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 herein apply only to the Commonwealth of Virginia.
Introduction
When I first discussed how child support is determined, I noted that, in theory at least, most cases of child support involve a relatively simple calculation. You plug in each parent's income, any support for other children, work-related child care, and health insurance costs, and then a formula puts out how much child support should be. In that same post, I mentioned a number of complications that sometimes arise that make the formula itself more complicated. What I did not do, however, was get into some of the complications that make calculating the very numbers that go into the formula difficult. Almost every number that goes into the formula could have one or two blog posts of its own to discuss - but how to determine "income" is probably the one that could have by far the most. In today's blog post, I will discuss just one of those potential income calculation complications - self-employment.
When the formula for child support was derived, legislators envisioned two of your "typical" parents. People employed by companies that pay them a consistent and pre-determined salary. Yet, in the real world, truly "salaried" employees are not nearly as common as we think, and the law applies to all parents in child support situations. One type of parent is going to be those who are self-employed. Your typical self-employed individual not only has no salary, but has an "income" that varies from year to year, month to month, even day to day, depending on how business is going. How on Earth do we calculate that person's income to go into the child support formula?
Child Support Based on "Current" Circumstances
One of the first rules of child support is that all numbers used in the child support formula are supposed to represent the parents' current situation. Your current situation, however, includes the fact that you likely still have money from a previous month's income, and are making plans in accordance with what to expect in a future month. Not to mention, since income every day can change, how do we project a monthly income number (which is what's used in the formula) on the very day of the court hearing?
No Single Formula
It might not surprise you to know that, since self-employment income can be so fact specific, the Court of Appeals and Virginia Supreme Court have never adopted a single formula or test for determining a self-employed person's income. In fact, the appellate courts have upheld a wide array of tests and formulas used by trial judges under what's known as the "abuse of discretion" standard of review - meaning a trial judge will only be reversed if his means of calculating income was pretty obviously unreasonable or based on an error of law (such as saying support is based on past income, rather than on an attempt to determine current income). This means that you will need to convince the judge of what means of calculation best reflects the self-employed individual's current income.
My general approach is that if the self-employed individual is in the same job as he was the previous year, and there's not been a substantial shift in the market, I will start with the business income reported on the individual's taxes the previous year. Then, I will review all of his deductions to remove deductions that were not true "business expenses" (since "gross income" is the measure of income for child support) to yield a final "gross income" number for the previous year. Finally, I will ask for statements showing monthly revenues the previous year and monthly revenues this year to do a year to year same-month comparison (comparing January to January, February to February, etc.). If I see a consistent year over year increase or decrease, I will apply that percentage increase or decrease to the previous year's final number to get my anticipated "current year" income number, which I will then divide by 12.
Obviously this formula is not perfect, and I don't apply it to every situation. Sometimes I'll use a three year, or even five year average, and other times I'll purely extrapolate using current year numbers, but the above method is the one I use most often, and usually find success (meaning acceptance from the court) with.
Try Multiple Formulas
This is also one of those situations where each party can likely reasonably make a claim to numbers that are more beneficial to them. If you find a formula that gives you a better number (a higher income if it's the other side that's self-employed, or a lower income if it's you that's self-employed) and you can honestly say that your formula is reasonable, then there's no reason you should not be able to fight for the court to use that number. As a result, if you can think of multiple reasonable formulas, you should test them all out to see what numbers they yield for you. Hopefully the numbers will be similar to each other, but they may not be, especially if the self-employed person had one unusually good or unusually bad month or year.
No matter what, however, when you find the formula you want to use to calculate the self-employed person's income, be prepared to argue why that formula is the best way to estimate that person's "current" income. In the end, you need to convince the judge that the formula you used to calculate is the right approach, not necessarily that the number you found is the right one.
A Quick Reminder About Taxes
Remember that child support uses "gross income" which means that it uses income prior to the application of taxes. However, purely using gross income would put self-employed individuals at a disadvantage. When you are employed by a business, that business pays half of your Social Security and Medicare taxes for you, and the part that your employer pays is not part of your gross income - so your gross income is calculated after that part of the tax has been paid for you. For a self-employed person, however, they don't have an "employer" to pay that half of the tax, so self-employed people pay the full tax (this is called the "self-employment tax").
So, for a self-employed person, his "gross income" for child support is higher than the "gross income" of a non-self-employed person with the same actual income. As a result, the child support formula reduces half of the "self-employment tax" (the same share that would be paid by a private employer) from a self-employed person's gross income for child support purposes.
Conclusion
Child support is already a confusing and complicated set of calculations. When one parent is self-employed, figuring out that parent's income can create a whole new host of issues. If you are in a child support dispute, you or the other party (or both) are self-employed, and you need help with figuring out incomes, 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, July 31, 2015
Friday, July 17, 2015
FAQ on Same-Sex Marriage
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
Ever since the June 26th Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal nationwide, I've been inundated with questions from friends, family members, and former, current and potential future clients. There are a lot of changes that this ruling brings, and a lot of people don't understand how this ruling affects them. To that end, with this post, I hope to answer some of the most common questions I have been asked.
What impact will this ruling have on me, as a heterosexual, married person?
The ruling should have no impact on you at all. The ruling did not change the status of any existing "traditional" marriages - it just added new people to the mix of who could get married.
Will this ruling eventually allow people to a) marry relatives, b) marry animals or inanimate objects, and/or c) marry multiple people at once?
Probably not, no, and maybe. If the two relatives are both adults, consent to the marriage, and appear to be absent of any coercion, there could be an argument made that the logic applied to same-sex marriage here - that there is a basic right to the dignity of marriage for those who choose it - could allow for this marriage. I would have two reasons why I would argue otherwise, however. First, Obergefell was based on the notion that it was state-sanctioned discrimination against homosexuals that caused same-sex marriage to be outlawed - but what group of people is discriminated against when you bar marriage to relatives? To date, attraction exclusively or primarily to relatives is not known or understood to be an inherent, immutable trait the way we now understand homosexuality to be, so the fact that bans against relative marriage are not discriminatory would likely uphold them.
Second, there could be a compelling state interest in forbidding relative marriage - children. While states tried to say that same-sex couples' inability to have children was a compelling reason to disallow same-sex marriage this was ridiculous, because we allow many people who cannot have children to get married. However, in relative marriage, you face the possibility of people who can have children but really shouldn't due to the extensively researched genetic problems that arise when relatives have children together.
To me, while I can see the argument, those two reasons combined would prevent courts from extending Obergefell to incestuous marriage.
As for marrying animals or inanimate objects - this argument has always struck me as absurd. Marriage can only be awarded to two individuals who consent thereto. Neither animals nor inanimate objects are capable of offering their affirmative consent to a marriage. That alone makes Obergefell inapplicable to such marriages.
As for polygamy, this is the toughest. The two exceptions that I raised which would prevent incestuous marriage to proceed don't apply here. First, a large number of people belong (or claim to belong) to religious sects that authorize and even require plural marriage. There is a discrimination argument to be had, then. Moreover, there is nothing inherently wrong with people in your standard plural marriage having children. I am inclined to believe that the courts will find that, since there are government financial benefits associated with being married, the government has a compelling interest in limiting the size of marriages so as to prevent the cost of those benefits from getting out of hand. However, I am also inclined to believe that laws making plural marriage criminal (rather than just unrecognized by the state) are likely to be struck down in the not too distant future.
Will my church be forced to conduct same-sex marriages?
No, no it will not. How do I know? It's been fifty years since the Supreme Court said interracial marriages were required to be allowed, and there are still churches that refuse to marry interracial couples without consequence. The arguments that pastors are going to be rounded up and churches forced to allow marriages to happen inside, are largely ignorant fear-mongering. This is due to the combination of the free exercise and establishment clauses of the first amendment to the constitution largely forbidding the government from interfering in the internal religious conduct of churches.
Now, note that I'm just talking about churches here. "Public accommodations" are businesses that offer goods or services in exchange for payment to the general public. These do not include churches. These frequently do include, however, wedding photographers, wedding bakers, wedding florists, etc. Many states have laws banning public accommodations from discrimination on the basis of sexual orientation (along with race, religion, etc.). In those states, a florist cannot refuse to serve a same-sex wedding any more than she can refuse to serve an interracial wedding or a Jewish wedding. Public accommodation laws are well-known, and if one's religion will prevent them from following those laws, that person should not be entering the business.
I got married to my same-sex partner in Vermont in 2012 - how does this ruling affect me?
So, your marriage was recognized by the federal government in 2013 due to the Windsor case, so this ruling doesn't affect you particularly. However, if you moved to Virginia prior to October, 2014, when Virginia began recognizing same-sex marriages, it means you may very well have some property issues here. For example, if you purchased a home, you couldn't do it as "tenants by the entirety" - a favorable status of ownership that's allowed only to married couples. It may be worth re-titling your home so you can take advantage of this status.
In short, my recommendation to all people who were legally married to a same-sex partner prior to October of 2014 but lived in Virginia is to consult an attorney regarding both all property you own and your estate planning documents, to make sure nothing needs to be updated.
I married my same-sex partner in a church in Virginia in 2012 - does this ruling mean my marriage must now be recognized by the state?
NO! If you married in a religious or civil service a same-sex spouse in a state that did not allow such marriages prior to that state allowing them, neither this ruling nor any other court case allowing same-sex marriages retroactively legalized your marriage. This is because most states have requirements beyond merely getting married in a church to become legally married, and Obergefell did not relieve you of meeting that requirement.
In Virginia, for example, to get married, you must a) get a marriage license, b) get married within 60 days after that license is issued, and c) return the license to the court where you got it within 5 days of getting married. Before Obergefell (and in Virginia, before Bostic v. Rainey), you couldn't get a marriage license, meaning that your marriage did not comply with requirement a or c. As a result, you must now go get legally married in order to have your marriage recognized.
Conclusion
While Obergefell finally brought some clarity to issues of same-sex marriage, we still must deal with the realities of more than a decade of such marriages being allowed in some states and not others, as well as in some churches and not others. This will likely create issues for a few decades to come. If you have any question regarding the effect of this ruling on your own situation, 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
Ever since the June 26th Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal nationwide, I've been inundated with questions from friends, family members, and former, current and potential future clients. There are a lot of changes that this ruling brings, and a lot of people don't understand how this ruling affects them. To that end, with this post, I hope to answer some of the most common questions I have been asked.
What impact will this ruling have on me, as a heterosexual, married person?
The ruling should have no impact on you at all. The ruling did not change the status of any existing "traditional" marriages - it just added new people to the mix of who could get married.
Will this ruling eventually allow people to a) marry relatives, b) marry animals or inanimate objects, and/or c) marry multiple people at once?
Probably not, no, and maybe. If the two relatives are both adults, consent to the marriage, and appear to be absent of any coercion, there could be an argument made that the logic applied to same-sex marriage here - that there is a basic right to the dignity of marriage for those who choose it - could allow for this marriage. I would have two reasons why I would argue otherwise, however. First, Obergefell was based on the notion that it was state-sanctioned discrimination against homosexuals that caused same-sex marriage to be outlawed - but what group of people is discriminated against when you bar marriage to relatives? To date, attraction exclusively or primarily to relatives is not known or understood to be an inherent, immutable trait the way we now understand homosexuality to be, so the fact that bans against relative marriage are not discriminatory would likely uphold them.
Second, there could be a compelling state interest in forbidding relative marriage - children. While states tried to say that same-sex couples' inability to have children was a compelling reason to disallow same-sex marriage this was ridiculous, because we allow many people who cannot have children to get married. However, in relative marriage, you face the possibility of people who can have children but really shouldn't due to the extensively researched genetic problems that arise when relatives have children together.
To me, while I can see the argument, those two reasons combined would prevent courts from extending Obergefell to incestuous marriage.
As for marrying animals or inanimate objects - this argument has always struck me as absurd. Marriage can only be awarded to two individuals who consent thereto. Neither animals nor inanimate objects are capable of offering their affirmative consent to a marriage. That alone makes Obergefell inapplicable to such marriages.
As for polygamy, this is the toughest. The two exceptions that I raised which would prevent incestuous marriage to proceed don't apply here. First, a large number of people belong (or claim to belong) to religious sects that authorize and even require plural marriage. There is a discrimination argument to be had, then. Moreover, there is nothing inherently wrong with people in your standard plural marriage having children. I am inclined to believe that the courts will find that, since there are government financial benefits associated with being married, the government has a compelling interest in limiting the size of marriages so as to prevent the cost of those benefits from getting out of hand. However, I am also inclined to believe that laws making plural marriage criminal (rather than just unrecognized by the state) are likely to be struck down in the not too distant future.
Will my church be forced to conduct same-sex marriages?
No, no it will not. How do I know? It's been fifty years since the Supreme Court said interracial marriages were required to be allowed, and there are still churches that refuse to marry interracial couples without consequence. The arguments that pastors are going to be rounded up and churches forced to allow marriages to happen inside, are largely ignorant fear-mongering. This is due to the combination of the free exercise and establishment clauses of the first amendment to the constitution largely forbidding the government from interfering in the internal religious conduct of churches.
Now, note that I'm just talking about churches here. "Public accommodations" are businesses that offer goods or services in exchange for payment to the general public. These do not include churches. These frequently do include, however, wedding photographers, wedding bakers, wedding florists, etc. Many states have laws banning public accommodations from discrimination on the basis of sexual orientation (along with race, religion, etc.). In those states, a florist cannot refuse to serve a same-sex wedding any more than she can refuse to serve an interracial wedding or a Jewish wedding. Public accommodation laws are well-known, and if one's religion will prevent them from following those laws, that person should not be entering the business.
I got married to my same-sex partner in Vermont in 2012 - how does this ruling affect me?
So, your marriage was recognized by the federal government in 2013 due to the Windsor case, so this ruling doesn't affect you particularly. However, if you moved to Virginia prior to October, 2014, when Virginia began recognizing same-sex marriages, it means you may very well have some property issues here. For example, if you purchased a home, you couldn't do it as "tenants by the entirety" - a favorable status of ownership that's allowed only to married couples. It may be worth re-titling your home so you can take advantage of this status.
In short, my recommendation to all people who were legally married to a same-sex partner prior to October of 2014 but lived in Virginia is to consult an attorney regarding both all property you own and your estate planning documents, to make sure nothing needs to be updated.
I married my same-sex partner in a church in Virginia in 2012 - does this ruling mean my marriage must now be recognized by the state?
NO! If you married in a religious or civil service a same-sex spouse in a state that did not allow such marriages prior to that state allowing them, neither this ruling nor any other court case allowing same-sex marriages retroactively legalized your marriage. This is because most states have requirements beyond merely getting married in a church to become legally married, and Obergefell did not relieve you of meeting that requirement.
In Virginia, for example, to get married, you must a) get a marriage license, b) get married within 60 days after that license is issued, and c) return the license to the court where you got it within 5 days of getting married. Before Obergefell (and in Virginia, before Bostic v. Rainey), you couldn't get a marriage license, meaning that your marriage did not comply with requirement a or c. As a result, you must now go get legally married in order to have your marriage recognized.
Conclusion
While Obergefell finally brought some clarity to issues of same-sex marriage, we still must deal with the realities of more than a decade of such marriages being allowed in some states and not others, as well as in some churches and not others. This will likely create issues for a few decades to come. If you have any question regarding the effect of this ruling on your own situation, 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, June 19, 2015
Understading the Law of "Hate Crimes"
As always, prior to 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.
I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law. This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston. The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow. That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.
You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes. All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?" "Isn't this just criminalizing thought?" "What about free speech?" This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers. Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.
So, what are hate crimes? How do they work? Most importantly, why don't they violate the constitution?
The first thing to understand about hate crime laws is that they do not criminalize anything new. There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal. This is a critical step that many people who are fearful of hate crimes miss. So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry. So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime. If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement). There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.
So, with that being the case, what do hate crimes do? Well, they do two things. First, federal hate crimes federalize the conduct. This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do. Second, both federal and state hate crimes increase the severity of the penalty applied for the crime. While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.
So, why the sentencing aspect? Why should we punish people extra just because they were motivated by hate? Well, this gets to the broader question of what the purpose of jail time is to begin with. Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender. I would argue that hate crimes fit logically into the latter two purposes. Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not. Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.
So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders. They do not seek to, nor do they in fact, regulate thought or speech. Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.
With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.
I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law. This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston. The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow. That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.
You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes. All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?" "Isn't this just criminalizing thought?" "What about free speech?" This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers. Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.
So, what are hate crimes? How do they work? Most importantly, why don't they violate the constitution?
The first thing to understand about hate crime laws is that they do not criminalize anything new. There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal. This is a critical step that many people who are fearful of hate crimes miss. So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry. So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime. If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement). There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.
So, with that being the case, what do hate crimes do? Well, they do two things. First, federal hate crimes federalize the conduct. This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do. Second, both federal and state hate crimes increase the severity of the penalty applied for the crime. While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.
So, why the sentencing aspect? Why should we punish people extra just because they were motivated by hate? Well, this gets to the broader question of what the purpose of jail time is to begin with. Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender. I would argue that hate crimes fit logically into the latter two purposes. Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not. Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.
So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders. They do not seek to, nor do they in fact, regulate thought or speech. Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.
With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.
Friday, June 5, 2015
Fighting Virginia Debt Collectors in Court
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
Stuff happens - that's one of the realities of life. Sometimes this means we don't pay bills we intended to, we fall behind on credit card payments, or we even forget about some bills altogether. On top of it all, sometimes we pay our bills, and the person we paid loses our payment, loses track of it, or mis-enters it into their billing system. Regardless of how you get there, however, few things can be scarier than receiving a summons to court because a debt collector has sued you. In today's blog post, however, I'll discuss some basic "tricks of the trade" on how to fight back against a debt collector's lawsuit, even if you technically owe the money.
Before I begin, if you're new to this blog, it may help to familiarize yourself with the procedures for civil cases in the General District Court. I will be discussing General District Court here since that is where nearly all lawsuits from debt collectors are filed in Virginia.
How to Tell if You're Being Sued by a Debt Collector
The first thing to do is to figure out if it's actually a debt collector who's suing you. The best way to do this is to look at the name of the plaintiff on the Warrant in Debt you've been served with. If you've never heard of the plaintiff, and especially if the plaintiff is listed as "assignee of" or "subrogee of" or something similar, followed by a name you have heard of, then you're being sued by a debt collector. If, however, the name of the plaintiff is familiar, and it's who you owe (or owed) the debt at issue to, then you are not.
While some original creditors, especially very large ones, behave similarly, most do not, so this blog post is really geared towards people being sued by debt collectors, not original creditors.
Motivations at Issue
So, the next thing to do is try to understand the motivation of the parties involved. For the original creditor, they likely made some cursory efforts to collect payment from you, and when that didn't work, gave up. They decided, probably reasonably, that they're not likely to be able to collect your debt - at least not without expending substantial effort - so they sold it to a debt collector, likely for pennies on the dollar (I've heard of debts being sold for somewhere between 5 and 35% of face value, depending on a number of factors) so as to get something.
For the debt collector, they make their money by buying up as much "bad debt" as they can, and then hoping to collect enough of it to make back their money and then some. As you can guess, though, if a debt collector only pays 15% of face value, it probably only expects to actually successfully collect somewhere around 25 to 35% of the debt it buys. This means a debt collector of this sort is generally motivated to collect as much as they can while exerting as little effort and cost as possible.
Handling the Lawsuit
Some debt collectors will simply file a lawsuit against everyone whose debt they've bought. Their hope is that a) some people will get scared into paying by the lawsuit, b) some people will get scared into paying by the judgment that's entered showing up on their credit, c) some people will actually own property and will end up paying when they sell that property due to the lien the judgment created, and d) the collector will stumble upon a person's employer or banking information and be able to do a garnishment with its judgment.
Remember, however, that a debt collector is still assuming that it will never see a dime from the majority of the people it sues. This means a collector is likely unwilling to expend substantial legal fees, or a great deal of time. If they have a judgment, they usually won't do debtor interrogatories (for more on post-judgment collections, you can read my post on the topic), and for the main lawsuit, they are hoping that you, like the vast majority of people they sue, don't show up to the return day, so they can just take a default judgment.
How to Fight Back
That last part is key - the debt collector is relying on most of its judgments being default judgments. So, your first step to fighting back is to show up at the return day. When the judge calls your case, you can usually legitimately and truthfully deny liability, because at that point you don't have sufficient knowledge to prove that the collector suing you actually owns the debt. When you challenge liability, a trial date will be set. Many debt collectors will voluntarily dismiss their lawsuit right then and there.
If, however, your plaintiff does not dismiss the lawsuit, a trial date will be set. Pleadings will likely be required, which is where they will document how they own the money. You can still, however, challenge liability in your answer and grounds of defense by simply noting that you're without sufficient knowledge of the transaction to be certain of its accuracy. Consulting an attorney will help you prepare an answer that is both truthful (actually truthful, not just technically truthful but deceptive) and effective.
Come trial, many debt collectors will give up and dismiss their case. A small number, however, might go forward. Their plan, again since they intend to expend minimal effort, is to call a witness from their own company to validate their purchase of the debt, but not to expend the effort needed to call a witness from the original creditor to validate the debt itself. They might try to have their own witness validate the debt itself, but even a defendant with very basic legal knowledge will be able to object to that validation as hearsay. Instead, they will call you to the witness stand to validate the debt itself. If, however, you have an attorney, and you have not been subpoenaed (and they almost never think to subpoena the defendant) you do not have to be at trial. If you are not there, they probably cannot validate the debt, and if they cannot validate the debt itself, they cannot win.
Important Caveats
Note, however, that while a minority, there are debt collectors who are legitimately trying to collect every single debt they own. They will go through the effort of having a trial and having their necessary witnesses there, then engaging in post-judgment collections actions. In short, what I've listed here works, in my experience, with most debt collectors, but not all. Additionally, if there's a problem with the debt (like you actually paid it, but never got credited), then you should appear at trial to present that evidence. Further, no plan is perfect, and you should definitely have an attorney if you are challenging a debt collection lawsuit in the manner described above. Finally, you must be truthful throughout the proceeding. Doing otherwise could get you in some very hot water.
Conclusion
Being sued by a debt collector is scary, but there are ways to fight back, even if you owe the money. Only an attorney can tell you what strategy is best for your case, however. If you've been sued by a debt collector, 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
Stuff happens - that's one of the realities of life. Sometimes this means we don't pay bills we intended to, we fall behind on credit card payments, or we even forget about some bills altogether. On top of it all, sometimes we pay our bills, and the person we paid loses our payment, loses track of it, or mis-enters it into their billing system. Regardless of how you get there, however, few things can be scarier than receiving a summons to court because a debt collector has sued you. In today's blog post, however, I'll discuss some basic "tricks of the trade" on how to fight back against a debt collector's lawsuit, even if you technically owe the money.
Before I begin, if you're new to this blog, it may help to familiarize yourself with the procedures for civil cases in the General District Court. I will be discussing General District Court here since that is where nearly all lawsuits from debt collectors are filed in Virginia.
How to Tell if You're Being Sued by a Debt Collector
The first thing to do is to figure out if it's actually a debt collector who's suing you. The best way to do this is to look at the name of the plaintiff on the Warrant in Debt you've been served with. If you've never heard of the plaintiff, and especially if the plaintiff is listed as "assignee of" or "subrogee of" or something similar, followed by a name you have heard of, then you're being sued by a debt collector. If, however, the name of the plaintiff is familiar, and it's who you owe (or owed) the debt at issue to, then you are not.
While some original creditors, especially very large ones, behave similarly, most do not, so this blog post is really geared towards people being sued by debt collectors, not original creditors.
Motivations at Issue
So, the next thing to do is try to understand the motivation of the parties involved. For the original creditor, they likely made some cursory efforts to collect payment from you, and when that didn't work, gave up. They decided, probably reasonably, that they're not likely to be able to collect your debt - at least not without expending substantial effort - so they sold it to a debt collector, likely for pennies on the dollar (I've heard of debts being sold for somewhere between 5 and 35% of face value, depending on a number of factors) so as to get something.
For the debt collector, they make their money by buying up as much "bad debt" as they can, and then hoping to collect enough of it to make back their money and then some. As you can guess, though, if a debt collector only pays 15% of face value, it probably only expects to actually successfully collect somewhere around 25 to 35% of the debt it buys. This means a debt collector of this sort is generally motivated to collect as much as they can while exerting as little effort and cost as possible.
Handling the Lawsuit
Some debt collectors will simply file a lawsuit against everyone whose debt they've bought. Their hope is that a) some people will get scared into paying by the lawsuit, b) some people will get scared into paying by the judgment that's entered showing up on their credit, c) some people will actually own property and will end up paying when they sell that property due to the lien the judgment created, and d) the collector will stumble upon a person's employer or banking information and be able to do a garnishment with its judgment.
Remember, however, that a debt collector is still assuming that it will never see a dime from the majority of the people it sues. This means a collector is likely unwilling to expend substantial legal fees, or a great deal of time. If they have a judgment, they usually won't do debtor interrogatories (for more on post-judgment collections, you can read my post on the topic), and for the main lawsuit, they are hoping that you, like the vast majority of people they sue, don't show up to the return day, so they can just take a default judgment.
How to Fight Back
That last part is key - the debt collector is relying on most of its judgments being default judgments. So, your first step to fighting back is to show up at the return day. When the judge calls your case, you can usually legitimately and truthfully deny liability, because at that point you don't have sufficient knowledge to prove that the collector suing you actually owns the debt. When you challenge liability, a trial date will be set. Many debt collectors will voluntarily dismiss their lawsuit right then and there.
If, however, your plaintiff does not dismiss the lawsuit, a trial date will be set. Pleadings will likely be required, which is where they will document how they own the money. You can still, however, challenge liability in your answer and grounds of defense by simply noting that you're without sufficient knowledge of the transaction to be certain of its accuracy. Consulting an attorney will help you prepare an answer that is both truthful (actually truthful, not just technically truthful but deceptive) and effective.
Come trial, many debt collectors will give up and dismiss their case. A small number, however, might go forward. Their plan, again since they intend to expend minimal effort, is to call a witness from their own company to validate their purchase of the debt, but not to expend the effort needed to call a witness from the original creditor to validate the debt itself. They might try to have their own witness validate the debt itself, but even a defendant with very basic legal knowledge will be able to object to that validation as hearsay. Instead, they will call you to the witness stand to validate the debt itself. If, however, you have an attorney, and you have not been subpoenaed (and they almost never think to subpoena the defendant) you do not have to be at trial. If you are not there, they probably cannot validate the debt, and if they cannot validate the debt itself, they cannot win.
Important Caveats
Note, however, that while a minority, there are debt collectors who are legitimately trying to collect every single debt they own. They will go through the effort of having a trial and having their necessary witnesses there, then engaging in post-judgment collections actions. In short, what I've listed here works, in my experience, with most debt collectors, but not all. Additionally, if there's a problem with the debt (like you actually paid it, but never got credited), then you should appear at trial to present that evidence. Further, no plan is perfect, and you should definitely have an attorney if you are challenging a debt collection lawsuit in the manner described above. Finally, you must be truthful throughout the proceeding. Doing otherwise could get you in some very hot water.
Conclusion
Being sued by a debt collector is scary, but there are ways to fight back, even if you owe the money. Only an attorney can tell you what strategy is best for your case, however. If you've been sued by a debt collector, 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
Virginia Post-Eviction Issues - Now What?
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!
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!
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!
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