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 in this post apply only to the Commonwealth of Virginia.
Introduction
In the past, I've done FAQ's when I've had writer's block or when I wanted to introduce a new concept to the blog. Today, I'm doing it because I have had several ideas for posts to put together, and realized that all of them are too short to really warrant their own full blog post - so they worked better as FAQ's. As always, the format will be simple - I'll pose a question in bold, usually one I am asked a lot, and then I will attempt to answer it in the paragraph that follows. At the end, I'll ask you to submit any questions you may have for future FAQ's.
If I'm involved in a lawsuit but have a lawyer, when do I actually need to take off work and come to court?
Note: This question was sent to me by a reader in response to my ask the lawyer blog post.
This is actually a very common question I get asked when representing clients. The answer is two-fold. First and foremost, you need to be in court any time there's a hearing in which your testimony will be needed. This means if the hearing is about a factual issue (as opposed to the facts not being in dispute, but there being a legal issue) there's a good chance you need to be there. Second, if there's a hearing where you not being there might look to the judge like you don't care about the case, you should be there. For both of these reasons, however, your lawyer is likely to know what's needed and should be able to advise you. In my experience, hearings other than the trial in which testimony is taken are rare. Pendente Lite hearings in family law cases, hearings on a Plea in Bar, and hearings on matters that will take more than 30 minutes to be heard tend to be the only ones I can think of - but again, for your case, your lawyer will know. For the second, this is pretty much only at trial. In a civil lawsuit, if you have a lawyer, there is no requirement that you actually attend your trial (unless you have been served with a subpoena). Nonetheless, even if you don't plan to testify, failure to be there will usually look bad to a judge unless you have a good reason.
While every case is different so I cannot speak to the facts of your particular case, in most non-family law cases I have handled, I've needed my client to come to court exactly once (the date of trial). Even in family law cases, it's typically been only twice (trial and a Pendente Lite hearing).
My tenant has stopped paying rent and skipped town - how long will it take before I get my property back to re-let?
So, again, every case is different, and even worse - the answer is probably different from county to county, so I'm mostly speaking from experience in Fairfax County here. Even though your tenant has disappeared, you still need to serve them with a 5 day pay or quit notice. The sheriff or a private process server will need to post it on the front door of the residence. You must wait 5 days from that point before you can file your Unlawful Detainer (assuming no payment is made). If after five days you file an unlawful detainer, the return date will usually be set 16-21 days from then. If, at the return day, nobody shows up for the other side, you can ask for a default judgment, and, unlike many other situations where there is a 10 day waiting period, you can ask that a "writ of possession" be immediately issued. Upon the issuance of a writ of possession, the sheriff's office will receive documents needed to execute the writ. After usually about two weeks, you will get a call from the sheriff's office to find out your availability to be at the property. Once you agree on a date, which must be at least four days in the future, you and a sheriff's deputy will go to the property and you will be restored to possession of it. In short, if there is no opposition from the tenant at all, you can reasonably expect to have possession back somewhere between 40-45 days after the process begins - but it's certainly not a guarantee.
As of December 31st, my wife and I were separated. I really don't want to have to work with her to file a joint tax return. Can I file separately without taking the tax penalty for doing so?
Note: This question was sent to me by a reader in response to my ask the lawyer blog post.
I am not a tax attorney, but this is an issue we have to address regularly nonetheless. My first comment would be to suggest that you try to work through your issues and file a joint return. You are likely to each pay less tax if you do this. If you absolutely cannot stand it, however, my understanding of the tax code is that you can file as a single taxpayer if you are legally separated. This would avoid the penalties associated with filing in a "married, filing separately" return. In Virginia, however, we don't have a "legal separation" concept. Your separation becomes "legal" as soon as one person leaves and one of you decides that the separation should be permanent. Tax law, as a surprisingly large number of federal laws do, defers to state law when determining if you are legally separated. Since, as discussed above, Virginia considers you separated the moment one of you leaves and one of you decides that the separation should be permanent, that's been generally accepted to be all you need in Virginia to allow you to file a "single" federal tax return.
While my divorce case was pending, I lost my job and can no longer afford the mortgage on the marital residence. I found a buyer willing to pay a good price and give us a decent bit of equity, but my husband won't sign the sales papers and wants to wait to hear how the court will divide the house at trial. The house will be foreclosed on before trial, though, since we can't afford the mortgage! What can I do?
This is a bit of a sticky issue. Your husband may be right that it's a good idea to get the court's decision on how to divide the house before selling, but sometimes the reality on the ground just doesn't allow for that. He's either being unreasonable, or it's always possible that in anger he's sabotaging your assets. He may very well have decided that he's willing to give up his share of the house just to watch you not get yours.
Fortunately, there is a solution. Virginia Code Section 20-103, the section that allows you to file for pendente lite relief, allows a court to make a pendente lite order "to preserve the estate of either spouse, so that it be forthcoming to meet any
decree which may be made in the suit." There is no restriction given on what courts can do to preserve the estate of either spouse, either. So, if you can convince a court that there will be a substantial loss to both of your estates if the home goes into foreclosure, the court may well order your husband to sign off on the sale. If he still refuses, the court can appoint a "commissioner" to sign on your husband's behalf, and by law the signature is just as valid as if your husband had signed himself.
Conclusion
And that's it for today's FAQ's. As always, feel free to e-mail me at sleven@thebaldwinlawfirm.com if you have questions you'd like answered on a future blog post or FAQ. In addition to eventually posting the question and answer if I think it's a good one, I'll usually also immediately respond to your e-mail with a short answer.
Thursday, October 31, 2013
Thursday, October 24, 2013
It's Not Me, It's You - When Losing Isn't Your Attorney's Fault
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
It's amazing to me how many times I hear from people who have just lost in court coming to me looking to hire a new attorney because they are convinced the reason they lost is their old attorney. As I delve into my consultation, however, facts begin to come out in the discussion that make one thing clear - the loss had nothing to do with the quality of the prior attorney. Sometimes my response is "It sounds to me like the judge just got it wrong, so let me help you try to fix it." Sometimes potential clients are shocked (and proceed not to retain me) when I respond "I hate to say it, but I think the judge made the right decision, and I don't think having another attorney would have helped." I can count on one hand the number of times I have actually agreed that the prior attorney did a bad job.
There's an old saying in law that the quality of your attorney makes the difference between "winning" and "losing" a case (I use quotes because winning and losing in the legal context is not always clear-cut) in somewhere around 5% of cases. I tend to agree with that statistic if you add the caveat that having an attorney at all versus not having one makes the difference in somewhere closer to 20% of cases (note that this is still a minority). So, why do I still say having an attorney, and not just any attorney but a good attorney, is so important? For that, you will need to read on.
Was Your Loss Really Your Attorney's Fault?
When you are living your case, it is often hard to consider the possibility that you are wrong. Maybe you are morally right, but legally wrong. If you got your leg crushed by a fallen piano and had to have it amputated because it took too long to get the piano off your leg, you can't sue the people who just stood around laughing at you instead of helping. No matter how wrong what they did was morally speaking, there is no legal duty to help you - as long as they didn't cause the piano to fall in the first place, they're not liable, and no attorney is going to change that.
Now, usually things aren't as obvious, but at least over time, you should be able to get a hint. Remembering that all cases are different so the facts of any given case may not apply to yours, I am aware of a child custody case in which the non-custodial parent has filed suit to take custody away at least four times in the past five years. He has lost every time, and every time a new suit is filed within a couple months with a new attorney. At some point, he might want to start asking if it's really his attorneys, or if it's him, that's losing his case.
Ultimately, the thing to remember is exactly what I say in the introduction. The quality of the attorney makes a difference in trial results about 5% of the time. That means that if you lost, there's a 95% chance that a better attorney wouldn't have done any better for you.
Why Having a Good Attorney Still Matters
So if it's so rare for the quality of an attorney to affect the outcome of a trial, why do you still need a good one? Or why do you need one at all?
Well, let's say you get sued for $50,000, and I told you that with attorney A you'll come away paying $45,000 while with attorney B you'll come away paying $100,000. Wouldn't you choose attorney A?
You see, in the scenario I outline above, attorney A is the better attorney. This is the one to whom you come to your consultation, you explain why you don't think you're liable, he reviews your case, tells you why you are liable, then helps you settle for $40,000, racking up only $5,000 in legal fees in the meantime. Attorney B tells you what you want to hear, tries to find a way to defend your suit, racks up $50,000 in legal fees preparing for trial, and loses.
My point is that the most valuable tool a good attorney brings to the table is knowing when your case is weak. A good attorney will know that you have a losing case, will explain to you why you have a losing case, and instead of wasting billable hours preparing for a worthless trial, will help you settle the case as quickly as possible so you can move on with your life.
Understand that in my scenario here, both attorneys would lose if the case went to trial. The difference is, the better one will help you avoid trial to begin with.
How to Maximize Your Attorney's Effectiveness
So, with that covered, the next question might be what you can do to help your attorney represent you to the best of his ability. The simple answer to this is listen. Your case is yours, and all decisions are ultimately yours, but if your attorney tells you that you have a losing case, you may want to consider that your attorney may be right. Certainly you should feel free to get a second opinion, or if you've heard from friends, colleagues or other attorneys about ways that you have a good case, mention those ways. I know I have had clients bring up to me arguments they thought were winning only to have me explain why these did not apply to their case. This left the client much more satisfied than sitting there just wondering why I wasn't looking at going this other route.
The second way to maximize your attorney's effective is to ask. I am at my best when my clients have almost as good an understanding of the law and legal issues of their case as I do. Since an attorney will never know the facts as well as the client does, and the client will never know the law as well as the attorney does, each person asking the other questions whenever they come up helps maximize knowledge. If you, as a client, know the law almost as well as I do, you might suddenly realize that a fact you never thought was important before actually is important, then you'll mention it to me, and now my ability to represent you has been improved. I've never known an attorney unwilling to answer client's questions about the law and the way it works in their case - any time you have a question, just ask.
Conclusion
Losing is hard for anyone, but when you believed yourself to be right, it is even harder. Often the easiest target for blame for a loss in court is the quality of your attorney, but you need to remember that this is rarely the actual cause of a loss. A good attorney is not necessarily one who will make the difference between winning and losing in court, but between maximizing your gains or minimizing your losses outside of court. The most valuable things you, as a client, can do to ensure that your attorney is as effective as possible is to listen to what your attorney has to say about your case, and to ask your attorney whatever questions you may have. If you have a case that you have lost but would like to appeal or take another crack at, or if you'd like a second opinion on something another attorney has told you, please feel free to e-mail sleven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation with me. Our initial consultations are free for up to half an hour!
Introduction
It's amazing to me how many times I hear from people who have just lost in court coming to me looking to hire a new attorney because they are convinced the reason they lost is their old attorney. As I delve into my consultation, however, facts begin to come out in the discussion that make one thing clear - the loss had nothing to do with the quality of the prior attorney. Sometimes my response is "It sounds to me like the judge just got it wrong, so let me help you try to fix it." Sometimes potential clients are shocked (and proceed not to retain me) when I respond "I hate to say it, but I think the judge made the right decision, and I don't think having another attorney would have helped." I can count on one hand the number of times I have actually agreed that the prior attorney did a bad job.
There's an old saying in law that the quality of your attorney makes the difference between "winning" and "losing" a case (I use quotes because winning and losing in the legal context is not always clear-cut) in somewhere around 5% of cases. I tend to agree with that statistic if you add the caveat that having an attorney at all versus not having one makes the difference in somewhere closer to 20% of cases (note that this is still a minority). So, why do I still say having an attorney, and not just any attorney but a good attorney, is so important? For that, you will need to read on.
Was Your Loss Really Your Attorney's Fault?
When you are living your case, it is often hard to consider the possibility that you are wrong. Maybe you are morally right, but legally wrong. If you got your leg crushed by a fallen piano and had to have it amputated because it took too long to get the piano off your leg, you can't sue the people who just stood around laughing at you instead of helping. No matter how wrong what they did was morally speaking, there is no legal duty to help you - as long as they didn't cause the piano to fall in the first place, they're not liable, and no attorney is going to change that.
Now, usually things aren't as obvious, but at least over time, you should be able to get a hint. Remembering that all cases are different so the facts of any given case may not apply to yours, I am aware of a child custody case in which the non-custodial parent has filed suit to take custody away at least four times in the past five years. He has lost every time, and every time a new suit is filed within a couple months with a new attorney. At some point, he might want to start asking if it's really his attorneys, or if it's him, that's losing his case.
Ultimately, the thing to remember is exactly what I say in the introduction. The quality of the attorney makes a difference in trial results about 5% of the time. That means that if you lost, there's a 95% chance that a better attorney wouldn't have done any better for you.
Why Having a Good Attorney Still Matters
So if it's so rare for the quality of an attorney to affect the outcome of a trial, why do you still need a good one? Or why do you need one at all?
Well, let's say you get sued for $50,000, and I told you that with attorney A you'll come away paying $45,000 while with attorney B you'll come away paying $100,000. Wouldn't you choose attorney A?
You see, in the scenario I outline above, attorney A is the better attorney. This is the one to whom you come to your consultation, you explain why you don't think you're liable, he reviews your case, tells you why you are liable, then helps you settle for $40,000, racking up only $5,000 in legal fees in the meantime. Attorney B tells you what you want to hear, tries to find a way to defend your suit, racks up $50,000 in legal fees preparing for trial, and loses.
My point is that the most valuable tool a good attorney brings to the table is knowing when your case is weak. A good attorney will know that you have a losing case, will explain to you why you have a losing case, and instead of wasting billable hours preparing for a worthless trial, will help you settle the case as quickly as possible so you can move on with your life.
Understand that in my scenario here, both attorneys would lose if the case went to trial. The difference is, the better one will help you avoid trial to begin with.
How to Maximize Your Attorney's Effectiveness
So, with that covered, the next question might be what you can do to help your attorney represent you to the best of his ability. The simple answer to this is listen. Your case is yours, and all decisions are ultimately yours, but if your attorney tells you that you have a losing case, you may want to consider that your attorney may be right. Certainly you should feel free to get a second opinion, or if you've heard from friends, colleagues or other attorneys about ways that you have a good case, mention those ways. I know I have had clients bring up to me arguments they thought were winning only to have me explain why these did not apply to their case. This left the client much more satisfied than sitting there just wondering why I wasn't looking at going this other route.
The second way to maximize your attorney's effective is to ask. I am at my best when my clients have almost as good an understanding of the law and legal issues of their case as I do. Since an attorney will never know the facts as well as the client does, and the client will never know the law as well as the attorney does, each person asking the other questions whenever they come up helps maximize knowledge. If you, as a client, know the law almost as well as I do, you might suddenly realize that a fact you never thought was important before actually is important, then you'll mention it to me, and now my ability to represent you has been improved. I've never known an attorney unwilling to answer client's questions about the law and the way it works in their case - any time you have a question, just ask.
Conclusion
Losing is hard for anyone, but when you believed yourself to be right, it is even harder. Often the easiest target for blame for a loss in court is the quality of your attorney, but you need to remember that this is rarely the actual cause of a loss. A good attorney is not necessarily one who will make the difference between winning and losing in court, but between maximizing your gains or minimizing your losses outside of court. The most valuable things you, as a client, can do to ensure that your attorney is as effective as possible is to listen to what your attorney has to say about your case, and to ask your attorney whatever questions you may have. If you have a case that you have lost but would like to appeal or take another crack at, or if you'd like a second opinion on something another attorney has told you, please feel free to e-mail sleven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation with me. Our initial consultations are free for up to half an hour!
Tuesday, October 15, 2013
No Blog Post This Week - But Stay Tuned!
Those of you who are regular readers of this blog know that I try very hard to make a post at least once a week. Since starting this blog, I have succeeded at that goal. Unfortunately, this week will be the first week I miss.
At present, I have a trial scheduled for tomorrow, a mini-trial in another case scheduled for Thursday, and a hearing in yet another case on Friday, followed by a family photo session with my wife and son Friday afternoon. As a result, my choices this week have been to rush through a short blog post, or to not do a post at all. As I thought about it, I decided that a rushed blog post would not be up to the quality that I like to keep my blog posts to, and as a result, I would be doing a disservice by doing that. So, I am not going to post this week.
Nonetheless, unlike my post in August, I am not hitting writer's block. I have plenty I'd love to talk about right now, and have several extensive posts planned - so please stay tuned, and you'll hear back from me next week!
At present, I have a trial scheduled for tomorrow, a mini-trial in another case scheduled for Thursday, and a hearing in yet another case on Friday, followed by a family photo session with my wife and son Friday afternoon. As a result, my choices this week have been to rush through a short blog post, or to not do a post at all. As I thought about it, I decided that a rushed blog post would not be up to the quality that I like to keep my blog posts to, and as a result, I would be doing a disservice by doing that. So, I am not going to post this week.
Nonetheless, unlike my post in August, I am not hitting writer's block. I have plenty I'd love to talk about right now, and have several extensive posts planned - so please stay tuned, and you'll hear back from me next week!
Wednesday, October 9, 2013
Dead-beat Diplomats - Evictions, diplomatic immunity and the law
As always, please feel review my disclaimer before reading this post by following the link above or by clicking on this link. As always, the principles discussed apply only to the Commonwealth of Virginia.
Introduction
Working so close to Washington, DC, it's only inevitable that my work occasionally brings me into a situation in which I must deal with diplomats. This inevitably means dealing with issues related to Diplomatic Immunity. Now, most people understand that Diplomatic Immunity prevents a country from arresting the diplomats of another country. What many people do not understand is that Diplomatic Immunity also has effects in the context of civil law.
The reason most people do not understand this is that Article 31 of the Vienna Convention on Diplomatic Relations provides an exception to immunity from civil jurisdiction for actions "relating to any professional or commercial activity exercised by the diplomatic agent... outside his official functions." This means most things you would sue a diplomat over (not paying a bill, for example) would likely fit into that exception. However, there are many things that don't (if a diplomat hits you with his car while he's driving to work, you'll have to sue him in his home country). Perhaps the biggest place, however, where a diplomat can use his immunity to interfere with civil actions is in landlord-tenant law. Simply put, a diplomat cannot be evicted.
Inviolability
Now, you might say, "Hey, renting a property is outside a diplomat's 'official functions' so why can't I evict a diplomat?" The answer is that there are two types of diplomatic immunity - one that protects a diplomat from being brought to court (the type we most often think of), and one that protects a diplomat from being harassed by local authorities (called "inviolability").
As discussed above, the relevant law here is the Vienna Convention on Diplomatic Relations, a treaty entered into in 1961 and ratified by most of the world, including the United States. As a federally-ratified treaty, the Convention pre-empts any state law to the contrary. Article 22 of the Convention requires that the premises of a diplomatic mission be inviolable, meaning that "the agents of the receiving state may not enter them, except with the consent of the head of the mission." This means, for example, if there's a hostage situation in the Swedish Embassy, an American SWAT team cannot go in without first getting permission from the Swedish Ambassador.
Now, that may seem simple enough to understand, but the relevance of this to landlord-tenant law is a little bit more complex. In the 1980's and 1990's, the mission to the UN of the nation of Zaire became severely delinquent in its rent for its office space in New York. The landlord sought to evict Zaire. The Second Circuit, in a ruling that has been widely accepted across the country since it was made, ruled that since enforcing the eviction would require the local police to enter the premises of the mission, this would violate Article 22 of the Convention, and as such an eviction could not be ordered.
Now, this might all make sense to you - that one cannot take action like this against the official mission - but why should this apply to a diplomat's private home? Because Article 30 of the Convention requires that "the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission." In other words, you cannot do to the home of a diplomat what you cannot do to the diplomatic mission. If you cannot forcibly evict a mission, then you cannot forcibly evict a diplomat.
Reasons to Rent to a Diplomat Anyways
Now, you might look at this and say "holy crap, if the diplomat violates his lease, I'm screwed, I should never rent to a diplomat!" I can understand the reaction. The inviolability of a diplomat means you cannot evict the diplomat if he is not paying rent, committing a crime on the property, or even just staying past the end of the lease term and refusing to leave. Nonetheless, saying you should never rent to a diplomat may be a little extreme. There's a reason this isn't a well-known issue - it doesn't come up much.
Diplomats are representatives of their countries. They are usually chosen from amongst their countries' respected citizenry, and they usually consider it to be part of their job to leave a good impression with all they encounter in their host country. The fact is, the simple moral obligation to obey their lease will be enough for most diplomats.
Moreover, many diplomats do not pay for their own housing, and you would in fact be contracting with their mission - and by agency, their home country. Most countries are pretty reliable to pay their bills - they have the money, and they are concerned with maintaining positive diplomatic relations.
Finally, even if your diplomatic tenant does become behind on rent, you can still sue and collect on your judgment via garnishment (possibly not of wages, but bank accounts, for example, remain available). You just can't evict.
Ways to Protect Yourself
So, if after reading the above you conclude that, ok, maybe it is ok to rent to a diplomat after all, you might be wondering how best to protect yourself. I'll start off by giving you one thing you cannot do. You cannot require the diplomat to waive his immunity as part of your lease. Well, that's not completely true, you can, but it would be meaningless. This is because diplomatic immunity is not a right a diplomat can waive. Diplomatic immunity belongs to the country and only the country can waive a diplomat's immunity. And no, asking a mission to sign off on a waiver for a lease is just not going to happen, so it's probably best not to try.
The first thing I would recommend doing as a landlord is finding out - if your diplomat is paying for his own housing - if his mission would be willing to co-sign the lease. As I said, missions are going to be fairly reliable payers, so having a mission as a back-up is always a good plan.
Regardless of whether or not the mission will co-sign the lease, the recognition of the potential for serious issues may warrant charging a higher than usual security deposit. The Virginia Residential Landlord and Tenant Act allows a security deposit of up to two months' rent, while a common law lease can charge anything that is not "excessive." If you are not in a VRLTA situation, I would strongly recommend considering asking for a security deposit of between 6 and 12 months of rent. I believe the risks involved could warrant an argument that such an amount is not excessive and it keeps you protected in case of a prolonged dispute. The advantage of a high security deposit is that you do not give possession of the property until the deposit is paid, and if the deposit is not paid, you don't have to evict the person, since they never got to move in to begin with.
Finally, you should consider letting the State Department know that you are willing to lease to a diplomat. The State Department likes having landlords that are willing to do so - it helps with diplomatic relations - and letting them know this in advance will make them more likely to work with you if an issue comes up. For example, if your diplomat really does stop paying rent, you can ask the State Department to request the foreign country waive the diplomat's immunity, and if they do not, declare the diplomat persona non grata and have them dismissed from the country. There's a good chance that failure to pay rent alone will not lead to an immunity waiver or a PNG declaration from the State Department, but if that diplomat's had other issues, non-payment of his rent could very well be the straw that breaks the camel's back.
Discrimination
Now, looking at the above, some of your alarm bells may have gone off about housing discrimination. Charging different people different security deposits, or simply refusing to rent to a class of people, probably sounds like a problem to you. Good, all landlords should think this way. However, at present there is no law that bars you from "discriminating" against diplomats in renting out property. As such, you can refuse to rent to diplomats, or charge higher security deposits to diplomats.
Conclusion
Diplomatic immunity has a surprising impact on landlord/tenant law. Specifically, diplomats cannot be evicted. This should cause any landlord to approach a diplomatic tenant with caution. Nonetheless, by and large diplomats are reliable payers, and landlords should not be afraid of renting to them just because of the challenges that might arise in the rare case of a bad diplomat-tenant. If you are considering renting to a diplomat and would like to discuss your options, or if you are a diplomat-tenant having trouble with your American landlord, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me to discuss your options. Your initial consultation is free for up to half an hour!
Introduction
Working so close to Washington, DC, it's only inevitable that my work occasionally brings me into a situation in which I must deal with diplomats. This inevitably means dealing with issues related to Diplomatic Immunity. Now, most people understand that Diplomatic Immunity prevents a country from arresting the diplomats of another country. What many people do not understand is that Diplomatic Immunity also has effects in the context of civil law.
The reason most people do not understand this is that Article 31 of the Vienna Convention on Diplomatic Relations provides an exception to immunity from civil jurisdiction for actions "relating to any professional or commercial activity exercised by the diplomatic agent... outside his official functions." This means most things you would sue a diplomat over (not paying a bill, for example) would likely fit into that exception. However, there are many things that don't (if a diplomat hits you with his car while he's driving to work, you'll have to sue him in his home country). Perhaps the biggest place, however, where a diplomat can use his immunity to interfere with civil actions is in landlord-tenant law. Simply put, a diplomat cannot be evicted.
Inviolability
Now, you might say, "Hey, renting a property is outside a diplomat's 'official functions' so why can't I evict a diplomat?" The answer is that there are two types of diplomatic immunity - one that protects a diplomat from being brought to court (the type we most often think of), and one that protects a diplomat from being harassed by local authorities (called "inviolability").
As discussed above, the relevant law here is the Vienna Convention on Diplomatic Relations, a treaty entered into in 1961 and ratified by most of the world, including the United States. As a federally-ratified treaty, the Convention pre-empts any state law to the contrary. Article 22 of the Convention requires that the premises of a diplomatic mission be inviolable, meaning that "the agents of the receiving state may not enter them, except with the consent of the head of the mission." This means, for example, if there's a hostage situation in the Swedish Embassy, an American SWAT team cannot go in without first getting permission from the Swedish Ambassador.
Now, that may seem simple enough to understand, but the relevance of this to landlord-tenant law is a little bit more complex. In the 1980's and 1990's, the mission to the UN of the nation of Zaire became severely delinquent in its rent for its office space in New York. The landlord sought to evict Zaire. The Second Circuit, in a ruling that has been widely accepted across the country since it was made, ruled that since enforcing the eviction would require the local police to enter the premises of the mission, this would violate Article 22 of the Convention, and as such an eviction could not be ordered.
Now, this might all make sense to you - that one cannot take action like this against the official mission - but why should this apply to a diplomat's private home? Because Article 30 of the Convention requires that "the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission." In other words, you cannot do to the home of a diplomat what you cannot do to the diplomatic mission. If you cannot forcibly evict a mission, then you cannot forcibly evict a diplomat.
Reasons to Rent to a Diplomat Anyways
Now, you might look at this and say "holy crap, if the diplomat violates his lease, I'm screwed, I should never rent to a diplomat!" I can understand the reaction. The inviolability of a diplomat means you cannot evict the diplomat if he is not paying rent, committing a crime on the property, or even just staying past the end of the lease term and refusing to leave. Nonetheless, saying you should never rent to a diplomat may be a little extreme. There's a reason this isn't a well-known issue - it doesn't come up much.
Diplomats are representatives of their countries. They are usually chosen from amongst their countries' respected citizenry, and they usually consider it to be part of their job to leave a good impression with all they encounter in their host country. The fact is, the simple moral obligation to obey their lease will be enough for most diplomats.
Moreover, many diplomats do not pay for their own housing, and you would in fact be contracting with their mission - and by agency, their home country. Most countries are pretty reliable to pay their bills - they have the money, and they are concerned with maintaining positive diplomatic relations.
Finally, even if your diplomatic tenant does become behind on rent, you can still sue and collect on your judgment via garnishment (possibly not of wages, but bank accounts, for example, remain available). You just can't evict.
Ways to Protect Yourself
So, if after reading the above you conclude that, ok, maybe it is ok to rent to a diplomat after all, you might be wondering how best to protect yourself. I'll start off by giving you one thing you cannot do. You cannot require the diplomat to waive his immunity as part of your lease. Well, that's not completely true, you can, but it would be meaningless. This is because diplomatic immunity is not a right a diplomat can waive. Diplomatic immunity belongs to the country and only the country can waive a diplomat's immunity. And no, asking a mission to sign off on a waiver for a lease is just not going to happen, so it's probably best not to try.
The first thing I would recommend doing as a landlord is finding out - if your diplomat is paying for his own housing - if his mission would be willing to co-sign the lease. As I said, missions are going to be fairly reliable payers, so having a mission as a back-up is always a good plan.
Regardless of whether or not the mission will co-sign the lease, the recognition of the potential for serious issues may warrant charging a higher than usual security deposit. The Virginia Residential Landlord and Tenant Act allows a security deposit of up to two months' rent, while a common law lease can charge anything that is not "excessive." If you are not in a VRLTA situation, I would strongly recommend considering asking for a security deposit of between 6 and 12 months of rent. I believe the risks involved could warrant an argument that such an amount is not excessive and it keeps you protected in case of a prolonged dispute. The advantage of a high security deposit is that you do not give possession of the property until the deposit is paid, and if the deposit is not paid, you don't have to evict the person, since they never got to move in to begin with.
Finally, you should consider letting the State Department know that you are willing to lease to a diplomat. The State Department likes having landlords that are willing to do so - it helps with diplomatic relations - and letting them know this in advance will make them more likely to work with you if an issue comes up. For example, if your diplomat really does stop paying rent, you can ask the State Department to request the foreign country waive the diplomat's immunity, and if they do not, declare the diplomat persona non grata and have them dismissed from the country. There's a good chance that failure to pay rent alone will not lead to an immunity waiver or a PNG declaration from the State Department, but if that diplomat's had other issues, non-payment of his rent could very well be the straw that breaks the camel's back.
Discrimination
Now, looking at the above, some of your alarm bells may have gone off about housing discrimination. Charging different people different security deposits, or simply refusing to rent to a class of people, probably sounds like a problem to you. Good, all landlords should think this way. However, at present there is no law that bars you from "discriminating" against diplomats in renting out property. As such, you can refuse to rent to diplomats, or charge higher security deposits to diplomats.
Conclusion
Diplomatic immunity has a surprising impact on landlord/tenant law. Specifically, diplomats cannot be evicted. This should cause any landlord to approach a diplomatic tenant with caution. Nonetheless, by and large diplomats are reliable payers, and landlords should not be afraid of renting to them just because of the challenges that might arise in the rare case of a bad diplomat-tenant. If you are considering renting to a diplomat and would like to discuss your options, or if you are a diplomat-tenant having trouble with your American landlord, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me to discuss your options. Your initial consultation is free for up to half an hour!
Wednesday, October 2, 2013
The Paycheck Stops but the Bills Don't - Government Shutdowns and Child/Spousal Support
As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees. Federal employees face an unusual array of challenges when it comes to family law to begin with. Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs. Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).
The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay. There are options available to you, however, and I hope to cover those in this blog post.
Option 1 - Agreement
Perhaps the simplest way to solve this problem would be an agreement with the other party. If you are on good terms with your ex, this may be a viable option. You should contact your ex immediately to discuss the issue. A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.
Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.
Option 2 - Court Order
A court ordering support is required by law to consider only your "current" situation. If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly. Unfortunately, that's where the simplicity of this solution ends. Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard. An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing). Once the shutdown ends, you can then withdraw your motion.
This is a complicated process, however, and the odds that you will make a mistake without representation are high. If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.
Option 3 - Suck it up and Pay
If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee). There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.
Option 4 - Unilateral Non-payment
This is the most dangerous option. If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay. Maybe DCSE and/or your ex won't take any action, but there is a chance they will. If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest). You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own. There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.
Conclusion
The government shutdown presents a unique challenge to federal employees who owe support. The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it. Nonetheless, there are options, and you should know them before you take action. If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation. Your initial consultation is free for up to half an hour!
Introduction
As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees. Federal employees face an unusual array of challenges when it comes to family law to begin with. Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs. Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).
The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay. There are options available to you, however, and I hope to cover those in this blog post.
Option 1 - Agreement
Perhaps the simplest way to solve this problem would be an agreement with the other party. If you are on good terms with your ex, this may be a viable option. You should contact your ex immediately to discuss the issue. A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.
Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.
Option 2 - Court Order
A court ordering support is required by law to consider only your "current" situation. If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly. Unfortunately, that's where the simplicity of this solution ends. Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard. An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing). Once the shutdown ends, you can then withdraw your motion.
This is a complicated process, however, and the odds that you will make a mistake without representation are high. If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.
Option 3 - Suck it up and Pay
If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee). There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.
Option 4 - Unilateral Non-payment
This is the most dangerous option. If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay. Maybe DCSE and/or your ex won't take any action, but there is a chance they will. If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest). You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own. There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.
Conclusion
The government shutdown presents a unique challenge to federal employees who owe support. The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it. Nonetheless, there are options, and you should know them before you take action. If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation. Your initial consultation is free for up to half an hour!
Tuesday, September 24, 2013
Paying for Your Divorce the Rest of Your Life - Spousal Support 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, the legal principles discussed in this blog post are applicable only to the Commonwealth of Virginia.
Update: Some of the information in the below blog post is now outdated due to changes in the law. Please see my 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?" I'll get the reverse question if my consult is with the spouse who makes less. Unfortunately, the answer I always have to give, as is so often the case, is "it depends." However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).
Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount. Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover). This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely. Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.
Four Different Spousal Support Situations
To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely. Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).
To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief. This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!
Contractual Spousal Support
Contractual spousal support is probably the easiest of these topics to cover. If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement. Note, however, the court will enforce it precisely. If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.
This is very important to understand. I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore. I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification. Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.
Spousal Support Pendente Lite
Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time. As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court. Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.
In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula. Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income. When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.
The law laid out for pendente lite cases in the Circuit Court is not as clear cut. Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse." As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings. Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide). Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc. Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not. Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.
J&DR Court Spousal Support
Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law. Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support." That's it, no further guidance from the law. Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.
Circuit Court Support
In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E). These factors are, essentially:
- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider
In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.
After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.
As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.
Duration of Spousal Support Award
The next question I get asked, however, is for how long spousal support is going to be paid. The answer, again, is "it depends." For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it. For pendente lite support, the amount will last until the case is over. For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court. For Separate Maintenance and Divorce, it depends.
Until a few decades ago, spousal support was always permanent. It was in place until a terminating event occurred, or the court modified it to $0. Nowadays, permanent support is fairly rare. Instead, the court considers the same factors discussed above when deciding the duration of support. The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.
A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example). This is just a rule of thumb, however, and should not be relied on outside the negotiating arena. I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages. It really depends on the judge and the circumstances of your case.
Terminating Events
Now, you've heard me mention a few times "terminating events." These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration. These events, which are laid out in Virginia Code Section 20-109(A) & (D) are: a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months. If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.
The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision. Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions. In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived. This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee! Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee." Same for the other conditions.
Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient. If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies. If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage. Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!
Why Separate Maintenance
Now, you've also seen me talk several times about "separate maintenance." You might be wondering why someone would file a Separate Maintenance case instead of for divorce. Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support. The parties have to wait for a year of separation before they can even file for support. Separate Maintenance allows one spouse to get support from the other while the parties are still married. This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.
There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable. For example, many health insurance plans do not allow someone to cover an ex-spouse. A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.
Conclusion
Spousal support law in Virginia is extremely complicated. There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought. Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning. If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office. Your initial consultation is free for up to half an hour!
Update: Some of the information in the below blog post is now outdated due to changes in the law. Please see my 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?" I'll get the reverse question if my consult is with the spouse who makes less. Unfortunately, the answer I always have to give, as is so often the case, is "it depends." However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).
Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount. Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover). This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely. Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.
Four Different Spousal Support Situations
To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely. Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).
To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief. This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!
Contractual Spousal Support
Contractual spousal support is probably the easiest of these topics to cover. If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement. Note, however, the court will enforce it precisely. If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.
This is very important to understand. I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore. I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification. Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.
Spousal Support Pendente Lite
Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time. As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court. Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.
In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula. Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income. When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.
The law laid out for pendente lite cases in the Circuit Court is not as clear cut. Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse." As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings. Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide). Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc. Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not. Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.
J&DR Court Spousal Support
Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law. Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support." That's it, no further guidance from the law. Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.
Circuit Court Support
In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E). These factors are, essentially:
- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider
In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.
After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.
As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.
Duration of Spousal Support Award
The next question I get asked, however, is for how long spousal support is going to be paid. The answer, again, is "it depends." For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it. For pendente lite support, the amount will last until the case is over. For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court. For Separate Maintenance and Divorce, it depends.
Until a few decades ago, spousal support was always permanent. It was in place until a terminating event occurred, or the court modified it to $0. Nowadays, permanent support is fairly rare. Instead, the court considers the same factors discussed above when deciding the duration of support. The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.
A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example). This is just a rule of thumb, however, and should not be relied on outside the negotiating arena. I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages. It really depends on the judge and the circumstances of your case.
Terminating Events
Now, you've heard me mention a few times "terminating events." These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration. These events, which are laid out in Virginia Code Section 20-109(A) & (D) are: a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months. If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.
The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision. Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions. In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived. This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee! Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee." Same for the other conditions.
Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient. If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies. If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage. Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!
Why Separate Maintenance
Now, you've also seen me talk several times about "separate maintenance." You might be wondering why someone would file a Separate Maintenance case instead of for divorce. Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support. The parties have to wait for a year of separation before they can even file for support. Separate Maintenance allows one spouse to get support from the other while the parties are still married. This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.
There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable. For example, many health insurance plans do not allow someone to cover an ex-spouse. A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.
Conclusion
Spousal support law in Virginia is extremely complicated. There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought. Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning. If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office. Your initial consultation is free for up to half an hour!
Wednesday, September 18, 2013
What Your Potential Lawyer Isn't Telling You - The Ethics of Legal Advertising
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Note: This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post. Please remember, you can submit "ask the lawyer" questions to me any time you want. The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive? All I see is a vague reference to the 'Rules of Professional Conduct.'"
Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising. The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring. Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.? But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.
While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading." The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue. This is the same as most industries. The rule against "misleading" advertising, however, is where the rules get convoluted. "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think. Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."
"Misleading" Advertising - Subjective Statements
Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements. These are statements about the quality of their work. They cannot say they do "good" work, that they "are great," etc. They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them. This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements. This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.
"Misleading" Advertising - Unexplained Objective Statements
You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear. This would be wrong. There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers. For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday." Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday." Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.
"Misleading" Advertising - "Vulnerable" Targets
Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to. In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them. This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free. For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail). Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.
Forums We "Control"
The final issue to address today gets back to the question that sparked this post. Why does all of the above mean that I cannot allow subjective comments on my blog? Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules. In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules. Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.
As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now. These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.
Conclusion
This post is essentially a long answer to a short question - why can't people comment about me on my blog? I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising. If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.
Introduction
Note: This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post. Please remember, you can submit "ask the lawyer" questions to me any time you want. The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive? All I see is a vague reference to the 'Rules of Professional Conduct.'"
Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising. The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring. Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.? But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.
While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading." The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue. This is the same as most industries. The rule against "misleading" advertising, however, is where the rules get convoluted. "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think. Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."
"Misleading" Advertising - Subjective Statements
Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements. These are statements about the quality of their work. They cannot say they do "good" work, that they "are great," etc. They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them. This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements. This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.
"Misleading" Advertising - Unexplained Objective Statements
You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear. This would be wrong. There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers. For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday." Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday." Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.
"Misleading" Advertising - "Vulnerable" Targets
Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to. In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them. This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free. For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail). Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.
Forums We "Control"
The final issue to address today gets back to the question that sparked this post. Why does all of the above mean that I cannot allow subjective comments on my blog? Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules. In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules. Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.
As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now. These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.
Conclusion
This post is essentially a long answer to a short question - why can't people comment about me on my blog? I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising. If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.
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