As always, before reading this post please review my disclaimer by following the above link or by clicking on this link. As always, legal principles discussed may apply only to the Commonwealth of Virginia.
Introduction
Last week, my blog took a very serious turn, so this week, I've decided to do my fifth Legal FAQ (Part IV can be found here), and to lighten the mood a bit by tackling some "celebrity" issues, instead of ones you are more likely to face in your day to day life.
How can the NBA legally force Donald Sterling to sell his team?
I've gotten this one a lot - Donald Sterling is a private business owner, who legitimately owns his own business, specifically, the Los Angeles Clippers. How can another group of people just force him to sell? Well, the answer does not lie in any general legal principles, but rather one of contract law. Before you can buy an NBA team, you must agree to sign on to a contract with the NBA itself setting various rules and regulations. This is the case because the prior owner will have signed that same contract, and part of that contract requires someone selling a team to require the person buying the team to sign the contract. At the very beginning, when a team is first formed, that team's owner must sign the contract in order for the team to be allowed to play in the NBA - and the owner will want to sign that contract, because otherwise he has a basketball team with no league to play in.
So, the whole thing relates to the contract Sterling signed with the NBA when he bought the Clippers. It is what allows the NBA to, in some cases, force an owner to sell a team. This is because owning an NBA team is a very unique situation in the United States, and as a result, it is one of the circumstances where a contract can be enforced with a specific performance order.
Now, you might be thinking, ok, then it seems open and shut that the NBA can force Sterling to sell, so why does he say he's going to fight? What ground does he have to stand on? Well, the contract is not "at will." In other words, the NBA cannot force an owner to sell the team just because the NBA doesn't like the guy. Rather the contract lays out in detail the situations in which an NBA owner can be forced to sell. The fight is whether or not any of those sections apply to this situation. Specifically, the contract allows the NBA to force a sale when the owner has done something that "damages the league." Mr. Sterling argues, however, that comments made in private, not meant for public consumption, cannot qualify as such a violation. In other words, Mr. Sterling is arguing that there is an intent component to the contract provision, while the NBA argues there is not. I would suggest this case is not clear cut in any sense, but I give a slight edge to the NBA.
Didn't A&E violate Phil Robertson's Free Speech rights when it suspended his show for comments he made in another forum?
No. Let me just get that out of the way first. This is a question I get far outside of just Phil Robertson, however. It can be applied just as much to Don Imus, Paula Deen, Martin Bashir and Bill Maher, all of whom have been fired over some stupid thing they've said or another. The question usually goes "we're supposed to have freedom of speech in this country, yet this happened" and then turns into a rant about "political correctness" run amok.
Let me be clear - you have absolutely every right to say whatever you want (obviously with some exceptions when it comes to threats of violence, for example) and not be punished for it in any way by the government. The First Amendment does not however, prevent you from suffering the consequences of your poor choice of words from the general public or your private employer. If your boss thinks your comments have harmed the company, you can be fired, period. The Bill of Rights protects you from the government, not private entities. In fact, the only part of the entire Constitution that, on its own, protects people from other people is the Thirteenth Amendment, which bans all slavery in the country. That's it. Every other right the Constitution gives you is a protection from the government, not from other people.
Isn't it terrible that the hoax lawsuit against Johnny Manziel actually got into court?
In case you haven't heard, a lawsuit was filed against Johnny Manziel in Florida accusing him of sexual harassment. A quick read of the lawsuit made quite clear, however, that the lawsuit was most likely a complete hoax - something that appears to have later been confirmed. The reaction, however, was frustrating to me as an attorney. People were outraged that the court had accepted the lawsuit, that it had been "dignified" by a case number and a date stamp. This outrage is misplaced.
Clerks of court are not lawyers, they are not learned in the law, they are not legally allowed to make legal determinations. As a result, clerks do not have a right to turn away lawsuits unless they don't meet specific filing requirements - for example, the filing fee is not paid. A clerk absolutely cannot analyze the lawsuit itself to see if it is valid. Only a judge can dismiss a lawsuit.
I would suggest changing this practice would be very dangerous. Our country has a long, unpleasant history of depriving certain people of access to our courts. It would be far too easy for a renegade clerk's office to go down that path if given the power to decline lawsuits. I already see too many cases where a clerk, not quite understanding a pro se party, has turned away a case that should not have been turned away. Giving clerks the power to do this on the merits would be far too dangerous. If our Fourteenth Amendment right to Due Process is to mean anything, it should at least mean that anyone can get in front of a judge. If they really are wasting the court's time, we have ways to make them pay for it.
Isn't it terrible that Vincent Sheheen (candidate for South Carolina Governor) helped get murderers and child rapists off the hook by being their defense lawyer?
In case you haven't heard, the Republican Governor's Association has run a series of ads in South Carolina attacking Democratic Gubernatorial candidate Vincent Sheheen for work he did as a defense attorney. Regardless of your political affiliation, this should scare you. The Sixth Amendment right to counsel is a core component of our rights. It is what stands between an unsophisticated accused and an all-powerful state. It is, in some cases, the only protection that a falsely accused person has against their charges. Attacking a defense lawyer for doing his job is about as low as you can sink.
Unfortunately, this kind of attack is not new, and I have seen it carried out by members of both parties. I would like to ask the people who actually vote on this logic what their preference would be - that defendants have no lawyer at all? Would they really want a world where all attorneys decide not to defend people accused of bad things, so that if they, themselves, were accused, they would have nowhere to turn?
Our legal system relies on attorneys being willing to represent even the worst of the worst. That is the only way we can make sure that the truly innocent are protected too. This is a core, fundamental belief of our nation - whether it comes from the image of Atticus Finch defending an accused rapist in To Kill a Mockingbird, or the decision of John Adams, one of our founding fathers, to represent the British soldiers accused of perpetrating the Boston Massacre.
I would note that Nikki Haley, the Republican candidate for Governor in South Carolina, has not run such ads herself, but she has not condemned them either. I would hope that she does. In the meantime, I would hope everyone is wary of such attacks and really thinks about what the implications of such attacks truly are.
Conclusion
And that concludes today's FAQ. I hope you have found it at least somewhat entertaining. As always, if you have questions you would like me to address on the blog, feel free to ask the lawyer.
Wednesday, May 28, 2014
Thursday, May 22, 2014
Virginia Protective Orders and Restraining Orders - A Brief Overview
As always, before reading this post please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed here apply only to the Commonwealth of Virginia.
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
- Your spouse
- Your ex-spouse
- Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
- Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
- The other parent of any of your children, whether or not you were ever married to that person
- Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
- Define the only circumstances in which contact may be "necessary"
- Forbid the respondent from coming within a certain distance of the petitioner
- Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
- Make additional orders that the court thinks is necessary to protect the petitioner and his family members
- Grant the petitioner exclusive use and possession of the joint residence
- Require the respondent to pay all utility bills for the joint residence
- Grant the petitioner exclusive use of a jointly owned vehicle
- Require the respondent to pay to house the petitioner in a new residence
- Award the petitioner temporary legal and/or physical custody of any children
- Award the petitioner temporary child support and/or spousal support
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, May 15, 2014
Affirmative Defenses in Virginia: Statute of Limitations, Illegal Contract, Payment, and Other Defenses You Must Prove
As always, prior to reading this post please review my disclaimer 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
Many people at risk of being sued seem to think that if a certain thing happens, they are safe. "If I pay, I can't be sued," or "the statute of limitations has passed, I can't be sued." In reality, however, this is incorrect. You can essentially be sued at any time for anything. If you are sued improperly, however, there are two ways you can defend yourself. First, you can deny the allegations of the lawsuit. Second, you can present an "affirmative defense," something that, even if the allegations of the lawsuit are true, means you are immune from suit. Of course, you can also do a combination of the two.
Affirmative defenses are important to understand for three reasons. First, they can protect you even if the allegations of the lawsuit against you are true. Second, they are fully waivable - meaning if you have an affirmative defense available to you but you don't use it, you lose it. Third, unlike the core of the lawsuit, where the burden is on the plaintiff to prove the truth of his or her allegations, with an affirmative defense the burden is on you, the defendant, to prove its truth.
In today's blog post, I will talk about how to assert affirmative defenses, provide an incomplete list of those defenses, and get into the details of a few of them.
How to Assert an Affirmative Defense
So the first question you might have is, if you have an affirmative defense available, and you know that it's a "use it or lose it" situation, how do you actually "use it"? Well, if you're a regular reader of my blog, you won't be surprised to learn that this answer varies somewhat depending on what court your case is in.
In the Circuit Court, you must assert your affirmative defenses in your Answer when you file your Answer. If you file an Answer (as opposed to another responsive pleading, something I won't get into today) but leave out any affirmative defense, you lose that defense. This fact causes many attorneys in Virginia to answer lawsuits with just a list of many possible defenses, even if they have no reason to think that any one of the given defenses applies to the case, since they can drop that defense if they are actually challenged on it. To me, this practice borders on unethical, since lawyers are not supposed to sign pleadings we know to contain frivolous positions, and as such is something I do not do, but I can understand why an attorney looking to make sure he is providing all possible protection to his client would do it.
In the General District Court and the General District Court's Small Claims Division, you don't need to do anything prior to trial. At trial, you can assert your defense then. The exception would be if "pleadings" are ordered in the General District Court. If so, then you must include all such defenses in your "Answer and Grounds of Defense" (the affirmative defenses are the "grounds of defense"), or else they are waived.
It is unusual to have affirmative defenses apply in the Juvenile & Domestic Relations District Court, but not unheard of (in fact, I've used a couple myself just recently). In those situations, how you assert them really varies on a case by case basis. Sometimes you can wait until trial, sometimes you need to include them in a responsive pleading. Really, it's best to ask an attorney what to do in any given situation.
What Are The Affirmative Defenses?
So, what are the affirmative defenses available in Virginia? Unfortunately, there is no comprehensive list, and new ones appear in cases every now and then. The basic way to think of it, though, is that if you have a defense available to you that would allow you to win even if the allegations of the lawsuit were true, then that's going to be an affirmative defense. Another way to think about it is if the lawsuit says something didn't happen, and you say it did, then you probably have an affirmative defense (since proving something happening is easier than proving something not happening).
Unfortunately, neither of these general rules are anywhere near perfect, and you're best off asking an attorney. However, I do have a partial (emphasis on partial) list of 16 common affirmative defenses in Virginia:
So, What Are These Defenses?
Some of the above defenses are pretty self-explanatory. Others, their name really does not tell you anything about them. So here's a brief description of each:
Statute of Limitations - A period of time set by law after which a certain type of lawsuit cannot be brought. Note, however, that since this is an affirmative defense, failure to raise it in your Answer in Circuit Court, for example, waives it. So, you could be sued for breach of contract (5 year statute of limitations if contract is written) 20 years later, and if you don't raise the defense the court won't do it for you and the lawsuit will proceed.
Payment of the Debt or Obligation - This is fairly self-explanatory - the lawsuit accuses you of not paying money you owed, but you know you actually did pay. As I explained back in January, this is why it is very important to keep good records. Since payment is an affirmative defense, it is on you to prove you paid, not on the other side to prove you didn't.
Accord and Satisfaction - This is a bit of a subset of the above - basically you are saying you settled this dispute and have not violated that settlement. Accord and satisfaction is a two-part defense. First you must prove that there was an agreement regarding settlement of this issue - the "accord." Then you must prove that you are in compliance with your responsibilities under that agreement - the "satisfaction."
Assumption of the Risk - This is a fairly complicated defense that has fallen out of favor with the courts over the past couple of decades, but is still in use. This is a defense to a negligence claim that basically says the plaintiff knew what he or she was getting into. The classic "assumption of the risk" case is a slip and fall in a grocery store where liquid has been negligently left on the floor. If the defendant can prove that the plaintiff knew the liquid was there but chose to walk there anyways, there's a good assumption of the risk defense. This, by the way, is a very good reason for stores to always put out a "wet floor" warning sign.
Duress or Undue Influence - These are defenses in a contract case that basically say you didn't actually consent to the contract, but rather you signed it because you had to in order to avoid unrelated bad consequences. The classic duress case is someone holding a gun to your head and telling you to sign, but it's really almost any situation in which you signed because you were reasonably fearful of the consequences of failure to sign. Undue influence occurs when someone has so much influence over you they are able to overwhelm your independent thought and get you to sign. As you can probably guess, this is hard to prove, but is most commonly found in contracts signed by elderly parents at the suggestion of their children.
Fraud - This is a contract defense whereby you cannot be said to have actually consented to the contract because part of your reason for consent was based on a lie told to you by the plaintiff. Proving fraud is hard, but you essentially must show that the other side knowingly lied to you or knowingly prevented you from learning the truth, and that if you had known the truth you would not have signed.
Contract in Violation of Public Policy - This is a vague concept that encapsulates many ideas. Basically, it's where you tell a court "sure, this is an otherwise valid contract, but enforcing it would violate the 'public policy' of the state." As you can probably guess, this is hard to prove because defining "public policy" is hard - it comes from a combination of legislation and court rulings. There are some obvious ones, however. For example, contracts that waive a custodial parent's right to collect child support from the non-custodial parent are always a violation of public policy.
Lack of Consideration - This is another contract defense. Unilateral promises and gifts are generally not enforceable in court (there are exceptions to this, but this is the general rule), and "consideration" is what differentiates a contract from a unilateral promise or gift. Consideration is the rule that in a contract, each party must receive a benefit from the contract (for example, in a purchase contract, the purchaser receives the item purchased and the seller receives money). So, if you believe that there was no consideration, you can raise that as an affirmative defense. Note, however, that the defense is only available if it was you who did not receive consideration. You cannot claim the plaintiff did not receive consideration from the contract as your defense.
Failure to Mitigate Damages - As I have briefly alluded to before, typically when a contract is breached it is on the non-breaching party to take action to minimize the damage they suffer. If the plaintiff has failed to do that, it is on you to prove what the plaintiff could have done to mitigate his or her damages, and how much that would have mitigated the damages.
Contributory Negligence - This is a defense to a negligence claim where you state that the plaintiff was also negligent, and that negligence contributed, even if only a small bit, to the injury the plaintiff suffered. If you can prove this, contributory negligence is a complete defense.
Waiver of the Claim - This is a defense that states that an act or omission of the plaintiff legally (or contractually) waived the right of the plaintiff to bring suit. You must prove that this act or omission actually occurred, and show the court why such act or omission is a waiver.
Res Judicata - This is a defense that claims that you have already been sued by this same plaintiff for this same thing, and there was a final ruling on the matter. You must prove that the previous lawsuit occurred, that it was for the exact same thing, and that the order resolving that lawsuit was a final order (for example, if it was dismissed "without prejudice" then res judicata does not apply).
Performed as Required - If a breach of contract suit claims you were supposed to do something (for example, build a house) and that you did not, but you claim you actually did do what you were supposed to do, it is on you to prove that you did it.
Privilege in a Defamation Case - Privilege is a type of defense in defamation that says a certain type of statement or communication cannot be the basis of a defamation claim even if the statement or communication is false and defamatory. Examples of privileged communications are statements made by an insurance company explaining why they chose not to renew a policy, any relevant statement made in court, or statements made on public airwaves by or on behalf of candidates for public office (this immunity applies only to the radio and tv broadcasters, not the actual producers of the ad).
Illegal Contract - This is a subset of the public policy violation discussed above. Basically a contract will not be enforced if you can prove that it requires conduct that is illegal. The classic example of this is a gambling contract (for example, "If the Washington Capitals win the Stanley Cup, I will pay you $500, but if they do not, you will pay me $50") in a state where gambling is illegal, or at least not legally recognized (such as Virginia).
Debt Discharged in Bankruptcy - This is easy to understand but very important. If you filed a bankruptcy and that bankruptcy discharged a debt, then you are sued for that debt, it is on you to prove both that you filed the bankruptcy and that this debt was actually discharged. If you waive this defense, the lawsuit can go forward even though the debt was supposed to be discharged.
Conclusion
Affirmative defenses are a confusing and often difficult part of law for non-lawyers to understand. This is yet another reason why it's safest when you are sued to hire an attorney - there may be an affirmative defense available to you that you did not even know about! If you have been sued and want to know if you have an affirmative defense available to you, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Many people at risk of being sued seem to think that if a certain thing happens, they are safe. "If I pay, I can't be sued," or "the statute of limitations has passed, I can't be sued." In reality, however, this is incorrect. You can essentially be sued at any time for anything. If you are sued improperly, however, there are two ways you can defend yourself. First, you can deny the allegations of the lawsuit. Second, you can present an "affirmative defense," something that, even if the allegations of the lawsuit are true, means you are immune from suit. Of course, you can also do a combination of the two.
Affirmative defenses are important to understand for three reasons. First, they can protect you even if the allegations of the lawsuit against you are true. Second, they are fully waivable - meaning if you have an affirmative defense available to you but you don't use it, you lose it. Third, unlike the core of the lawsuit, where the burden is on the plaintiff to prove the truth of his or her allegations, with an affirmative defense the burden is on you, the defendant, to prove its truth.
In today's blog post, I will talk about how to assert affirmative defenses, provide an incomplete list of those defenses, and get into the details of a few of them.
How to Assert an Affirmative Defense
So the first question you might have is, if you have an affirmative defense available, and you know that it's a "use it or lose it" situation, how do you actually "use it"? Well, if you're a regular reader of my blog, you won't be surprised to learn that this answer varies somewhat depending on what court your case is in.
In the Circuit Court, you must assert your affirmative defenses in your Answer when you file your Answer. If you file an Answer (as opposed to another responsive pleading, something I won't get into today) but leave out any affirmative defense, you lose that defense. This fact causes many attorneys in Virginia to answer lawsuits with just a list of many possible defenses, even if they have no reason to think that any one of the given defenses applies to the case, since they can drop that defense if they are actually challenged on it. To me, this practice borders on unethical, since lawyers are not supposed to sign pleadings we know to contain frivolous positions, and as such is something I do not do, but I can understand why an attorney looking to make sure he is providing all possible protection to his client would do it.
In the General District Court and the General District Court's Small Claims Division, you don't need to do anything prior to trial. At trial, you can assert your defense then. The exception would be if "pleadings" are ordered in the General District Court. If so, then you must include all such defenses in your "Answer and Grounds of Defense" (the affirmative defenses are the "grounds of defense"), or else they are waived.
It is unusual to have affirmative defenses apply in the Juvenile & Domestic Relations District Court, but not unheard of (in fact, I've used a couple myself just recently). In those situations, how you assert them really varies on a case by case basis. Sometimes you can wait until trial, sometimes you need to include them in a responsive pleading. Really, it's best to ask an attorney what to do in any given situation.
What Are The Affirmative Defenses?
So, what are the affirmative defenses available in Virginia? Unfortunately, there is no comprehensive list, and new ones appear in cases every now and then. The basic way to think of it, though, is that if you have a defense available to you that would allow you to win even if the allegations of the lawsuit were true, then that's going to be an affirmative defense. Another way to think about it is if the lawsuit says something didn't happen, and you say it did, then you probably have an affirmative defense (since proving something happening is easier than proving something not happening).
Unfortunately, neither of these general rules are anywhere near perfect, and you're best off asking an attorney. However, I do have a partial (emphasis on partial) list of 16 common affirmative defenses in Virginia:
- Statute of Limitations
- Payment of the Debt or Obligation
- Accord and Satisfaction
- Assumption of the Risk
- Duress or Undue Influence in a Contract Case
- Fraud
- Contract in Violation of Public Policy
- Lack of Consideration in Contract
- Failure to Mitigate Damages
- Contributory Negligence
- Waiver of the Claim
- Res Judicata
- Performed as Required Under Contract
- Privilege in a Defamation Case (note that "truth" is no longer an affirmative defense, but rather "falsity" is now a component of the core case in defamation)
- Contract Requires Illegal Conduct (subset of public policy violation)
- Debt Discharged in Bankruptcy
So, What Are These Defenses?
Some of the above defenses are pretty self-explanatory. Others, their name really does not tell you anything about them. So here's a brief description of each:
Statute of Limitations - A period of time set by law after which a certain type of lawsuit cannot be brought. Note, however, that since this is an affirmative defense, failure to raise it in your Answer in Circuit Court, for example, waives it. So, you could be sued for breach of contract (5 year statute of limitations if contract is written) 20 years later, and if you don't raise the defense the court won't do it for you and the lawsuit will proceed.
Payment of the Debt or Obligation - This is fairly self-explanatory - the lawsuit accuses you of not paying money you owed, but you know you actually did pay. As I explained back in January, this is why it is very important to keep good records. Since payment is an affirmative defense, it is on you to prove you paid, not on the other side to prove you didn't.
Accord and Satisfaction - This is a bit of a subset of the above - basically you are saying you settled this dispute and have not violated that settlement. Accord and satisfaction is a two-part defense. First you must prove that there was an agreement regarding settlement of this issue - the "accord." Then you must prove that you are in compliance with your responsibilities under that agreement - the "satisfaction."
Assumption of the Risk - This is a fairly complicated defense that has fallen out of favor with the courts over the past couple of decades, but is still in use. This is a defense to a negligence claim that basically says the plaintiff knew what he or she was getting into. The classic "assumption of the risk" case is a slip and fall in a grocery store where liquid has been negligently left on the floor. If the defendant can prove that the plaintiff knew the liquid was there but chose to walk there anyways, there's a good assumption of the risk defense. This, by the way, is a very good reason for stores to always put out a "wet floor" warning sign.
Duress or Undue Influence - These are defenses in a contract case that basically say you didn't actually consent to the contract, but rather you signed it because you had to in order to avoid unrelated bad consequences. The classic duress case is someone holding a gun to your head and telling you to sign, but it's really almost any situation in which you signed because you were reasonably fearful of the consequences of failure to sign. Undue influence occurs when someone has so much influence over you they are able to overwhelm your independent thought and get you to sign. As you can probably guess, this is hard to prove, but is most commonly found in contracts signed by elderly parents at the suggestion of their children.
Fraud - This is a contract defense whereby you cannot be said to have actually consented to the contract because part of your reason for consent was based on a lie told to you by the plaintiff. Proving fraud is hard, but you essentially must show that the other side knowingly lied to you or knowingly prevented you from learning the truth, and that if you had known the truth you would not have signed.
Contract in Violation of Public Policy - This is a vague concept that encapsulates many ideas. Basically, it's where you tell a court "sure, this is an otherwise valid contract, but enforcing it would violate the 'public policy' of the state." As you can probably guess, this is hard to prove because defining "public policy" is hard - it comes from a combination of legislation and court rulings. There are some obvious ones, however. For example, contracts that waive a custodial parent's right to collect child support from the non-custodial parent are always a violation of public policy.
Lack of Consideration - This is another contract defense. Unilateral promises and gifts are generally not enforceable in court (there are exceptions to this, but this is the general rule), and "consideration" is what differentiates a contract from a unilateral promise or gift. Consideration is the rule that in a contract, each party must receive a benefit from the contract (for example, in a purchase contract, the purchaser receives the item purchased and the seller receives money). So, if you believe that there was no consideration, you can raise that as an affirmative defense. Note, however, that the defense is only available if it was you who did not receive consideration. You cannot claim the plaintiff did not receive consideration from the contract as your defense.
Failure to Mitigate Damages - As I have briefly alluded to before, typically when a contract is breached it is on the non-breaching party to take action to minimize the damage they suffer. If the plaintiff has failed to do that, it is on you to prove what the plaintiff could have done to mitigate his or her damages, and how much that would have mitigated the damages.
Contributory Negligence - This is a defense to a negligence claim where you state that the plaintiff was also negligent, and that negligence contributed, even if only a small bit, to the injury the plaintiff suffered. If you can prove this, contributory negligence is a complete defense.
Waiver of the Claim - This is a defense that states that an act or omission of the plaintiff legally (or contractually) waived the right of the plaintiff to bring suit. You must prove that this act or omission actually occurred, and show the court why such act or omission is a waiver.
Res Judicata - This is a defense that claims that you have already been sued by this same plaintiff for this same thing, and there was a final ruling on the matter. You must prove that the previous lawsuit occurred, that it was for the exact same thing, and that the order resolving that lawsuit was a final order (for example, if it was dismissed "without prejudice" then res judicata does not apply).
Performed as Required - If a breach of contract suit claims you were supposed to do something (for example, build a house) and that you did not, but you claim you actually did do what you were supposed to do, it is on you to prove that you did it.
Privilege in a Defamation Case - Privilege is a type of defense in defamation that says a certain type of statement or communication cannot be the basis of a defamation claim even if the statement or communication is false and defamatory. Examples of privileged communications are statements made by an insurance company explaining why they chose not to renew a policy, any relevant statement made in court, or statements made on public airwaves by or on behalf of candidates for public office (this immunity applies only to the radio and tv broadcasters, not the actual producers of the ad).
Illegal Contract - This is a subset of the public policy violation discussed above. Basically a contract will not be enforced if you can prove that it requires conduct that is illegal. The classic example of this is a gambling contract (for example, "If the Washington Capitals win the Stanley Cup, I will pay you $500, but if they do not, you will pay me $50") in a state where gambling is illegal, or at least not legally recognized (such as Virginia).
Debt Discharged in Bankruptcy - This is easy to understand but very important. If you filed a bankruptcy and that bankruptcy discharged a debt, then you are sued for that debt, it is on you to prove both that you filed the bankruptcy and that this debt was actually discharged. If you waive this defense, the lawsuit can go forward even though the debt was supposed to be discharged.
Conclusion
Affirmative defenses are a confusing and often difficult part of law for non-lawyers to understand. This is yet another reason why it's safest when you are sued to hire an attorney - there may be an affirmative defense available to you that you did not even know about! If you have been sued and want to know if you have an affirmative defense available to you, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, May 8, 2014
Unlawful Evictions in Virginia - What to Do if Your Landlord Takes Matters into His Own Hands
As always, before reading today's post, please review my disclaimer 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
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Wednesday, April 30, 2014
Virginia Divorce and Death Benefits: What Happens When You Die
As always, before reading this post please review my disclaimer by following the above link or by clicking on this link. As always, any legal principle discussed apply only to the Commonwealth of Virginia.
Introduction
Lawyers tend to live in a little bit of a fantasy world regarding our clients. Our clients, we like to believe, are "perfect" when it comes to protecting themselves under the law. They update their wills every time there's even the slightest change warranting an update, they are always on top of their finances, and nothing is even let go by for a day.
Of course, this is a fantasy, and reality is that most people who aren't lawyers really don't have time to be obsessing over life's relatively minor legalities. So, let me present you with a scenario we see all the time in family law. John and Suzanne get divorced. Two months later, John and Betty get married. Two months after that, John dies. At the time of John's death, he has not updated his will, or his beneficiary designations. He has a will, life insurance policy, retirement account, etc. that all say "everything goes to Suzanne." Given the divorce, and John's remarriage, we know this was probably not what he wanted to have happen. So, what now?
In today's blog post, I will cover some of the legalities that occur if a divorced spouse dies without having updated legal documents designating his or her ex as his or her beneficiary. The ultimate conclusion will be simple - update your designations! Nonetheless, it is worth understanding the "default," in case you find yourself in a situation beyond your control.
General Rule
The general rule, as laid out by the Code of Virginia, is that your divorce automatically revokes all will designations and beneficiary designations of your ex-spouse. Period, end of story. Instead, the will, life insurance policy, etc. is required to act as though the ex-spouse died before you did. Of course, practice is not that simple. For example, what if the insurance company doesn't know about your divorce and pays the money to your ex-spouse anyways? That is where the rules get tricky.
Wills
Wills are probably the easiest topic in this area. The effect of a divorce on a will is laid out in Va. Code Section 64.2-412. Under that section, as stated in the general rule, the will is now executed as though your ex had pre-deceased you. While this may seem ideal, think about what this really means. What if John's will says "everything goes to Suzanne, but if she dies before me, it goes to my brother, Bob." Well, under the law, now John's estate will go to Bob, not Betty. In real life it's not quite that simple because of something called the "elective share," but I'm not going to get too into estate law here, so just know that if John wanted his whole estate to go to Betty, by not updating his will, his wishes still will not be followed, even though his estate will not go to Suzanne.
Life Insurance, Retirement Accounts, etc.
For life insurance, retirement accounts and other finances that are payable on death to your designated beneficiary, Va. Code Section 20-111.1 applies. That section also enacts the general rule. Specifically, your ex is to be treated as though he or she died before you. There is a big caveat however. It is your responsibility to notify the insurance company, financial service provider, etc., of the divorce. If the company pays out to the ex-spouse because it is not aware of the divorce, Va. Code Section 20-111.1(A) specifically exempts the company from liability for the improper payment. As a result, that money is gone, and is not coming back.
So, it is critical that you inform the company of the divorce. If, however, you are already going through the trouble of informing the company, wouldn't it be worthwhile to just go ahead and change your beneficiary designation? Unless the company restricts the times that you can do so, the amount of time involved is going to be similar, and it will result in much less confusion later.
Alternative Orders
There is an exception to the general rule which is also worth noting. If the order granting the divorce itself states that the will or beneficiary designation will survive the divorce, then it does survive the divorce. Now, it is practically unheard of for a judge to make such an order, so the practical effect of that exception is that it gives you the right, when trying to settle the divorce, to negotiate a result other than the general rule. This is just one more thing to think about when you are trying to find areas in which you can reach a compromise.
A Special Twist: Federal Life Insurance
As an attorney, it's always fun when a case from your local court ends up at the U.S. Supreme Court. In my case, this happened most recently with the Court's 2013 case of Hillman v. Maretta, which started in the Fairfax County Circuit Court with a ruling by Judge Michael Devine, for whom I have a great deal of respect. Now, this relates to our topic, because this case involved an issue that rarely comes up anywhere except in the DC area - what about life insurance provided by the federal government for federal employees?
Federal Employee Group Life Insurance (FEGLI) is a benefit offered to federal employees to get life insurance without a medical exam and while paying a much lower premium than they would if they were to get insurance on their own. Life insurance is not an uncommon benefit offered by large employers, and the federal government wants to compete with large employers for the best employees, so that led to the establishment of FEGLI. However, as the federal government is not a "normal" employer, it had to have authority to create FEGLI, so Congress passed the Federal Employee Group Life Insurance Act (FEGLIA) to establish FEGLI. A key component of FEGLIA is U.S. Code Title 5, Section 8705 which designates the order in which FEGLI is distributed. Title 5, Section 8705(a) states that the first person to whom the money is sent is the "person designated by the employee," and then has a linear list of who goes next if that person pre-deceases the employee.
Well, you might be asking why this all matters? If you remember your middle school civics, however, you might have an idea. Specifically, federal law trumps state law, and while Virginia state law says that the designation becomes invalid, it cannot supersede federal law, and FEGLIA has no provision regarding divorce.
Anticipating this problem, the General Assembly passed Va. Code Section 20-111.1(D) which stated that if 20-111.1(A) is "pre-empted" (meaning does not apply due to a contrary federal law), then the money does go to designated ex-spouse, but then the person who would have gotten the money had 20-111.1(A) applied can sue the ex-spouse for that money.
Hillman v. Maretta dealt with exactly this situation. Warren Hillman designated his wife, Judy Maretta, as his FEGLI beneficiary in 1996. In 1998, Hillman and Maretta divorced. In 2002, Hillman re-married. In 2008, Hillman died, having never updated his FEGLI designation. As a result, Maretta claimed the $120k+ life insurance policy on Hillman, and Jackie Hillman sued Maretta for that amount under Va. Code Section 20-111.1(D). The trial court ruled that while 20-111.1(A) was pre-empted by FEGLIA, 20-111.1(D) was not, so it ruled in favor of Hillman. The Virginia Supreme Court disagreed, and ruled in favor of Maretta, so Hillman appealed to the U.S. Supreme Court. The U.S. Supreme Court also agreed with Maretta, and ruled that Va. 20-111.1(D) conflicts with the purpose of FEGLIA and is therefore pre-empted as well. As a result, Maretta got to keep the money.
This can be confusing because 20-111.1(D) is still on the books, even though we know now it is unenforceable. The key takeaway, though, is that if you are a federal employee, you must change your FEGLI designation. The law will not do it for you.
Conclusion
When we divorce, we often don't think about things like wills and life insurance - but they remain critical pieces of our lives that need to be addressed. One of the first things you should do after a divorce is re-write your will and change your beneficiary designations to prevent later issues. Nonetheless, if you find yourself in a conflict relating to a divorce and death benefits, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Lawyers tend to live in a little bit of a fantasy world regarding our clients. Our clients, we like to believe, are "perfect" when it comes to protecting themselves under the law. They update their wills every time there's even the slightest change warranting an update, they are always on top of their finances, and nothing is even let go by for a day.
Of course, this is a fantasy, and reality is that most people who aren't lawyers really don't have time to be obsessing over life's relatively minor legalities. So, let me present you with a scenario we see all the time in family law. John and Suzanne get divorced. Two months later, John and Betty get married. Two months after that, John dies. At the time of John's death, he has not updated his will, or his beneficiary designations. He has a will, life insurance policy, retirement account, etc. that all say "everything goes to Suzanne." Given the divorce, and John's remarriage, we know this was probably not what he wanted to have happen. So, what now?
In today's blog post, I will cover some of the legalities that occur if a divorced spouse dies without having updated legal documents designating his or her ex as his or her beneficiary. The ultimate conclusion will be simple - update your designations! Nonetheless, it is worth understanding the "default," in case you find yourself in a situation beyond your control.
General Rule
The general rule, as laid out by the Code of Virginia, is that your divorce automatically revokes all will designations and beneficiary designations of your ex-spouse. Period, end of story. Instead, the will, life insurance policy, etc. is required to act as though the ex-spouse died before you did. Of course, practice is not that simple. For example, what if the insurance company doesn't know about your divorce and pays the money to your ex-spouse anyways? That is where the rules get tricky.
Wills
Wills are probably the easiest topic in this area. The effect of a divorce on a will is laid out in Va. Code Section 64.2-412. Under that section, as stated in the general rule, the will is now executed as though your ex had pre-deceased you. While this may seem ideal, think about what this really means. What if John's will says "everything goes to Suzanne, but if she dies before me, it goes to my brother, Bob." Well, under the law, now John's estate will go to Bob, not Betty. In real life it's not quite that simple because of something called the "elective share," but I'm not going to get too into estate law here, so just know that if John wanted his whole estate to go to Betty, by not updating his will, his wishes still will not be followed, even though his estate will not go to Suzanne.
Life Insurance, Retirement Accounts, etc.
For life insurance, retirement accounts and other finances that are payable on death to your designated beneficiary, Va. Code Section 20-111.1 applies. That section also enacts the general rule. Specifically, your ex is to be treated as though he or she died before you. There is a big caveat however. It is your responsibility to notify the insurance company, financial service provider, etc., of the divorce. If the company pays out to the ex-spouse because it is not aware of the divorce, Va. Code Section 20-111.1(A) specifically exempts the company from liability for the improper payment. As a result, that money is gone, and is not coming back.
So, it is critical that you inform the company of the divorce. If, however, you are already going through the trouble of informing the company, wouldn't it be worthwhile to just go ahead and change your beneficiary designation? Unless the company restricts the times that you can do so, the amount of time involved is going to be similar, and it will result in much less confusion later.
Alternative Orders
There is an exception to the general rule which is also worth noting. If the order granting the divorce itself states that the will or beneficiary designation will survive the divorce, then it does survive the divorce. Now, it is practically unheard of for a judge to make such an order, so the practical effect of that exception is that it gives you the right, when trying to settle the divorce, to negotiate a result other than the general rule. This is just one more thing to think about when you are trying to find areas in which you can reach a compromise.
A Special Twist: Federal Life Insurance
As an attorney, it's always fun when a case from your local court ends up at the U.S. Supreme Court. In my case, this happened most recently with the Court's 2013 case of Hillman v. Maretta, which started in the Fairfax County Circuit Court with a ruling by Judge Michael Devine, for whom I have a great deal of respect. Now, this relates to our topic, because this case involved an issue that rarely comes up anywhere except in the DC area - what about life insurance provided by the federal government for federal employees?
Federal Employee Group Life Insurance (FEGLI) is a benefit offered to federal employees to get life insurance without a medical exam and while paying a much lower premium than they would if they were to get insurance on their own. Life insurance is not an uncommon benefit offered by large employers, and the federal government wants to compete with large employers for the best employees, so that led to the establishment of FEGLI. However, as the federal government is not a "normal" employer, it had to have authority to create FEGLI, so Congress passed the Federal Employee Group Life Insurance Act (FEGLIA) to establish FEGLI. A key component of FEGLIA is U.S. Code Title 5, Section 8705 which designates the order in which FEGLI is distributed. Title 5, Section 8705(a) states that the first person to whom the money is sent is the "person designated by the employee," and then has a linear list of who goes next if that person pre-deceases the employee.
Well, you might be asking why this all matters? If you remember your middle school civics, however, you might have an idea. Specifically, federal law trumps state law, and while Virginia state law says that the designation becomes invalid, it cannot supersede federal law, and FEGLIA has no provision regarding divorce.
Anticipating this problem, the General Assembly passed Va. Code Section 20-111.1(D) which stated that if 20-111.1(A) is "pre-empted" (meaning does not apply due to a contrary federal law), then the money does go to designated ex-spouse, but then the person who would have gotten the money had 20-111.1(A) applied can sue the ex-spouse for that money.
Hillman v. Maretta dealt with exactly this situation. Warren Hillman designated his wife, Judy Maretta, as his FEGLI beneficiary in 1996. In 1998, Hillman and Maretta divorced. In 2002, Hillman re-married. In 2008, Hillman died, having never updated his FEGLI designation. As a result, Maretta claimed the $120k+ life insurance policy on Hillman, and Jackie Hillman sued Maretta for that amount under Va. Code Section 20-111.1(D). The trial court ruled that while 20-111.1(A) was pre-empted by FEGLIA, 20-111.1(D) was not, so it ruled in favor of Hillman. The Virginia Supreme Court disagreed, and ruled in favor of Maretta, so Hillman appealed to the U.S. Supreme Court. The U.S. Supreme Court also agreed with Maretta, and ruled that Va. 20-111.1(D) conflicts with the purpose of FEGLIA and is therefore pre-empted as well. As a result, Maretta got to keep the money.
This can be confusing because 20-111.1(D) is still on the books, even though we know now it is unenforceable. The key takeaway, though, is that if you are a federal employee, you must change your FEGLI designation. The law will not do it for you.
Conclusion
When we divorce, we often don't think about things like wills and life insurance - but they remain critical pieces of our lives that need to be addressed. One of the first things you should do after a divorce is re-write your will and change your beneficiary designations to prevent later issues. Nonetheless, if you find yourself in a conflict relating to a divorce and death benefits, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, April 24, 2014
Relevant Changes in Virginia Law - 2014 Edition
As always, before reading this post please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the fun parts of being a lawyer is keeping up with changes in the law - be it from new appellate court cases or changes in the law from the General Assembly. It means our work never remains the same. It is my goal in the near-term future to be able to start providing updates to posts I make here when new caselaw comes down that changes something. Nonetheless, legislation is a little easier to deal with.
In Virginia, with rare exceptions, new laws take effect on July 1 of the year in which they were enacted. The legislative session, however, is usually long done by then - giving us a period of time where we know which new laws are coming (so we can prepare for them), but we also know that no more new laws will be created while we prepare. We are at that point this year, as the only legislative work remaining is the budget.
So, there are several laws that will take effect on July 1 of this year that affect, either directly or indirectly, topics on which I have made blog posts in the past. As a result, I will use this post to address some of those changes, including a reference to the blog post(s) that might be altered or affected.
Important Change to VRLTA Inclusion/Exclusion
If you are a regular reader of my blog, you know how important it is in the landlord/tenant context to understand whether or not the Virginia Residential Landlord and Tenant Act (VRLTA) applies to your lease. On July 1, 2014, the VRLTA will have a couple of important changes.
Amongst other things, my May 20, 2013 post about the VRLTA lists the situations in which the VRLTA does or does not apply. The most common situation where the VRLTA does not apply was "occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than ten single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences located in any city or in any county having either the urban county executive form or county manager plan of government, no more than four."
Well, the General Assembly has decided that four or ten is too high a number, and that it makes no sense to have different rules in different parts of the state, when really the only goal of that exclusion is to exclude people who are not "professional" landlords. So, HB 273, which will take effect on July 1, 2014, has changed that exclusion to a much more simple "Occupancy in single-family residences where the owners are natural persons or their estates who own in their own name no more than two single-family residences subject to a rental agreement." So, after July 1, if you rent from someone who has three or more single-family residences anywhere that he or she rents out, then your lease will apply to the VRLTA. Note, however, that this will not change the applicability of the VRLTA to leases entered into before July 1, 2014 due to constitutional contract principles. Those leases will remain covered by the pre-July 1, 2014 rules until they expire.
Changes to VRLTA Security Deposit Rules
You may recall in my post from February 27, 2014 about why the VRLTA really matters that a landlord is required to accrue interest on any security deposit held for more than 13 months. However, you may also recall that I pointed out that this requirement had essentially been meaningless for five years since the way that the interest rate was set had the interest at 0 for that long. Well, the General Assembly has finally given up on this. The same HB 273 mentioned above also terminates the requirement that landlords accrue interest on security deposits under the VRLTA - that change being effective January 1, 2015.
Changes to the Child Support Guidelines
Just last week I posted about how child support works in Virginia. Well, by and large that is not changing. However, there is an often ignored part of the Code that requires a commission to gather every four years and review the Virginia Child Support Guidelines and suggest changes if needed. This is often ignored because the commission has never suggested changes. Until this year. This year, the commission did suggest changes, and they were passed by the General Assembly in HB 933. While there are several important changes made, the only one that covers my blog are changes to the "child support need," the number that gets spit out when you plug in the combined income of the parents. While the changes are not uniform, they are by and large a little lower, meaning child support obligations will come down overall when this law takes effect on July 1, 2014.
Conclusion
The above changes are just a sampling of the kinds of changes we have to deal with every year as attorneys. Based on the above, I have to re-design the leases I do for landlords, change the questions I ask landlords and tenants to determine which laws apply, get a new child support guidelines program, and likely deal with an influx of cases of people seeking to modify their child support. This is yet another reason why internet research can fail you as a potential litigant - you could end up finding an old version of the law - and why you are usually better off with an attorney. If you'd like legal representation in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to 30 minutes!
Introduction
One of the fun parts of being a lawyer is keeping up with changes in the law - be it from new appellate court cases or changes in the law from the General Assembly. It means our work never remains the same. It is my goal in the near-term future to be able to start providing updates to posts I make here when new caselaw comes down that changes something. Nonetheless, legislation is a little easier to deal with.
In Virginia, with rare exceptions, new laws take effect on July 1 of the year in which they were enacted. The legislative session, however, is usually long done by then - giving us a period of time where we know which new laws are coming (so we can prepare for them), but we also know that no more new laws will be created while we prepare. We are at that point this year, as the only legislative work remaining is the budget.
So, there are several laws that will take effect on July 1 of this year that affect, either directly or indirectly, topics on which I have made blog posts in the past. As a result, I will use this post to address some of those changes, including a reference to the blog post(s) that might be altered or affected.
Important Change to VRLTA Inclusion/Exclusion
If you are a regular reader of my blog, you know how important it is in the landlord/tenant context to understand whether or not the Virginia Residential Landlord and Tenant Act (VRLTA) applies to your lease. On July 1, 2014, the VRLTA will have a couple of important changes.
Amongst other things, my May 20, 2013 post about the VRLTA lists the situations in which the VRLTA does or does not apply. The most common situation where the VRLTA does not apply was "occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than ten single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences located in any city or in any county having either the urban county executive form or county manager plan of government, no more than four."
Well, the General Assembly has decided that four or ten is too high a number, and that it makes no sense to have different rules in different parts of the state, when really the only goal of that exclusion is to exclude people who are not "professional" landlords. So, HB 273, which will take effect on July 1, 2014, has changed that exclusion to a much more simple "Occupancy in single-family residences where the owners are natural persons or their estates who own in their own name no more than two single-family residences subject to a rental agreement." So, after July 1, if you rent from someone who has three or more single-family residences anywhere that he or she rents out, then your lease will apply to the VRLTA. Note, however, that this will not change the applicability of the VRLTA to leases entered into before July 1, 2014 due to constitutional contract principles. Those leases will remain covered by the pre-July 1, 2014 rules until they expire.
Changes to VRLTA Security Deposit Rules
You may recall in my post from February 27, 2014 about why the VRLTA really matters that a landlord is required to accrue interest on any security deposit held for more than 13 months. However, you may also recall that I pointed out that this requirement had essentially been meaningless for five years since the way that the interest rate was set had the interest at 0 for that long. Well, the General Assembly has finally given up on this. The same HB 273 mentioned above also terminates the requirement that landlords accrue interest on security deposits under the VRLTA - that change being effective January 1, 2015.
Changes to the Child Support Guidelines
Just last week I posted about how child support works in Virginia. Well, by and large that is not changing. However, there is an often ignored part of the Code that requires a commission to gather every four years and review the Virginia Child Support Guidelines and suggest changes if needed. This is often ignored because the commission has never suggested changes. Until this year. This year, the commission did suggest changes, and they were passed by the General Assembly in HB 933. While there are several important changes made, the only one that covers my blog are changes to the "child support need," the number that gets spit out when you plug in the combined income of the parents. While the changes are not uniform, they are by and large a little lower, meaning child support obligations will come down overall when this law takes effect on July 1, 2014.
Conclusion
The above changes are just a sampling of the kinds of changes we have to deal with every year as attorneys. Based on the above, I have to re-design the leases I do for landlords, change the questions I ask landlords and tenants to determine which laws apply, get a new child support guidelines program, and likely deal with an influx of cases of people seeking to modify their child support. This is yet another reason why internet research can fail you as a potential litigant - you could end up finding an old version of the law - and why you are usually better off with an attorney. If you'd like legal representation in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to 30 minutes!
Thursday, April 17, 2014
Virginia Child Support: Figuring Out How Much to Pay
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
UPDATE: Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law. Please see my blog post of April 24, 2014 for details.
UPDATE (4/27/18): Some of the information contained in the below blog post is outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
In theory, child support should be one of the simplest areas of family law to resolve. This is because Virginia, like every other state in the country, has adopted "guidelines" that set the child support for nearly every child support case the state sees. The guidelines are laid out in painstaking detail in Virginia Code Section 20-108.2. Most attorneys who practice family law, myself included, have a reliable computer program that calculates support for them when they plug in the relevant numbers - there are also many calculators available online, but I've found a good number of them to be plainly inaccurate.
So, again, this process seems simple. Plug in the numbers, numbers get spit out. How many complications can there really be? In today's blog post, I will discuss the issues that go into child support that make it complicated, despite the guidelines. I will also explain how the guidelines are actually calculated, and hopefully provide a more solid understanding of how child support in Virginia works.
The Basic Case
I'm going to start off with a very simple case. In this situation, a couple with two children divorce. The children are 6 and 8, both in school. Both parents work full-time, the father earning $84,000 per year, the mother earning $36,000 per year. The mother has custody of the children. The father's employer provides health insurance that covers the children at no additional cost. The children's school day aligns with the mother's work schedule, so she has no daycare costs.
This is the simplest case there is in child support, because the guidelines here are easy. The father earns $7,000 per month while the mother earns $3,000 per month, providing a combined income of $10,000 per month. If we go to the chart in Section 20-108.2, you will see that a combined income level of $10,000 per month for two children yields a "child support need" of $1,577 per month. Since the father earns 70% of the combined income, he is responsible for 70% of that need, or $1,104 per month. The mother is presumed to pay her share on a daily basis because she has the children, but since the father is not custodian, he is required to pay his share to the mother. Thus, in this case, the father's child support is $1,104 per month.
Complication 1 - Health Insurance and Daycare
So, now let's make some adjustments to the above scenario. The two most common adjustments I see in my work involve health insurance and daycare. So, first, let's say that the health insurance for the children is not free, but that the father instead has to pay an extra $500 per month for their health insurance. Next, let's say that instead of 6 and 8, the children are 3 and 5, so only one is in school, and the mother has to pay $1,000 per month for daycare for the other so she can work.
The law allows both of these things to go into the calculation. The custodial parent can include "work-related child care," which is defined in the Code as the cost the parent must pay for the child to be cared for in order to allow that parent to work (and, with a 2013 change in the law - this can also be care to allow the parent to go to school to get a degree to increase his or her earning capacity). The cost must be reasonable, and the reasonableness of this cost is the basis of many court disputes, but for the purpose of this exercise, we will assume the amount here is reasonable.
So, the health insurance and daycare is considered outside the amount "included" in what the Code views as the needs of the children that are taken into account in setting the guidelines. As a result, both are added to the "child support need" listed above. So, suddenly the "child support need" is now $3,077 per month ($1,577 + $1,500). The father's 70% share, then, is now $2,154 per month. The mother is still presumed to pay her share on her own (and does pay the work related child care). But what of the health insurance, part of that "need" total which the father pays in full? Well, since the father is paying it, and it is now considered part of support, that $500 gets deducted from his support total. As a result, in this scenario, the guidelines now have the father paying $1,654 per month to the mother for support.
Complication 2 - Other Children
Now, let's add another common complication we encounter. Let's say this was the second marriage for both of these parents, and they each have one child from their previous marriages. Let's say the father's child from his previous marriage lives with the father, so he doesn't pay any defined child support for that child. Let's also say that the mother's child from her previous marriage does not live with her, and instead she is ordered to pay that child's father $500 per month in child support.
The Code recognizes that other children change the equation because it affects what you can afford. As a result, you can reduce your income by the amount of "support" you pay for the other child. The mother's child support obligation is known - she pays $500 per month, so that is what is taken out of her income, reducing her income for guidelines purposes to $2,500 per month. The father, however, is not so simple to figure out, since the child lives with him.
Well, the Code says in that case, you use the guideline chart in Section 20-108.2 again, and find out what support the father would be paying if he were the only income earner. So, in our chart, we can see that at $7,000 per month for one child, the child support level is $848 per month, and that is what the father gets to reduce from his income.
So, what does this give us? Well, the mother's income is now $2,500 per month, the father's is $6,152 per month. This is a combined total of $8,652 per month. The chart tells us that a total of $8,650 per month (which is what you'd round to) yields a child support need for two children of $1,478 per month. Add in the $1,500 from health insurance and child care, and you get a total need of $2,978 per month. The father now has 71.1% of the income, so his share is now $2,117 per month, and after you subtract the $500 per month in health insurance, he owes child support of $1,617 per month.
Complication 3 - Self-Employment
The last "common" complication that we see is a situation where one parent is self-employed. In that situation, the Code allows for the self-employed parent to deduct one-half of the self-employment tax from his or her income. So, for our purposes, let's assume the mother is self-employed. The self-employment tax is currently 15.3%, so on $3,000 per month that would be $459, half of which would be $230. So, we can now reduce the mother's income by another $230 per month, leaving her with an income of $2,270.
The combined income thus drops to $8,422 per month, the pre-addition child support need becomes $1,457 per month, which becomes $2,957 after adding in insurance and daycare. The father's share is now 73.1% of income, so his share of the support is now $2,160 per month, meaning he owes child support of $1,660 per month after deducting his health insurance cost.
Complication 4 - Different Custody Arrangements
While the above are not all of the complications that come up with calculating support in a "normal" custody arrangement, they are by far the most common. The other common complication is if you have different custody arrangements. I'm not going to get into the details of those calculations here, since they would warrant a whole other post, but there are two other situations worth noting - split custody and shared custody.
Split custody occurs when each parent has custody of one or more of the children, so neither parent has custody over all of the children. Shared custody occurs when each parent has the children for more than 90 days per year (and yes, the definition of "days" has itself sparked many court battles), so each parent is considered to have custody of the children to some degree. In both of these situations, the Code recognizes that really each parent should be paying the other support to some degree, so the child support total becomes the amount the one who would owe more would owe minus the amount the one who would owe less would owe.
I'm not going to get into the details of how these calculations work today because, as I said, they're so complicated they would warrant their own post, but for illustrative purposes, I'll give you some numbers. We'll go back to the example above, but the very simple numbers - $7,000 per month income for the father, $3,000 per month for the mother, no other changes. In that situation, for split custody, the guidelines yield a support obligation of $710 per month for the father and $304 per month for the mother, yielding a net child support obligation for the father of $406 per month.
Now, same situation, except let's say the mother has the children for 190 days per year, and the father has the children for 175 days per year. In that case, the guidelines yield a support obligation of $804 per month for the father and $318 per month for the mother, yielding a net child support obligation for the father of $487 per month.
Complication 5 - Deviation from the Guidelines
Now, after all of that, there is the remaining fact that the court is not required to follow the guidelines. Now, in my experience, the courts follow the guidelines in somewhere around 90% of cases. Nonetheless, there is a list of factors in Virginia Code Section 20-108.1(B) that, if the court thinks them important enough, can warrant the court deviating from the guidelines, either up or down. Whenever a court deviates, it must first calculate the guidelines, then find that is improper based on one, some, or all of the factors in Section 20-108.1(B), and then calculate a new amount.
The most common deviation I see is for the factor in Section 20-108.1(B)(3) - the court finds that a party is voluntarily under or unemployed, and imputes income to them. The court must still calculate the regular guidelines first, then the court will calculate the guidelines with what it considers the "correct" income number, and will order support on that basis. Nonetheless, all of the factors can come up in various cases.
Conclusion
As you can see from the above, despite the existence of guidelines calculation of child support in Virginia is very complicated. Add to the complications the fact that basically every factor above (income, support for other children, reasonableness of health insurance and daycare costs, self-employment issues, etc.) can be disputed at trial, and you find out why a seemingly simple topic results in so much litigation. If you are trying to resolve your child support case and find yourself just spinning your wheels, do yourself a favor and get an attorney. You can call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment. Our initial consultations are free for up to half an hour!
UPDATE: Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law. Please see my blog post of April 24, 2014 for details.
UPDATE (4/27/18): Some of the information contained in the below blog post is outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
In theory, child support should be one of the simplest areas of family law to resolve. This is because Virginia, like every other state in the country, has adopted "guidelines" that set the child support for nearly every child support case the state sees. The guidelines are laid out in painstaking detail in Virginia Code Section 20-108.2. Most attorneys who practice family law, myself included, have a reliable computer program that calculates support for them when they plug in the relevant numbers - there are also many calculators available online, but I've found a good number of them to be plainly inaccurate.
So, again, this process seems simple. Plug in the numbers, numbers get spit out. How many complications can there really be? In today's blog post, I will discuss the issues that go into child support that make it complicated, despite the guidelines. I will also explain how the guidelines are actually calculated, and hopefully provide a more solid understanding of how child support in Virginia works.
The Basic Case
I'm going to start off with a very simple case. In this situation, a couple with two children divorce. The children are 6 and 8, both in school. Both parents work full-time, the father earning $84,000 per year, the mother earning $36,000 per year. The mother has custody of the children. The father's employer provides health insurance that covers the children at no additional cost. The children's school day aligns with the mother's work schedule, so she has no daycare costs.
This is the simplest case there is in child support, because the guidelines here are easy. The father earns $7,000 per month while the mother earns $3,000 per month, providing a combined income of $10,000 per month. If we go to the chart in Section 20-108.2, you will see that a combined income level of $10,000 per month for two children yields a "child support need" of $1,577 per month. Since the father earns 70% of the combined income, he is responsible for 70% of that need, or $1,104 per month. The mother is presumed to pay her share on a daily basis because she has the children, but since the father is not custodian, he is required to pay his share to the mother. Thus, in this case, the father's child support is $1,104 per month.
Complication 1 - Health Insurance and Daycare
So, now let's make some adjustments to the above scenario. The two most common adjustments I see in my work involve health insurance and daycare. So, first, let's say that the health insurance for the children is not free, but that the father instead has to pay an extra $500 per month for their health insurance. Next, let's say that instead of 6 and 8, the children are 3 and 5, so only one is in school, and the mother has to pay $1,000 per month for daycare for the other so she can work.
The law allows both of these things to go into the calculation. The custodial parent can include "work-related child care," which is defined in the Code as the cost the parent must pay for the child to be cared for in order to allow that parent to work (and, with a 2013 change in the law - this can also be care to allow the parent to go to school to get a degree to increase his or her earning capacity). The cost must be reasonable, and the reasonableness of this cost is the basis of many court disputes, but for the purpose of this exercise, we will assume the amount here is reasonable.
So, the health insurance and daycare is considered outside the amount "included" in what the Code views as the needs of the children that are taken into account in setting the guidelines. As a result, both are added to the "child support need" listed above. So, suddenly the "child support need" is now $3,077 per month ($1,577 + $1,500). The father's 70% share, then, is now $2,154 per month. The mother is still presumed to pay her share on her own (and does pay the work related child care). But what of the health insurance, part of that "need" total which the father pays in full? Well, since the father is paying it, and it is now considered part of support, that $500 gets deducted from his support total. As a result, in this scenario, the guidelines now have the father paying $1,654 per month to the mother for support.
Complication 2 - Other Children
Now, let's add another common complication we encounter. Let's say this was the second marriage for both of these parents, and they each have one child from their previous marriages. Let's say the father's child from his previous marriage lives with the father, so he doesn't pay any defined child support for that child. Let's also say that the mother's child from her previous marriage does not live with her, and instead she is ordered to pay that child's father $500 per month in child support.
The Code recognizes that other children change the equation because it affects what you can afford. As a result, you can reduce your income by the amount of "support" you pay for the other child. The mother's child support obligation is known - she pays $500 per month, so that is what is taken out of her income, reducing her income for guidelines purposes to $2,500 per month. The father, however, is not so simple to figure out, since the child lives with him.
Well, the Code says in that case, you use the guideline chart in Section 20-108.2 again, and find out what support the father would be paying if he were the only income earner. So, in our chart, we can see that at $7,000 per month for one child, the child support level is $848 per month, and that is what the father gets to reduce from his income.
So, what does this give us? Well, the mother's income is now $2,500 per month, the father's is $6,152 per month. This is a combined total of $8,652 per month. The chart tells us that a total of $8,650 per month (which is what you'd round to) yields a child support need for two children of $1,478 per month. Add in the $1,500 from health insurance and child care, and you get a total need of $2,978 per month. The father now has 71.1% of the income, so his share is now $2,117 per month, and after you subtract the $500 per month in health insurance, he owes child support of $1,617 per month.
Complication 3 - Self-Employment
The last "common" complication that we see is a situation where one parent is self-employed. In that situation, the Code allows for the self-employed parent to deduct one-half of the self-employment tax from his or her income. So, for our purposes, let's assume the mother is self-employed. The self-employment tax is currently 15.3%, so on $3,000 per month that would be $459, half of which would be $230. So, we can now reduce the mother's income by another $230 per month, leaving her with an income of $2,270.
The combined income thus drops to $8,422 per month, the pre-addition child support need becomes $1,457 per month, which becomes $2,957 after adding in insurance and daycare. The father's share is now 73.1% of income, so his share of the support is now $2,160 per month, meaning he owes child support of $1,660 per month after deducting his health insurance cost.
Complication 4 - Different Custody Arrangements
While the above are not all of the complications that come up with calculating support in a "normal" custody arrangement, they are by far the most common. The other common complication is if you have different custody arrangements. I'm not going to get into the details of those calculations here, since they would warrant a whole other post, but there are two other situations worth noting - split custody and shared custody.
Split custody occurs when each parent has custody of one or more of the children, so neither parent has custody over all of the children. Shared custody occurs when each parent has the children for more than 90 days per year (and yes, the definition of "days" has itself sparked many court battles), so each parent is considered to have custody of the children to some degree. In both of these situations, the Code recognizes that really each parent should be paying the other support to some degree, so the child support total becomes the amount the one who would owe more would owe minus the amount the one who would owe less would owe.
I'm not going to get into the details of how these calculations work today because, as I said, they're so complicated they would warrant their own post, but for illustrative purposes, I'll give you some numbers. We'll go back to the example above, but the very simple numbers - $7,000 per month income for the father, $3,000 per month for the mother, no other changes. In that situation, for split custody, the guidelines yield a support obligation of $710 per month for the father and $304 per month for the mother, yielding a net child support obligation for the father of $406 per month.
Now, same situation, except let's say the mother has the children for 190 days per year, and the father has the children for 175 days per year. In that case, the guidelines yield a support obligation of $804 per month for the father and $318 per month for the mother, yielding a net child support obligation for the father of $487 per month.
Complication 5 - Deviation from the Guidelines
Now, after all of that, there is the remaining fact that the court is not required to follow the guidelines. Now, in my experience, the courts follow the guidelines in somewhere around 90% of cases. Nonetheless, there is a list of factors in Virginia Code Section 20-108.1(B) that, if the court thinks them important enough, can warrant the court deviating from the guidelines, either up or down. Whenever a court deviates, it must first calculate the guidelines, then find that is improper based on one, some, or all of the factors in Section 20-108.1(B), and then calculate a new amount.
The most common deviation I see is for the factor in Section 20-108.1(B)(3) - the court finds that a party is voluntarily under or unemployed, and imputes income to them. The court must still calculate the regular guidelines first, then the court will calculate the guidelines with what it considers the "correct" income number, and will order support on that basis. Nonetheless, all of the factors can come up in various cases.
Conclusion
As you can see from the above, despite the existence of guidelines calculation of child support in Virginia is very complicated. Add to the complications the fact that basically every factor above (income, support for other children, reasonableness of health insurance and daycare costs, self-employment issues, etc.) can be disputed at trial, and you find out why a seemingly simple topic results in so much litigation. If you are trying to resolve your child support case and find yourself just spinning your wheels, do yourself a favor and get an attorney. You can call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment. Our initial consultations are free for up to half an hour!
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