As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
So, you've done everything right. You rented out your home, your tenants stopped paying rent, you did all your correct notices, went to court, got a judgment, and waited out the excruciating eviction process. Finally, the big day comes, your tenants are out, and you have a house full of their junk. Now what?
I've been shocked over time to discover that most advice out there about how to handle evictions seems to stop the moment the tenants are removed from the property. Those who have been through this before, however, know that this is not the case at all. Just because the tenants are out does not mean the ordeal is over - not by a long shot. Today's blog post will discuss some of your rights, and your responsibilities, for handling issues that arise once the eviction is over.
Handling Tenants' Personal Property
The first step is handling tenants' personal property. For this, you have two options (and this is regardless of whether or not you have a VRLTA lease). First, you can have all of their personal property removed from the house and placed on the street, with the tenants (and anyone else in the neighborhood, realistically speaking) having the opportunity to come and get their belongings from there. Once the property is out of the house, it is no longer your responsibility, and what happens to it happens.
Now, this option is unappealing for several reasons. First, you must provide the movers so that this can be done rapidly - and this cost must be borne by you, it cannot be passed on to the tenants. Second, it can create an eyesore by piling up loads of crap on the street.
So, most landlords opt for the second option. Bring along a locksmith, change the locks, and then leave the property again, allowing the tenants 24 hours to remove their belongings from the property. Note, however, that they are only allowed to do this during "reasonable hours" generally accepted to mean 9 a.m. to 5 p.m., so if the eviction happens before 9 a.m., they will actually only have until 5 p.m. that day to act. Afterwards, they are barred from the property, and can be removed by the police for trespassing.
First Week After Eviction
The first week after the eviction is fairly hectic. Why? Because even though you went through all of this, you are STILL obligated to obey your lease terms when it comes to dealing with your tenants' account and security deposit, which usually means a deadline to get a statement out about what damages there are in the property.
If personal property remains after the removal period, you can now dispose of it however you wish. If, however, you sell it, note that the proceeds of that sale must be applied against the tenants' account.
Next, you'll want to get estimates for getting any work that needs to be done to fix the place up ASAP. That way, you can put together your itemized list of damages, which is what should be deducted from the security deposit before you apply the deposit to anything else. Once you have your estimates and have gotten rid of the remaining personal property, it's time to begin work on fixing the place up.
Lingering Tenants
One thing a lot of former tenants don't seem to understand is that post-eviction, all of their rights to the property (and any personal property they left behind) are gone. As a result, if they keep coming around, you can call the police for trespassing, and even harassment. I knew one landlord who put all the personal property left behind up for a garage sale only to have the tenants come and start loading up their cars (without paying for any of it). They were shocked when the police arrived and threatened to arrest them if they did not return everything they had just taken and leave.
I know that, as a human being, this may seem harsh. You can also be certain that your former tenants will do everything they can to make it seem even harsher - I saw one case where the tenants kept their 5 and 7 year old kids home from school on eviction day just to have them directly beg the landlord not to go through with it. Remember, though, as harsh as it may seem, by the time an eviction is fully carried out the tenants have literally had months to move out on their own terms and failed to take advantage. At some point, you have to say enough. It is now your property, and any doorway you leave open to your former tenants could result in whole new litigation issues arising for you down the line.
Security Deposit
So, once you have your itemized list of damages and costs, you need to send it to your former tenants. If it subsumes the entire security deposit, and any money you received from selling the tenants' personal property, and then some, you can include a demand for funds (though the likelihood of you ever seeing that money is quite low). If it does not, then any remaining security deposit and funds received from sale of property should be applied against their outstanding balance from the judgment you obtained.
While I have literally never heard of this happening, I suppose it is theoretically possible that the combination of the security deposit and money received from selling personal property could exceed the total damages and costs, as well as the total judgment against the tenants. If that occurs, you must record the satisfaction of the judgment with the court where the judgment was entered, and then send the remaining amount of money to the former tenants.
Finishing Up
So, you've got the tenants out, you gave them their 24 hours, you fixed up the place, you handled the security deposit and any proceeds from the sale of personal property properly, now what? Well, basically, you're done. Again, the property's yours. You are free to re-rent to a new tenant and move on with your life - if you are ready to. However, there may be some lingering issues that you may want to address, but at this stage, addressing those issues is solely up to you.
Post-Eviction Proceedings
So, there are two big issues that are entirely optional to you as a landlord as to whether or not to address after your eviction is complete - post-judgment rent and post-judgment collections.
Many evictions occur before a lease term ends. As leases are contracts, the principle of "expected value" applies to leases as well. This means that, for all rent payments that would have been due after the date of judgment, and even after the date of final eviction, you can sue the former tenants for that amount of money. Note, however, that this only covers rent that would have actually been owed, and that you did not collect. So, once the lease term would have expired, your potential damages stop. Similarly, once you find a new tenant and start receiving rent, your potential damages stop. However, up until the earlier of the end of the lease term or finding a new tenant, you can sue for all rent payments not included in your initial judgment.
Additionally, if you have a judgment left over after the security deposit and personal property is distributed (and almost everyone in this situation does), you may want to pursue collecting that judgment. If you do, this judgment is treated just like any other, and I wrote a fairly extensive blog post on post-judgment collections in January of 2014.
Most landlords I know, however, recognize that the odds of being able to get a former tenant to pay anything are low, and they will typically just let their judgment and additional rent go rather than incurring the costs of pursuing it.
Conclusion
The eviction process is long, complicated and daunting, and many landlords just want to throw their hands up and celebrate when it's over. Before you release your attorney, however, it's important to remember that your case doesn't end when your tenants are removed. If you are having any ongoing issues relating to an eviction, 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!
Friday, May 22, 2015
Monday, May 11, 2015
A Letter to My Readers - This Blog's Status
Dear Readers,
If you are a regular reader of my blog you may be a little miffed at the fact that it's now been almost three weeks since my last blog post. For that, I am sincerely sorry. I have meant on multiple occasions to post, but it just hasn't happened. Here's the situation, and what my plan is moving forward.
In February, the firm I work for lost one of its attorneys, dropping down from four attorneys to three. While we often felt like there wasn't quite enough work to go around before, we discovered that we really had the perfect amount of work for around 3 and a half attorneys - so while we were underwhelmed a bit previously, we've been swamped work-wise since February.
This blog, despite only posting once per week, takes a lot of my time - I take my posts seriously, and my typical post results from a good 3 or more hours of work. Moreover, as much as I love doing this blog, it is ultimately my hobby, not my job, and where this blog's schedule and my work schedule conflict, my work schedule has to prevail. As time has gone on, I just have not been able to find the time to do these posts - and that came to a head in April. In April, I had seven different contested hearings, including two trials, and just started to run out of steam blog-wise. That has continued into May where my schedule simply has not given me the time for blog post construction that I used to have.
I still have much to say, and, I like to believe, much to contribute, but my previous goal of a post every week is likely out of reach at this point. To that end, I hope to have my next post up sometime next week, then aim to do a blog post every other week thereafter. Additionally, I will be changing the day of the week I post - for about six months now, Thursdays, my previous day of choice, have been a problem because I generally take Thursday afternoons off to watch my son (one of the perks of working for a small law firm really is that I get to spend an amount of time with my son that makes most other dads I know quite jealous). Most weeks, it appears to me Friday is probably a better day. However, this also comes with a pitfall - in most of my local jurisdictions, Fridays are motions days. In Fairfax, Fridays are also landlord/tenant hearing days. This means that there will be Fridays that just don't work.
So, in short - here's what you can expect in the future: fewer posts, more hiatuses, but, I hope, the same quality content. I am very sorry about the change, and if my schedule allows in the future, I will go back to once a week updates, but in the meantime, please do stay tuned - there is plenty more ahead.
Best Regards,
Sam
If you are a regular reader of my blog you may be a little miffed at the fact that it's now been almost three weeks since my last blog post. For that, I am sincerely sorry. I have meant on multiple occasions to post, but it just hasn't happened. Here's the situation, and what my plan is moving forward.
In February, the firm I work for lost one of its attorneys, dropping down from four attorneys to three. While we often felt like there wasn't quite enough work to go around before, we discovered that we really had the perfect amount of work for around 3 and a half attorneys - so while we were underwhelmed a bit previously, we've been swamped work-wise since February.
This blog, despite only posting once per week, takes a lot of my time - I take my posts seriously, and my typical post results from a good 3 or more hours of work. Moreover, as much as I love doing this blog, it is ultimately my hobby, not my job, and where this blog's schedule and my work schedule conflict, my work schedule has to prevail. As time has gone on, I just have not been able to find the time to do these posts - and that came to a head in April. In April, I had seven different contested hearings, including two trials, and just started to run out of steam blog-wise. That has continued into May where my schedule simply has not given me the time for blog post construction that I used to have.
I still have much to say, and, I like to believe, much to contribute, but my previous goal of a post every week is likely out of reach at this point. To that end, I hope to have my next post up sometime next week, then aim to do a blog post every other week thereafter. Additionally, I will be changing the day of the week I post - for about six months now, Thursdays, my previous day of choice, have been a problem because I generally take Thursday afternoons off to watch my son (one of the perks of working for a small law firm really is that I get to spend an amount of time with my son that makes most other dads I know quite jealous). Most weeks, it appears to me Friday is probably a better day. However, this also comes with a pitfall - in most of my local jurisdictions, Fridays are motions days. In Fairfax, Fridays are also landlord/tenant hearing days. This means that there will be Fridays that just don't work.
So, in short - here's what you can expect in the future: fewer posts, more hiatuses, but, I hope, the same quality content. I am very sorry about the change, and if my schedule allows in the future, I will go back to once a week updates, but in the meantime, please do stay tuned - there is plenty more ahead.
Best Regards,
Sam
Thursday, April 23, 2015
When Things Change - Virginia Custody and Support Modifications
As always, before reading this post please review my disclaimer by clicking on the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most common questions I get after a support order is entered in a case, and that I used to get for custody/visitation orders when I handled those cases, is "so, what happens now?" This is quickly followed by a string of "so, what happens if a, b, c, x, y, and/or z happens?" You see, most people understand that support and custody orders can change, but have little comprehension of how. This is because the rules vary across types of orders and courts.
In today's blog post, I will discuss the basics of when and how support and custody orders change.
What court are you in?
As odd as it may seem, it does matter which court your case is in as of your last order. The rules vary somewhat between the Circuit Court and the Juvenile & Domestic Relations Court (for a primer on the differences between these courts generally, you can check out my series on our trial courts starting here). So, your first step is to figure out what court you are in.
If the order you are trying to change was entered in the J&DR Court, and was never appealed, you can be fairly confident that your case is still in the J&DR Court. If it was in the Circuit Court, however, you need to review the Order itself. If the Order contains a provision "remanding" matters related to custody and/or support to the J&DR Court, then you are in the J&DR Court. If it does not, you should still be in the Circuit Court, but check the court file to make sure no one later filed a motion to remand.
Once you know what court you are in, you can file a Motion to Reopen and Modify in the Circuit Court, or a Petition to Modify in the J&DR Court. In the Circuit Court, usually you will have to take care of serving the other side, and getting the case set for trial. In the J&DR Court, they will usually take care of that for you, although you need to check with your local court for their rules.
What kind of order are you trying to change?
The next inquiry is to figure out what kind of order you are trying to change. This is because the standards are slightly different between custody/visitation and child support orders on the one hand, and spousal support orders on the other. As you might imagine, the courts have long ago concluded that it is harmful to all parties involved if people can keep coming back to court and fighting over custody/visitation and support again and again. As a result, various standards have been adopted for determining if a modification should be allowed.
Custody/visitation and child support orders
For custody/visitation orders and child support orders, you have the "material change" standard. The rule basically is "has there been a material change in circumstances that warrants reconsideration of the current order?" It is the party moving for the modification who has the burden to prove that the answer is "yes."
There are several key phrases in here, however, to remember. First, the change must be material. In other words, it can't be minor. A parent missing one visitation session, or having their income go up by $10 a month is generally not going to be considered material. It must be something that actually alters in a noticeable way the reality that was in place when the previous order was entered.
The second key phrase is that the material change must warrant a reconsideration of the current order. A parent relocating, for example, is almost always a material change in circumstances for custody/visitation - but if their move does not alter the child's life significantly, it may not warrant a reconsideration of the award. In the child support context, there may be a material change in income levels, but, for example, a guideline deviation factor that had been used previously might still warrant keeping support the same. Note that a custodial parent intentionally, and without just cause, withholding visitation from the non-custodial parent which that parent is entitled to, is virtually automatically considered a material change in circumstances which warrants reconsideration of the current custody/visitation order.
Finally, it's important to note that even if you prove the material change standard, all that you've done is get the court to say "ok, we can reopen the issue." In other words, that's not the end of the inquiry.
Spousal support orders
Spousal support has its own set of standards as there are three basic types of spousal support orders (you can get more detail about this here). You can have spousal support ordered independently of a divorce (either in the J&DR Court or a Circuit Court Separate Maintenance Decree), you can have indefinite spousal support awarded as part of your divorce, or you can have spousal support for a defined duration awarded as part of your divorce.
For spousal support ordered independently of the divorce, the "material change" standard is used. However, there's also an important note to remember for such support - in some cases it ends automatically as soon as you are divorced. If your separate spousal support award comes from a Separate Maintenance decree, it ends as soon as you are divorced. If it comes from a J&DR case, it's status following a divorce is actually uncertain under the current caselaw, but it may very well automatically terminate as well.
For indefinite spousal support ordered as part of a divorce, the "material change" standard is used in the same way as custody/visitation and child support.
For defined duration spousal support, however, the amount and/or duration can only be modified (up or down) if the moving party proves either that (i) the "material change" standard has been met and that material change was not something reasonably foreseen at the time the support award was entered, or (ii) something the court anticipated would happen when it made the support order, and which was significant in the court making that order, has not happened through no fault of the moving party.
As you can see, defined duration spousal support is complicated to modify. Its "material change" standard is much harder to meet than the normal "material change" standard (since you also have to prove that the material change is not something that could have been foreseen at the time of the award - a very hard thing to prove), and its "something the court anticipated would happen" standard is also very difficult to show.
Like with custody/visitation and child support, however, once you've opened the door to modification doesn't mean that's the end of the case.
I've proven modification can happen... now what?
Once you've met whatever standard you need to in order to get in the modification door, the whole case essentially reopens. All elements need to be re-proven or agreed to. In all cases except indefinite spousal support from a divorce, the same standard is used in judging your modification hearing now as was used in judging the original hearing.
Now, this is where you have to be careful about picking your cases. Note that once this happens, it's actually possible for your situation to get worse. If you are seeking to reduce your child support obligation because the other side's income has gone up, but then it turns out that their work-related child care expenses have also gone up, it's very possible that support will actually increase. So, pick your modification motions carefully.
So, what does all of that mean? Well, for custody/visitation, the judge will have to go through all of the factors in Virginia Code Section 20-124.3 and can then make a new custody and/or visitation order as though the previous one never existed. Now, practically, that doesn't really happen because several of the factors themselves (for example, the parent that has been the primary caretaker of the child) are influenced heavily by the previous orders, but in theory, the judge rules as though he is ordering custody/visitation for the first time.
For child support, this means that the court must gather all information needed to determine the child support guideline numbers under Virginia Code Section 20-108.2, and then consider any deviations under Virginia Code Section 20-108.1(B).
For non-divorce spousal support, the court will again consider the needs of the receiving spouse and ability to pay of the payor spouse. For defined duration divorce spousal support, the court then must again consider all of the factors in Virginia Code Section 20-107.1(E) and, like with custody/visitation, make its award as though it was doing so for the first time (although, again, the previous award will affect some of the factors).
Indefinite spousal support ordered as part of a divorce is the only exception here. While the original award had to be made in accordance with the factors of Virginia Code Section 20-107.1(E), that's no longer the case at modification. Instead, Virginia Code Section 20-109(A) only says that the court may modify the award "as the circumstances may make proper." This language has been interpreted by the Court of Appeals to mean that an indefinite spousal support award from a divorce does not need to be decided based on the previously used factors, but rather the trial court judge now has discretion to make whatever changes he or she thinks are proper given the new circumstances.
Retroactivity
Now, for support orders, I often deal with clients who find out that their ex-spouse is earning substantially higher income months, even years after the fact. They typically want to get back the money that they paid or should have received for all of that time. Unfortunately, I have to be the bearer of bad news.
With two exceptions, child support and spousal support cannot be modified retroactively. In other words, the modification occurs as of the date of the new order, with only two exceptions.
The first exception is that, in recognition of how long the legal process may take, and to discourage intentional foot-dragging, the judge can, in his or her discretion, order that the modification be made retroactive as far back as the date that the other party was served with the modification motion. So, if your ex got her new income in June of 2012, you found out about it in June of 2013, you filed to modify and served those papers in August of 2013, and the hearing on the modification was held and the new order entered in April of 2014, the court could - again, this is the judge's choice - make the modification retroactive as far back as August of 2013, but no earlier, and the judge, again in his or her discretion, could make the new award retroactive only a month or two, or not retroactive at all.
The second exception concerns spousal support (all kinds) where the person receiving support has re-married. When someone receives spousal support, they have an affirmative duty in Virginia to inform the payor spouse of the re-marriage so that the payor spouse can stop paying - since, unless expressly agreed to otherwise in a property settlement agreement, a remarriage of the ex-spouse receiving support automatically terminates spousal support. In that case, where the payee spouse has failed in his or her affirmative duty to inform the payor of their remarriage, then the termination of the spousal support can be made retroactive to the date of the remarriage, and the payee can be ordered to reimburse the payor for all post-remarriage payments, plus interest.
Other than those two exceptions, however, that's it. No retroactive support - so you need to be proactive about finding out if you are eligible for a modification.
Conclusion
The law of custody/visitation, child support, and spousal support modification is very complicated, and can be virtually impossible to navigate without an attorney. If you have questions about a modification for a case you are involved in, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Introduction
One of the most common questions I get after a support order is entered in a case, and that I used to get for custody/visitation orders when I handled those cases, is "so, what happens now?" This is quickly followed by a string of "so, what happens if a, b, c, x, y, and/or z happens?" You see, most people understand that support and custody orders can change, but have little comprehension of how. This is because the rules vary across types of orders and courts.
In today's blog post, I will discuss the basics of when and how support and custody orders change.
What court are you in?
As odd as it may seem, it does matter which court your case is in as of your last order. The rules vary somewhat between the Circuit Court and the Juvenile & Domestic Relations Court (for a primer on the differences between these courts generally, you can check out my series on our trial courts starting here). So, your first step is to figure out what court you are in.
If the order you are trying to change was entered in the J&DR Court, and was never appealed, you can be fairly confident that your case is still in the J&DR Court. If it was in the Circuit Court, however, you need to review the Order itself. If the Order contains a provision "remanding" matters related to custody and/or support to the J&DR Court, then you are in the J&DR Court. If it does not, you should still be in the Circuit Court, but check the court file to make sure no one later filed a motion to remand.
Once you know what court you are in, you can file a Motion to Reopen and Modify in the Circuit Court, or a Petition to Modify in the J&DR Court. In the Circuit Court, usually you will have to take care of serving the other side, and getting the case set for trial. In the J&DR Court, they will usually take care of that for you, although you need to check with your local court for their rules.
What kind of order are you trying to change?
The next inquiry is to figure out what kind of order you are trying to change. This is because the standards are slightly different between custody/visitation and child support orders on the one hand, and spousal support orders on the other. As you might imagine, the courts have long ago concluded that it is harmful to all parties involved if people can keep coming back to court and fighting over custody/visitation and support again and again. As a result, various standards have been adopted for determining if a modification should be allowed.
Custody/visitation and child support orders
For custody/visitation orders and child support orders, you have the "material change" standard. The rule basically is "has there been a material change in circumstances that warrants reconsideration of the current order?" It is the party moving for the modification who has the burden to prove that the answer is "yes."
There are several key phrases in here, however, to remember. First, the change must be material. In other words, it can't be minor. A parent missing one visitation session, or having their income go up by $10 a month is generally not going to be considered material. It must be something that actually alters in a noticeable way the reality that was in place when the previous order was entered.
The second key phrase is that the material change must warrant a reconsideration of the current order. A parent relocating, for example, is almost always a material change in circumstances for custody/visitation - but if their move does not alter the child's life significantly, it may not warrant a reconsideration of the award. In the child support context, there may be a material change in income levels, but, for example, a guideline deviation factor that had been used previously might still warrant keeping support the same. Note that a custodial parent intentionally, and without just cause, withholding visitation from the non-custodial parent which that parent is entitled to, is virtually automatically considered a material change in circumstances which warrants reconsideration of the current custody/visitation order.
Finally, it's important to note that even if you prove the material change standard, all that you've done is get the court to say "ok, we can reopen the issue." In other words, that's not the end of the inquiry.
Spousal support orders
Spousal support has its own set of standards as there are three basic types of spousal support orders (you can get more detail about this here). You can have spousal support ordered independently of a divorce (either in the J&DR Court or a Circuit Court Separate Maintenance Decree), you can have indefinite spousal support awarded as part of your divorce, or you can have spousal support for a defined duration awarded as part of your divorce.
For spousal support ordered independently of the divorce, the "material change" standard is used. However, there's also an important note to remember for such support - in some cases it ends automatically as soon as you are divorced. If your separate spousal support award comes from a Separate Maintenance decree, it ends as soon as you are divorced. If it comes from a J&DR case, it's status following a divorce is actually uncertain under the current caselaw, but it may very well automatically terminate as well.
For indefinite spousal support ordered as part of a divorce, the "material change" standard is used in the same way as custody/visitation and child support.
For defined duration spousal support, however, the amount and/or duration can only be modified (up or down) if the moving party proves either that (i) the "material change" standard has been met and that material change was not something reasonably foreseen at the time the support award was entered, or (ii) something the court anticipated would happen when it made the support order, and which was significant in the court making that order, has not happened through no fault of the moving party.
As you can see, defined duration spousal support is complicated to modify. Its "material change" standard is much harder to meet than the normal "material change" standard (since you also have to prove that the material change is not something that could have been foreseen at the time of the award - a very hard thing to prove), and its "something the court anticipated would happen" standard is also very difficult to show.
Like with custody/visitation and child support, however, once you've opened the door to modification doesn't mean that's the end of the case.
I've proven modification can happen... now what?
Once you've met whatever standard you need to in order to get in the modification door, the whole case essentially reopens. All elements need to be re-proven or agreed to. In all cases except indefinite spousal support from a divorce, the same standard is used in judging your modification hearing now as was used in judging the original hearing.
Now, this is where you have to be careful about picking your cases. Note that once this happens, it's actually possible for your situation to get worse. If you are seeking to reduce your child support obligation because the other side's income has gone up, but then it turns out that their work-related child care expenses have also gone up, it's very possible that support will actually increase. So, pick your modification motions carefully.
So, what does all of that mean? Well, for custody/visitation, the judge will have to go through all of the factors in Virginia Code Section 20-124.3 and can then make a new custody and/or visitation order as though the previous one never existed. Now, practically, that doesn't really happen because several of the factors themselves (for example, the parent that has been the primary caretaker of the child) are influenced heavily by the previous orders, but in theory, the judge rules as though he is ordering custody/visitation for the first time.
For child support, this means that the court must gather all information needed to determine the child support guideline numbers under Virginia Code Section 20-108.2, and then consider any deviations under Virginia Code Section 20-108.1(B).
For non-divorce spousal support, the court will again consider the needs of the receiving spouse and ability to pay of the payor spouse. For defined duration divorce spousal support, the court then must again consider all of the factors in Virginia Code Section 20-107.1(E) and, like with custody/visitation, make its award as though it was doing so for the first time (although, again, the previous award will affect some of the factors).
Indefinite spousal support ordered as part of a divorce is the only exception here. While the original award had to be made in accordance with the factors of Virginia Code Section 20-107.1(E), that's no longer the case at modification. Instead, Virginia Code Section 20-109(A) only says that the court may modify the award "as the circumstances may make proper." This language has been interpreted by the Court of Appeals to mean that an indefinite spousal support award from a divorce does not need to be decided based on the previously used factors, but rather the trial court judge now has discretion to make whatever changes he or she thinks are proper given the new circumstances.
Retroactivity
Now, for support orders, I often deal with clients who find out that their ex-spouse is earning substantially higher income months, even years after the fact. They typically want to get back the money that they paid or should have received for all of that time. Unfortunately, I have to be the bearer of bad news.
With two exceptions, child support and spousal support cannot be modified retroactively. In other words, the modification occurs as of the date of the new order, with only two exceptions.
The first exception is that, in recognition of how long the legal process may take, and to discourage intentional foot-dragging, the judge can, in his or her discretion, order that the modification be made retroactive as far back as the date that the other party was served with the modification motion. So, if your ex got her new income in June of 2012, you found out about it in June of 2013, you filed to modify and served those papers in August of 2013, and the hearing on the modification was held and the new order entered in April of 2014, the court could - again, this is the judge's choice - make the modification retroactive as far back as August of 2013, but no earlier, and the judge, again in his or her discretion, could make the new award retroactive only a month or two, or not retroactive at all.
The second exception concerns spousal support (all kinds) where the person receiving support has re-married. When someone receives spousal support, they have an affirmative duty in Virginia to inform the payor spouse of the re-marriage so that the payor spouse can stop paying - since, unless expressly agreed to otherwise in a property settlement agreement, a remarriage of the ex-spouse receiving support automatically terminates spousal support. In that case, where the payee spouse has failed in his or her affirmative duty to inform the payor of their remarriage, then the termination of the spousal support can be made retroactive to the date of the remarriage, and the payee can be ordered to reimburse the payor for all post-remarriage payments, plus interest.
Other than those two exceptions, however, that's it. No retroactive support - so you need to be proactive about finding out if you are eligible for a modification.
Conclusion
The law of custody/visitation, child support, and spousal support modification is very complicated, and can be virtually impossible to navigate without an attorney. If you have questions about a modification for a case you are involved in, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
Friday, April 17, 2015
Relevant Changes in Virginia Law - 2015 Edition
As always, before reading this post, please review my disclaimer by clicking on the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
First of all, my apologies that getting a new post up has taken so long. The last couple of weeks have been insane work-wise, but hopefully will be calming down soon.
We are finally at the point in the year where all legislative work for the Virginia General Assembly has wrapped up, and we know what new laws will be going on the books this year. As I did last year, I have reviewed this year's new laws for ones that are relevant to matters I have posted on this blog. Unlike last year, which saw major changes to the VRLTA and to the child support guidelines, this year's law changes are not substantial changes to blog posts I have made, but they are nonetheless important to know.
As mentioned last year, all laws - unless explicitly stating otherwise - go into effect on July 1st.
Important Change to Defamation Statute of Limitations
In my post on June 5, 2014, I discussed statutes of limitations in Virginia. Included in that discussion is that the statute of limitations for defamation is 1 year, and the clock begins to run as soon as the defamatory statement is made.
Well, we live in a new era in defamation. In the olden days, if something defamatory and harmful were said about you, it was usually pretty easy to find out who did it so you could sue. Not so in the era of the internet where anonymous "trolling" is commonplace. The General Assembly has finally recognized this, and passed HB1635, which states that if the defamatory statement is made on the internet by an anonymous user or a user with a false identity, you can file an action against them as "John Doe" (anonymous) defendants and the statute of limitations will be tolled until you find their identities or you reasonably should have.
A discerning reader might wonder why this is necessary, since normally the filing of a lawsuit tolls the statute of limitations anyways. However, in general, the filing of a lawsuit against anonymous defendants does not toll the statute of limitations because the statute applies to each individual defendant, not simply the case, so the actual defendants still have a right, usually, to be sued within the statutory time period. This new law will create an exception to that.
Retaliatory Conduct Finally Prohibited in Non-VRLTA Leases
I have written again and again about differences between leases governed by the Virginia Residential Landlord and Tenant Act and leases that are not. There is a difference I never covered, however, because I feared an unscrupulous landlord could read my post covering it and engage in abusive conduct. Specifically - the VRLTA explicitly banned landlords from "retaliatory conduct" (otherwise legal conduct done by the landlord as retaliation for the tenant doing something he or she is legally entitled to do) while non-VRLTA leases had no such prohibition. I've handled situations myself where landlords engaged in clearly retaliatory conduct, but as their lease was not governed by the VRLTA, the tenant had no remedy.
This difference has finally been corrected. HB1905 actually makes it easier to prove retaliation than it had been before, and expands the new retaliation definition to also apply to non-VRLTA leases, and expressly prohibits such conduct by non-VRLTA landlords.
Now it's worth noting that the non-VRLTA rule does not have a non-waiver provision - so theoretically this right can be waived in a non-VRLTA lease, but I have a hard time believing that a lease authorizing a landlord to engage in retaliatory conduct is going to go over too well with potential tenants or with a judge.
Post-Majority Child Support for Disabled Children
Another topic I haven't directly addressed in this blog, but is in the background of many of my posts on child support, is the topic of when child support ends. In Virginia, the rule has been, since at least the 1970's, that child support ends when the child turns 18, or, if the child is a full-time high school student living with the custodial parent, then it ends at the earlier date of the child graduating from high school or the child turning 19.
There has been for some time, however, an exception to even that. If the child is permanently disabled, unable to support him or herself, and still living in the home of the parent receiving support, child support could be "continued" for so long as those three conditions (permanently disabled, unable to support self, and living in home of parent receiving support) continued to apply.
Well, litigation ensued regularly over the definition of the word "continued." Some courts held that support failed to "continue" if the support order ever terminated after the child turned 18, and so no disabled child support could be ordered. Other courts ruled that no, support "continued" any time there was child support while the child was still a minor - even if the support had been temporarily terminated, and support only failed to "continue" if there had never been child support at all. Even in those latter cases, however, parents found patently unfair results where formerly married parents got divorced after their disabled child had turned 18 (or 19, depending) and now no support order could be entered.
This year, the General Assembly has sought to undo this confusion and unfairness by passage of HB2383 and SB923, colloquially called "Conner's Law" after a severely disabled child whose father left his mother when he was just over 19 and refused to provide Conner any support. Conner's Law gets rid of the "continue" requirement altogether, and now the only requirement for a disabled child to be eligible for support (if the child meets the permanently disabled, unable to support self, and living in home of parent receiving support requirements) is that the disability must have appeared before the child turned 18 (or 19, if the conditions for support ending at 19 were met).
Conclusion
As I mentioned, not nearly as dramatic a set of law changes affecting my blog as we had last year - nonetheless, these are important changes to know about.
Introduction
First of all, my apologies that getting a new post up has taken so long. The last couple of weeks have been insane work-wise, but hopefully will be calming down soon.
We are finally at the point in the year where all legislative work for the Virginia General Assembly has wrapped up, and we know what new laws will be going on the books this year. As I did last year, I have reviewed this year's new laws for ones that are relevant to matters I have posted on this blog. Unlike last year, which saw major changes to the VRLTA and to the child support guidelines, this year's law changes are not substantial changes to blog posts I have made, but they are nonetheless important to know.
As mentioned last year, all laws - unless explicitly stating otherwise - go into effect on July 1st.
Important Change to Defamation Statute of Limitations
In my post on June 5, 2014, I discussed statutes of limitations in Virginia. Included in that discussion is that the statute of limitations for defamation is 1 year, and the clock begins to run as soon as the defamatory statement is made.
Well, we live in a new era in defamation. In the olden days, if something defamatory and harmful were said about you, it was usually pretty easy to find out who did it so you could sue. Not so in the era of the internet where anonymous "trolling" is commonplace. The General Assembly has finally recognized this, and passed HB1635, which states that if the defamatory statement is made on the internet by an anonymous user or a user with a false identity, you can file an action against them as "John Doe" (anonymous) defendants and the statute of limitations will be tolled until you find their identities or you reasonably should have.
A discerning reader might wonder why this is necessary, since normally the filing of a lawsuit tolls the statute of limitations anyways. However, in general, the filing of a lawsuit against anonymous defendants does not toll the statute of limitations because the statute applies to each individual defendant, not simply the case, so the actual defendants still have a right, usually, to be sued within the statutory time period. This new law will create an exception to that.
Retaliatory Conduct Finally Prohibited in Non-VRLTA Leases
I have written again and again about differences between leases governed by the Virginia Residential Landlord and Tenant Act and leases that are not. There is a difference I never covered, however, because I feared an unscrupulous landlord could read my post covering it and engage in abusive conduct. Specifically - the VRLTA explicitly banned landlords from "retaliatory conduct" (otherwise legal conduct done by the landlord as retaliation for the tenant doing something he or she is legally entitled to do) while non-VRLTA leases had no such prohibition. I've handled situations myself where landlords engaged in clearly retaliatory conduct, but as their lease was not governed by the VRLTA, the tenant had no remedy.
This difference has finally been corrected. HB1905 actually makes it easier to prove retaliation than it had been before, and expands the new retaliation definition to also apply to non-VRLTA leases, and expressly prohibits such conduct by non-VRLTA landlords.
Now it's worth noting that the non-VRLTA rule does not have a non-waiver provision - so theoretically this right can be waived in a non-VRLTA lease, but I have a hard time believing that a lease authorizing a landlord to engage in retaliatory conduct is going to go over too well with potential tenants or with a judge.
Post-Majority Child Support for Disabled Children
Another topic I haven't directly addressed in this blog, but is in the background of many of my posts on child support, is the topic of when child support ends. In Virginia, the rule has been, since at least the 1970's, that child support ends when the child turns 18, or, if the child is a full-time high school student living with the custodial parent, then it ends at the earlier date of the child graduating from high school or the child turning 19.
There has been for some time, however, an exception to even that. If the child is permanently disabled, unable to support him or herself, and still living in the home of the parent receiving support, child support could be "continued" for so long as those three conditions (permanently disabled, unable to support self, and living in home of parent receiving support) continued to apply.
Well, litigation ensued regularly over the definition of the word "continued." Some courts held that support failed to "continue" if the support order ever terminated after the child turned 18, and so no disabled child support could be ordered. Other courts ruled that no, support "continued" any time there was child support while the child was still a minor - even if the support had been temporarily terminated, and support only failed to "continue" if there had never been child support at all. Even in those latter cases, however, parents found patently unfair results where formerly married parents got divorced after their disabled child had turned 18 (or 19, depending) and now no support order could be entered.
This year, the General Assembly has sought to undo this confusion and unfairness by passage of HB2383 and SB923, colloquially called "Conner's Law" after a severely disabled child whose father left his mother when he was just over 19 and refused to provide Conner any support. Conner's Law gets rid of the "continue" requirement altogether, and now the only requirement for a disabled child to be eligible for support (if the child meets the permanently disabled, unable to support self, and living in home of parent receiving support requirements) is that the disability must have appeared before the child turned 18 (or 19, if the conditions for support ending at 19 were met).
Conclusion
As I mentioned, not nearly as dramatic a set of law changes affecting my blog as we had last year - nonetheless, these are important changes to know about.
Thursday, April 2, 2015
Posting Hiatus
Starting this upcoming Monday I have a multi-day trial, and I'm afraid preparations for that are not going to allow me to put a post together next week. Given when that trial may end, and the hearings I have coming up next Friday, I'd put the odds at 50/50 of me having a post next week as well. I apologize for the inconvenience, and should be back in good order soon.
Thursday, March 26, 2015
Violating Court Orders in Virginia Family Law Cases - What Happens Next?
As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles apply only to the Commonwealth of Virginia.
Introduction
One of the harshest realities that family law clients face is that just because a court orders your spouse, ex-spouse, significant other, etc., to do something doesn't mean he or she actually will - and unless you take action, their violations will go entirely unpunished. The result of this is that I often get clients come to me with an old order that's been violated for years and ask me why the court hasn't done anything - when in reality, they also have done nothing, and at this point it may be too late.
In today's blog post, I will discuss what to do if your ex is violating a family law order, some considerations to think about, and what can happen as a result of your actions.
Orders vs. Judgments
I have covered before the difference between orders and judgments - including the basic rule that a judgment does not require anyone to do anything, while an order does. I believe I have also mentioned that in a family law context, almost all orders made by the court are orders, not judgments. As a result, if you are dealing with a family law ruling - custody/visitation order, an order dividing property, ordering support to be paid, etc., the odds are you are dealing with an order that actually requires each party to take certain actions. Additionally if you had a property settlement agreement that was incorporated into a court order, you are also obligated by order to follow that agreement. This means failure to follow the order is contempt of court, and as a result the violator can face some serious penalties as long as the right procedures are followed.
Orders are not self-executing
That all being said, orders do not take care of themselves. If the parties violate an order, nothing happens unless the other party does something. There's a practical reason for this - the court simply cannot police its own orders, but also a logical one - if you both don't like an order and can agree to do something differently, why should the court interfere with that agreement?
The result of all of this means, again, if your ex violates the order, it's on you to do something about it - it won't just take care of itself. There is a slight exception that if your support is being collected by DCSE, DCSE might take action, but it is no way guaranteed that they will.
So, what should you do?
Realistically, the first step to take is to go to an attorney. There's a decent chance you will get an award of your attorneys' fees as a result of the action you take, but even if you don't, an attorney is going to know best how to compel your ex to comply. The most common approach is to request that the court issue a "Rule to Show Cause." This is an Order that requires the other party to appear before the court and defend their actions, and if they cannot do so, they will be held in contempt of court.
What happens if they are found in contempt?
So, if your ex is found by the court to be in contempt, the court has a wide range of options at its disposal. It can enter a monetary judgment against your ex (meaning you can then garnish his or her wages to collect what you are owed), it can order your ex to pay fines, it can even sentence your ex to jail time. Most violations of court orders have a maximum sentence of ten days, but failure to pay support can result in a sentence of up to a year in jail. Frequently if someone is sent to jail for non-payment of support, the court will set a "purge" amount - an amount less than what they owe, but still a significant amount - that they can pay you to at least get out of jail. You'd be shocked how many people who "don't have the money to pay" find the purge money all of the sudden when facing serious jail time.
Typically, you will also be awarded your attorneys' fees in pursuing the contempt charge, and continuing violations of the order can be re-raised for new contempt charges since continuing to violate the order would be considered new violations.
What if they don't show up?
Of course, all of this depends on their showing up for court on the Rule to Show Cause. If they don't show up, however, and they were served personally with the Rule (rather than served via a family member or posting on their front door), then the court can find them summarily in contempt based on just your evidence. Moreover, the court can issue a "capias," which is a warrant authorizing their immediate arrest to be held until they answer for the charges raised.
Right to counsel
An important side note is to understand that, as a contempt proceeding is quasi-criminal and your ex faces potential jail time, if your ex actually is indigent, he or she will be entitled to have the court appoint an attorney for them. As a result, you cannot use a Rule to Show Cause to take advantage of the fact that your ex does not have a lawyer.
Some considerations
In general, contempt of court is a serious charge, and courts are not going to have patience for someone being brought in front of them for petty violations. As a result, if your ex shorted you $5 on support one month, that's probably not worth a Rule. Nonetheless, a series of petty violations may add up to a not so petty violation, and then you can bring a Rule for all of them.
Another consideration is that support has a statute of limitations. Support automatically becomes a judgment when unpaid, and in 2011 the Virginia Supreme Court ruled that this meant that the 20 year statute of limitations on collecting judgments applied. As a result, if unpaid support is more than 20 years old, you are out of luck.
Additionally, an order becoming impossible to follow is also a defense against contempt. So, if you don't go after your ex until they are broke and unemployed, or until the car they were supposed to sign over to you has been destroyed in a wreck, you may be out of luck anyways.
The end result is, while you probably should let minor violations go, when a not so minor violation occurs, you really should not sit on your rights - you need to take action right away.
Conclusion
There are few things more frustrating than sitting there, doing what you are supposed to do, while your ex flagrantly refuses to do the same. Even more frustrating, though, is that if you do nothing about it, your ex will get away with it. A lawyer will have the best idea, however, of how to compel your ex to comply. If you have a family law order that your ex is violating, 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
One of the harshest realities that family law clients face is that just because a court orders your spouse, ex-spouse, significant other, etc., to do something doesn't mean he or she actually will - and unless you take action, their violations will go entirely unpunished. The result of this is that I often get clients come to me with an old order that's been violated for years and ask me why the court hasn't done anything - when in reality, they also have done nothing, and at this point it may be too late.
In today's blog post, I will discuss what to do if your ex is violating a family law order, some considerations to think about, and what can happen as a result of your actions.
Orders vs. Judgments
I have covered before the difference between orders and judgments - including the basic rule that a judgment does not require anyone to do anything, while an order does. I believe I have also mentioned that in a family law context, almost all orders made by the court are orders, not judgments. As a result, if you are dealing with a family law ruling - custody/visitation order, an order dividing property, ordering support to be paid, etc., the odds are you are dealing with an order that actually requires each party to take certain actions. Additionally if you had a property settlement agreement that was incorporated into a court order, you are also obligated by order to follow that agreement. This means failure to follow the order is contempt of court, and as a result the violator can face some serious penalties as long as the right procedures are followed.
Orders are not self-executing
That all being said, orders do not take care of themselves. If the parties violate an order, nothing happens unless the other party does something. There's a practical reason for this - the court simply cannot police its own orders, but also a logical one - if you both don't like an order and can agree to do something differently, why should the court interfere with that agreement?
The result of all of this means, again, if your ex violates the order, it's on you to do something about it - it won't just take care of itself. There is a slight exception that if your support is being collected by DCSE, DCSE might take action, but it is no way guaranteed that they will.
So, what should you do?
Realistically, the first step to take is to go to an attorney. There's a decent chance you will get an award of your attorneys' fees as a result of the action you take, but even if you don't, an attorney is going to know best how to compel your ex to comply. The most common approach is to request that the court issue a "Rule to Show Cause." This is an Order that requires the other party to appear before the court and defend their actions, and if they cannot do so, they will be held in contempt of court.
What happens if they are found in contempt?
So, if your ex is found by the court to be in contempt, the court has a wide range of options at its disposal. It can enter a monetary judgment against your ex (meaning you can then garnish his or her wages to collect what you are owed), it can order your ex to pay fines, it can even sentence your ex to jail time. Most violations of court orders have a maximum sentence of ten days, but failure to pay support can result in a sentence of up to a year in jail. Frequently if someone is sent to jail for non-payment of support, the court will set a "purge" amount - an amount less than what they owe, but still a significant amount - that they can pay you to at least get out of jail. You'd be shocked how many people who "don't have the money to pay" find the purge money all of the sudden when facing serious jail time.
Typically, you will also be awarded your attorneys' fees in pursuing the contempt charge, and continuing violations of the order can be re-raised for new contempt charges since continuing to violate the order would be considered new violations.
What if they don't show up?
Of course, all of this depends on their showing up for court on the Rule to Show Cause. If they don't show up, however, and they were served personally with the Rule (rather than served via a family member or posting on their front door), then the court can find them summarily in contempt based on just your evidence. Moreover, the court can issue a "capias," which is a warrant authorizing their immediate arrest to be held until they answer for the charges raised.
Right to counsel
An important side note is to understand that, as a contempt proceeding is quasi-criminal and your ex faces potential jail time, if your ex actually is indigent, he or she will be entitled to have the court appoint an attorney for them. As a result, you cannot use a Rule to Show Cause to take advantage of the fact that your ex does not have a lawyer.
Some considerations
In general, contempt of court is a serious charge, and courts are not going to have patience for someone being brought in front of them for petty violations. As a result, if your ex shorted you $5 on support one month, that's probably not worth a Rule. Nonetheless, a series of petty violations may add up to a not so petty violation, and then you can bring a Rule for all of them.
Another consideration is that support has a statute of limitations. Support automatically becomes a judgment when unpaid, and in 2011 the Virginia Supreme Court ruled that this meant that the 20 year statute of limitations on collecting judgments applied. As a result, if unpaid support is more than 20 years old, you are out of luck.
Additionally, an order becoming impossible to follow is also a defense against contempt. So, if you don't go after your ex until they are broke and unemployed, or until the car they were supposed to sign over to you has been destroyed in a wreck, you may be out of luck anyways.
The end result is, while you probably should let minor violations go, when a not so minor violation occurs, you really should not sit on your rights - you need to take action right away.
Conclusion
There are few things more frustrating than sitting there, doing what you are supposed to do, while your ex flagrantly refuses to do the same. Even more frustrating, though, is that if you do nothing about it, your ex will get away with it. A lawyer will have the best idea, however, of how to compel your ex to comply. If you have a family law order that your ex is violating, 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, March 19, 2015
Virginia Law and the Blog Part III - More Questions About Past Posts
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: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog. Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner. Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).
"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"
This is a question I get asked a lot in some form or another. If your ultimate goal is to simply get out of your lease, both approaches present problems. This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating. This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem. On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.
On balance, you're probably better off going with the 21/30 notice if lease termination is your goal. This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months. Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.
At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed. A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.
"I fell on hard times and was no longer able to afford my rent. Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me. Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"
Talk to a lawyer, immediately. Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession. This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard. If they don't agree, however, you may have a problem.
Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more. However, there is a big exception.
First, you need to figure out whether or not your lease is covered by the VRLTA. If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck. You would be better off holding on to the money to help you move. If your lease is under the VRLTA, however, you can make the payment to the leasing office. From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation. If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction. If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid. If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.
"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant. What about if you are undocumented?"
The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice. As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce. As a result, yes, you absolutely may file for divorce even if you are here illegally. That being said, you can expect some obstacles. First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally. Second, our trials are public record. If you are trying to remain low key, going to court is not a great way to do this.
In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.
"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support. Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"
Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married. Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery). If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery. This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.
Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating. But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life. I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married. So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.
That being said, a "relationship" does not have to equal "sex." As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case. It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context. If you can keep your pants on until you're divorced, you should be ok.
Conclusion
As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today. You can expect a couple more of these in the next month or two. If you need further assistance regarding any issue raised today, you should 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!
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog. Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner. Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).
"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"
This is a question I get asked a lot in some form or another. If your ultimate goal is to simply get out of your lease, both approaches present problems. This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating. This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem. On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.
On balance, you're probably better off going with the 21/30 notice if lease termination is your goal. This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months. Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.
At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed. A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.
"I fell on hard times and was no longer able to afford my rent. Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me. Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"
Talk to a lawyer, immediately. Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession. This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard. If they don't agree, however, you may have a problem.
Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more. However, there is a big exception.
First, you need to figure out whether or not your lease is covered by the VRLTA. If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck. You would be better off holding on to the money to help you move. If your lease is under the VRLTA, however, you can make the payment to the leasing office. From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation. If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction. If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid. If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.
"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant. What about if you are undocumented?"
The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice. As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce. As a result, yes, you absolutely may file for divorce even if you are here illegally. That being said, you can expect some obstacles. First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally. Second, our trials are public record. If you are trying to remain low key, going to court is not a great way to do this.
In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.
"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support. Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"
Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married. Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery). If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery. This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.
Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating. But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life. I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married. So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.
That being said, a "relationship" does not have to equal "sex." As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case. It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context. If you can keep your pants on until you're divorced, you should be ok.
Conclusion
As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today. You can expect a couple more of these in the next month or two. If you need further assistance regarding any issue raised today, you should 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!
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