basis, or a contingent fee basis.  If the attorney does not have the flexibility with his or her firm (or the willingness for whatever reason - you don’t know, maybe their personal budget is tight that month) to not charge an hourly fee, then be understanding and accept that, and ask the attorney for a referral to someone else.

 
Few things can harm a relationship between friends and family members more than disputes over money.  To date, I have represented a friend or family member three times, once on a flat fee basis and twice on a pro bono basis, and the result has been that I have yet to have a single fee-related fight with these friends and family members.  Moreover, in the pro bono situations, they already recognize that I can only do so much for them since I am not getting paid, and as a result they are less demanding of my time - meaning if I was charging an hourly rate, they’d actually be keeping their bill down (of course, this is actually the opposite of what typically happens in a pro bono case where you are not representing a friend or family member, but that’s neither here nor there).  If you avoid hourly rate fees, you will likely avoid this fight, and it’s simply better to not hire your friend or family member at all than to do so on an hourly rate basis.

Remember that Sometimes Attorneys Lose
 

Legal cases are uncertain.  The law is frequently unclear, and there is always two sides to every story.  Perhaps the biggest pitfall an attorney who has a friend or family member as a client faces is that we will believe you completely, as opposed to the more skeptical eye we would take to a client who we do not know personally.  As a result, we may tell you at first that your case is very strong, but then as the case develops, it becomes clear that it actually is not.

 
As with referrals, expectations are the way to prevent this problem.  Understand that if you lose your case, it’s probably not your attorney’s fault.  Moreover, if your attorney set your expectations too high, it’s probably because your attorney believed you completely, and you did not allow your attorney to see the other side of the situation.  If you understand these facts, and set your expectations accordingly, you can preserve your personal relationship with the attorney, even if the professional relationship ends poorly.

Leave Your Case at Your Attorney's Office
 

I’ll be blunt - if I’m coming over to your house for a poker game, I want to drink a few beers, play some poker, relax, and have some fun hanging out with my friends.  If we’re gathering for Thanksgiving dinner, I want to spend the evening catching up with family, eating good food, and telling jokes about the family members who made the mistake of not showing up (just kidding about that one… mostly).  If I talk about work, it will be in the context of “you won’t believe what happened today.”  What I do not want to do is actually do work.

You need to understand that if you have a personal relationship with your attorney, then you have a professional relationship on weekdays, and a personal relationship on weeknights, weekends and holidays.  One should not intrude on the other.  You wouldn’t show up at my office to spend three hours telling me about the raging party you went to this past weekend, would you (assuming that something didn’t happen at that party that impacts your legal case in which I am representing you)?  Then why would you show up at my house for a guys’ night and spend three hours talking about your case?

 
I understand that your legal issues are very important to you and an important part of your life - but if I’m your attorney, to me, they are work.  They are part of my job.  The first issue above (fees) can result in anger in both directions.  The second (fighting over results) almost always comes up where the personal relationship is harmed due to the client’s unhappiness.  This issue almost always comes up where the personal relationship is harmed due to the attorney’s unhappiness.  Just like you don’t want to bring your work home with you, we don’t either.  If you want to help preserve your personal relationship, leave the professional relationship at work.

Conclusion

In short, if you have a legal issue and you know an attorney personally, good for you.  By all means, talk to her about it.  Just recognize that you are about to enter a danger zone for your personal relationship.  You can take simple steps to preserve your relationship, however.  If the attorney refers you elsewhere, be reasonable about your expectations.  Understand that while your attorney friend or family member probably does know more about that attorney than you do, it’s probably not by much.  If you actually retain your friend or family member as an attorney do not do so on an hourly basis, keep your expectations about the case reasonable and do not hold it against your attorney if it turns out poorly, and don’t let your professional relationship intrude on your personal relationship’s time.

So You've Been Sued - Now What?

As always, before reviewing this post, please read my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed here are applicable only to the Commonwealth of Virginia.

Introduction

Many people, when they plan to interact with the courts - especially the civil side of the courts - would only plan to do so with an attorney.  As a result, frequently the only interaction someone has with the civil courts without an attorney is when they are sued - after all, if you are the one being sued, you probably did not plan ahead to have an attorney already.  The first question people often ask when they've been sued is "ok, what do I do now?"  My answer, as you can probably imagine, is "hire an attorney."  The point of this blog, however, will be to discuss how fast you need to hire that attorney, and what you can do to protect yourself if you wait too long.

When the Clock Starts Ticking

The clock on your deadline to respond to a lawsuit does not start ticking the moment a lawsuit is filed.  After all, if a lawsuit's just been filed, how would you know about it in order to respond to it?  As a result, the clock does not start to tick until you have been "served" with the lawsuit.  Service of a lawsuit occurs when a summons, along with the Complaint, is delivered to you by either a private process server or a deputy sheriff.

Now, you've probably seen the movies where the process server pulls some trick on some unsuspecting person in a public place so that the person identifies him or herself, and then gives them the papers and says "you're served."  While that is one of the few things shown on TV that actually does happen on occasion (I once had a process server serve an individual while he was at a work convention, and he repeatedly denied being that person, not realizing he was wearing a name tag), that is not necessary if the person suing you knows where you live.  If they know where you live, the process server can come to your home, knock, if a member of your family older than 16 is home but you are not he or she can give the papers to that person, and if no one is home, he or she can tape the paperwork to your front door, and that is when you are considered served, and this is the moment the clock starts ticking.

How Long is the Clock?

Well, this is where things get a little trickier.  You see, in Virginia, we have two completely separate courts for civil cases - the Circuit Court and the General District Court.  The Circuit Court is technically the "higher" court since you can appeal General District Court rulings to the Circuit Court, but most lawsuits start in the General District Court.  The General District Court has jurisdiction to hear any lawsuit for less than $25,000, while the Circuit Court has jurisdiction to hear any lawsuit for more than $4,500 (so yes, if a lawsuit is between $4,500 and $25,000 a plaintiff can choose which court in which to file, but most choose the General District Court since it typically proceeds much faster).  Also, if you're being sued for something other than money (say, "specific performance" on a contract, or an injunction), those can generally only be in the Circuit Court, although the General District Court is the only court that can hear evictions.  Welcome to the complexity that is the Virginia court system.

Add to that the fact that within the General District Court there is the main civil court, and the small claims court.  The small claims court has jurisdiction to hear any lawsuit for less than $5,000 (so yes, if a lawsuit is between $0 and $5,000, the plaintiff can choose whether or not to file in small claims court, and if it is between $4,500 and $5,000, the plaintiff can choose whether to file in GDC small claims, GDC regular civil, or Circuit Court).  The reason this is important to know is that all three "courts" have different procedures for responding to a lawsuit.

How to Tell Which Court You Are In

So, telling you there are three courts does not help you very much if you cannot tell which court your case is in.  The easiest approach is to look at the top of the papers you were served with.  If it says "In the Circuit Court of X County" you are in the Circuit Court.  If it is a "Warrant in Debt," "Warrant in Detinue," or "Summons for Unlawful Detainer," you are in the General District Court.  If it is a "Warrant in Debt - Small Claims Division" or a "Warrant in Detinue - Small Claims Division" you are in the small claims court.  If you cannot tell, do not guess - either call the courthouse or speak to an attorney.

Timeline in Circuit Court

If you have been sued in the Circuit Court, you have 21 days from the day you are served in which to file "responsive pleadings."  A responsive pleading can be an "Answer," a "Demurrer," a "Plea in Bar," or a similar pleading, but this must be in writing, and it must be done properly to avoid a default judgment.  Note, if you take more than 21 days, you are in default.  If you are in default, you are entitled to no further notice about the case, and a judgment can be entered against you without you being told that this has happened.  It is in your interest to hire an attorney ASAP if you are being sued in the Circuit Court so that a responsive pleading can be done properly.

Timeline in the General District Court

If you have been sued in the General District Court, but not in the small claims division, your timeline is a little looser.  Unless the box on the summons states that you must appear to try your case, the date listed on your summons is what is called a "first return."  At the first return, you will tell the judge whether or not you agree that you owe the money you have been sued for.  If you do, a judgment will be entered against you.  If you do not, a trial date will be set.  If you do not appear, a default judgment may be entered against you.  As a result, you do not need to file anything in response to a General District Court summons, but you do need to appear at the first return.  If you cannot appear, call the court clerk immediately and the clerk will explain the procedure for getting a continuance.  As for when you should hire an attorney, I would recommend doing so before the first return - if the judge asks any follow-up questions, the attorney will be better prepared to face them.  However, you do not really need an attorney until you are filing something or preparing for trial. 

What do I mean by filing something?  Well, typically at a first return at least one party will ask for "pleadings."  This means the plaintiff must file and send you a "Bill of Particulars" outlining the details of the case.  Then, you must file and send the plaintiff an "Answer and Grounds of Defense" outlining your defenses to the case.  Failure to file your Answer and Ground of Defense on time can result in a default judgment being entered against you.  As a result, I would strongly recommend you have an attorney well before the deadline to file your Answer and Grounds.  As a final note, if you do not have an attorney at the first return and the other party does not request pleadings, you should.  There's always a chance they won't file theirs on time (in which case you can get the case dismissed), and a Bill of Particulars will tell you the exact arguments you face, as the plaintiff cannot argue facts at trial that were not alleged in the Bill of Particulars.

Timeline in GDC - Small Claims Division

The Small Claims Division is a little faster than the main General District Court.  There the date on your summons is your trial date, so be prepared to go to trial that day, and there is nothing else you need to do before then.  However, you are not permitted to have an attorney in the Small Claims Division.  If you wish to hire an attorney to represent you in the case, you can do so, but they will then need to file a motion to remove the case to the main General District Court, where it will be tried on the timeline outlined above.

What about the Juvenile Court?

Those who know a bit about the Virginia court system know that we have one more trial court I have not discussed in this blog post - the Juvenile and Domestic Relations District Court.  I left that off first of all because you are not sued for money in the way we typically think of it in the J&DR Court.  The only civil cases you can be sued for in the J&DR Court are child custody and visitation, child support, spousal support, adoption recommendations, and protective orders.  I left the J&DR Court out for two reasons - first, the procedures and deadlines vary dramatically from county to county within Virginia, and second, the procedures and deadlines vary dramatically from type of case to type of case.  When you are served with a J&DR Court case, at least one document will have a court date on it.  You should call the clerk and ask if that date is a "status hearing" or a "hearing on the merits."  If you do not have a court date on your papers, then one hasn't been set yet - although you should still call the clerk and make sure.  I recommend hiring an attorney or speaking with the court clerk about your specific case - rather than following any timeline suggested on a blog.

What to Do if a Default Judgment is Entered Against You

The first thing to do is figure out why a default judgment was entered against you.  Was it because you decided to ignore the case?  Or was it because something came up that prevented you at the last minute from appearing at the GDC court date or filing an Answer in the Circuit Court?  Or was it because you never knew about the lawsuit in the first place?

Virginia places a premium on "certainty" in our judicial outcomes.  As a result, once a default judgment is entered, it is very hard to get undone.  Moreover, the rules are different depending on when you are asking to have the default get undone.  Nonetheless, it is possible to get a default undone in some cases.

If you are requesting the default judgment be vacated within 21 days after it is entered, you need to show the court "good cause" as to why you were in default.  A sudden trip to the emergency room, a traffic jam on the way to court, etc. can, although there is never a guarantee, be "good cause."

If, however, it is more than 21 days later, a default can only be vacated for five reasons.  They are as follows:

1)  Clerical Error - If the judgment is supposed to be against someone else with the same name as you, but the court clerk accidentally listed it as you (by using your address, for example), or the clerk accidentally records the judgment twice, you can undo the default judgment.

2)  Fraud on the Court - The Plaintiff lied to the court about where you lived, how much you owed, etc.  This must be filed within two years of the judgment.  Please note that "fraud" is very hard to prove as you must prove that the plaintiff intentionally misled the court.  An accident or mistake of fact by the plaintiff is not fraud.

3)  A void judgment - A void judgment is one that the court was not authorized to give when it gave it.  This has nothing to do with the validity of the claim itself.  A judgment is generally only void if the court lacked jurisdiction to hear it - either subject matter jurisdiction (say a General District Court judge entering judgment on a lawsuit for $40,000), or personal jurisdiction (you were never properly served with the court paperwork).  This is the most common way a default judgment is undone, as oftentimes a default is due to the address on which a person was served being out of date.  Note, however, that just because you did not receive a summons does not mean your judgment is void.  In some cases you can be served via Secretary of the Commonwealth, and that's still good service even if the address is out of date on the theory that you should have kept your creditor appraised of your change in address.

4)  An accord and satisfaction - If, prior to the entry of the judgment, you and the plaintiff reached a written agreement settling the matter, and you fully paid off that agreement, prior to the entry of the judgment, and you can prove it, or if you had fully paid everything the plaintiff seems to be asking for prior to the entry of the judgment, then the judgment will be vacated.

5)  Military service - If you are a member of the armed forces on Active Duty, you have rights under federal law to protect you from some default judgments.  If you did not waive your rights (by actively participating in the case), and those rights were not followed by the court (say because the plaintiff did not know you were on Active Duty), you can get a default judgment vacated.

That's it.  So, if you don't have "good cause" within 21 days, or even if you do have good cause, but it's been more than 21 days and none of the above situations apply to you, then you are stuck with the default judgment, no matter how good a defense you had.  From there, you just have to figure out how to pay.  As a result, the best way to get out of a default judgment is to not allow one to occur in the first place.

Conclusion

Being sued is a scary thing, and many people simply do not know what to do when they have been sued.  They know they need to get an attorney - but they do not know how soon, after all, they want time to interview multiple attorneys.  The answer does depend on which court you have been sued in, but really, no matter which court you have been sued in, you want to find an attorney ASAP.  When you are served, try speaking to an attorney that day, the next at the latest, and you will probably be in good shape.  If you have been sued and would like someone to defend you please feel free to give us a call at (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  If it turns out your suit is in an area we don't practice, we can give you a referral.  Otherwise your consultation is free for up to half an hour!

When Living With Your Parents Goes Bad - Tenancies at Will and the Law

As always, before reading this 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

Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents.  The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.

Once you turn 18, you no longer have an inherent "right" to live in your parents' house.  However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back.  This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."

Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies.  As I stated in that post, any tenancy has a lease, even if you don't know it.  In most cases, when living with your parents, the lease is neither oral nor written, but rather implied.  In other words - you get to live there as long as your parents don't decide otherwise.  It's important to note, however, that this situation does not just come up between parents and children.  If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.

What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities.  This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.

What Is a Tenancy at Will?

Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent."  So clearly Virginia law recognizes such a thing, and it is governed by the Common Law.  In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will."  Much like "employment at will," a tenancy at will is a tenancy which the landlord  may terminate at any time, for any reason.

So, if you live with your parents and don't pay rent, you are a tenant at will.  The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent.  The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore."  Once that happens, the "lease" is terminated and the tenant must move out.

Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right?  The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave?  Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help."  As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence.  This rule is just as applicable to a tenancy at will as it is to any other residential tenancy.  As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc.  The landlord must get a proper eviction.

How to Evict a Tenant at Will

The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated.  You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon.  Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint.  That would be a little extreme, but that's your right as a landlord in a tenancy at will.

From there, the case would proceed as any Unlawful Detainer would.  Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict.  Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on.  If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.

What If I Start Paying Rent?

Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent.  However, an offer to the "landlord" to pay rent is only that - an offer.  They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will.  If, however, they do accept that offer, then the change in your situation depends on the frequency of payments.  If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice).  However, you also now have the responsibilities of a paying renter.  If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.

Can I Do Chores Around the House and Call it Rent?

Now we get into a trickier area.  Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house.  However, this is very, very difficult to prove.  First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time.  Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might.  There is an exception, though, to the strict rules regarding "in kind" rent.  If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores.  However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.

Conclusion

Tenancies at will are a very common tenancy, especially today.  Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on.  These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many.  If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  The consultation is free for up to half an hour!

You Can't Take the Kids and Run - Relocation and Child Custody

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.  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.  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 will get the same amount of time with the child as he or she has now (even if that means fewer weekend visits, but more weeks in the summer or some similar re-arranging of the schedule), then the relocation will probably be approved.  If you cannot show that, the relocation probably will not be approved.  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!