As always, before reading this post, please review my disclaimer by clicking on the link above or clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia. Please also be aware that any opinions expressed in this blog post are solely that of the author.
Introduction
Since announcing in October that my regular blog posts would be coming to an end, I've occasionally been inspired to write posts, but just haven't gotten myself together enough to actually do one. Today, however, I was hit by inspiration to write on a topic of sufficient importance in family law that I actually have forced myself to sit down and post.
Adultery is a touchy subject in family law, but it is routinely present. In my own experience, it's responsible, in part or in whole, for probably about a third of divorces. Its impact on a divorce case is also substantial. An adulterer generally cannot receive spousal support, can get hit in the equitable distribution of property, and a divorce can be granted on adultery grounds right away instead of having to wait for a year of separation. However, adultery is very hard to prove in Virginia because a) the burden of proof is "clear and convincing evidence" (instead of just "more likely than not"), and b) the adulterer can plead the Fifth Amendment to refuse to answer questions about it. We have a chance right now, however, to make it easier to prove by taking away the Fifth Amendment as an adultery defense, and that is a topic I wanted to write about today.
How the Fifth Works for Adultery
The Fifth Amendment's famous protection against self-incrimination is one of the most powerful tools the Bill of Rights gives us against government. It plays a key role in preventing coercion, torture, and other means by which the state used to force confessions out of people. The way it works in a civil context is that in any civil case (such as divorce), if answering a question could result in you incriminating yourself, you simply refuse to answer on the grounds of the Fifth Amendment.
In Virginia, for adultery, this is crucial for two reasons. First, adultery is actually illegal in Virginia. Virginia Code Section 18.2-365 makes adultery a Class 4 misdemeanor. For reference, a class 4 misdemeanor means that the maximum punishment for conviction is a fine of up to $250. While it has been eight years since Virginia's last prosecution for adultery, and there have only been three prosecutions in the entire 21st century to date, this crime remains on the books, and as a result the Fifth Amendment is available as an option for those accused of adultery.
Now, in most states, this actually wouldn't be a huge problem. This is because unlike in criminal cases, in civil cases, while you still cannot be prosecuted for pleading the Fifth, the fact that you pled the Fifth can be used as an implied confessions and subsequently be used against you within the civil case itself. Virginia, however, prides itself (I think rightfully so) on the degree to which it supports constitutional governance. As a result, Code Section 8.01-223.1 forbids Virginia trial courts from using a person's invocation of a constitutional right (including the Fifth Amendment) against them even in a civil case.
What this means in a family law context is that adultery, while the lowest level of misdemeanor we have, and while rarely enforced, is still technically a crime, and subsequently the Fifth Amendment can be used as a shield and a sword by an adulterer in a divorce case to get that person rights and protections he or she should not have.
The Proposal to Change This
Now, looking at all of this, I would hope you agree that we should not weaken the impact of the Fifth Amendment in Virginia. So, while it's fairly unique amongst the states, I fully support keeping Code Section 8.01-223.1 in place. The obvious "solution," then, would seem to be, at least in this day and age, taking the crime of adultery off the books. This solution isn't as simple as it seems, though.
Take, for example, employment law. Virginia is an "at will" employment state - meaning that unless you have a contract specifically stating otherwise, you can be fired at any time for any reason (you can also quit at any time for any reason). As a result, it is very hard to sue for wrongful termination in Virginia. However, there are exceptions - and one of the biggest exceptions is that your termination "violated public policy." In general, however, to violate public policy, the termination has to involve a violation or potential violation of the laws of the Commonwealth.
The adultery statute, then, has been one of the strongest swords in bringing wrongful termination suits by employees fired after refusing sexual advances from a superior. If either the employee or the superior was married, then any sexual relationship would have been adultery, and subsequently the public policy exception is triggered. There's been extensive argument that removing adultery from the books would make these cases harder. Similarly, in some sexual assault cases, the availability of an adultery charge has helped ensure a case is not prematurely dismissed while additional evidence is collected. In short, taking adultery off the books would have some potentially damaging unforeseen consequences.
Instead, State Senator Scott Surovell has proposed SB 1124, which would change adultery from a criminal to a civil offense, with the maximum penalty being $250 which would be paid to the state literary fund.
A civil offense, unlike a criminal offense, does not go on your criminal record, does not have to be proven beyond a reasonable doubt, can be subject to bankruptcy proceedings, and failing to pay often is not contempt of court (unlike criminal fines). Of relevance to us, however, is that civil offenses are not afforded the protection of the Fifth Amendment.
Potential Impact of Change
The potential impact of SB 1124, then, is huge. While still protecting employees and preventing the other "bad effects" of taking adultery off the books completely, changing it to a civil offense would mean that adulterers in a family law case would have to choose between confessing and committing perjury (a felony). This will also make it easier to potentially question the paramours of an adulterous spouse. As a result, SB 1124 would, in my opinion, keep all the benefits of having adultery on the book as a crime, while getting rid of the drawbacks.
How You Can Help
So, this might seem like a no-brainer. But, unfortunately, it isn't. This is not the first time Senator Surovell has proposed this bill. Last year, our socially conservative General Assembly refused to pass the bill even out of committee because they feared the message it would send by saying we don't take adultery seriously in Virginia. As ridiculous as this may seem, the fact is most members of the General Assembly are not lawyers, and have no idea how badly the current law actually hurts the victims of adultery.
That's where you come in. Please consider contacting your State Senator and Delegate (especially if they are a Republican, but even if they aren't) and talk to them about this bill. Tell them how important it is to you to see the adultery loophole closed so that victims of adultery can get the justice that the law entitles them to.
Monday, January 16, 2017
Friday, October 21, 2016
Update on Blog Status
I sit here today having made my last post four weeks ago and only made a total of one post in the past eight weeks. Many things have come together to lead to this general decline in posting, but perhaps the biggest issues have been that as I spend more time in the practice of law, I get more clients, and have less time to dedicate to a blog. Combined with my growing family and a number of other time consuming issues that have arisen, it is becoming increasingly clear to me that my days of routinely posting blog updates are at an end.
When I started this blog in 2013, I had no idea of the readership I would gain or how rewarding this experience would be. As time wore on, however, my frequency of posting dropped, such that in May of last year I had to step back to posting every other week (see my update from then here). While I do feel like I have plenty more to say, I just don't have the time or energy to put together the quality of posts I can be satisfied with. In fact, I believe the quality of my posts has declined over the past year already, as I have already covered many of the broader issues I encounter day to day, and have instead gotten more and more specific with my blog posts. Specifics can be good, but they don't appeal to the wider audience I'm generally speaking to. I think there's a reason that to this day my most widely read posts are from 2014 and 2015 - in 2013 I was still getting this thing off the ground and learning what I was doing, and this year I struggled for much of the year finding topics I hadn't already covered with broad applications.
What this doesn't mean, however, is that I'm going anywhere. I'll still be happy to respond to inquiries and comments on this blog and I'll still be happy to schedule consults with blog readers. Moreover, any time the writing bug strikes me, I will do more posts - just not on any regular schedule. At a minimum, when new laws are passed that affect the accuracy of prior posts on this blog, I do hope to continue doing my annual "changes in the law" posts.
In the meantime, however, please enjoy what I've already posted. Doing this blog has been wonderfully rewarding, and I hope you, the readers, have gotten something out of it as well.
When I started this blog in 2013, I had no idea of the readership I would gain or how rewarding this experience would be. As time wore on, however, my frequency of posting dropped, such that in May of last year I had to step back to posting every other week (see my update from then here). While I do feel like I have plenty more to say, I just don't have the time or energy to put together the quality of posts I can be satisfied with. In fact, I believe the quality of my posts has declined over the past year already, as I have already covered many of the broader issues I encounter day to day, and have instead gotten more and more specific with my blog posts. Specifics can be good, but they don't appeal to the wider audience I'm generally speaking to. I think there's a reason that to this day my most widely read posts are from 2014 and 2015 - in 2013 I was still getting this thing off the ground and learning what I was doing, and this year I struggled for much of the year finding topics I hadn't already covered with broad applications.
What this doesn't mean, however, is that I'm going anywhere. I'll still be happy to respond to inquiries and comments on this blog and I'll still be happy to schedule consults with blog readers. Moreover, any time the writing bug strikes me, I will do more posts - just not on any regular schedule. At a minimum, when new laws are passed that affect the accuracy of prior posts on this blog, I do hope to continue doing my annual "changes in the law" posts.
In the meantime, however, please enjoy what I've already posted. Doing this blog has been wonderfully rewarding, and I hope you, the readers, have gotten something out of it as well.
Friday, September 23, 2016
Short Topics - Virginia Law on Lease Non-Renewals, Terminating Child Support, and more
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
Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own. It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post. Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.
Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.
What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?
So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing. Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy. If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?
Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid. However, you could take several approaches. You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case. Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed. The first option is much less expensive for you, but also less likely to be accepted. The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.
However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.
My husband left and I have no idea where he is - how do I get divorced?
Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers. The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person. However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").
In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties. A court cannot impact a person directly without having in personam jurisdiction. However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over. Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).
This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage. This is important because the rules for service of process for in rem jurisdiction are different. In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper). Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.
Now, to be clear, the court can only grant you a divorce. It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).
My kid turned 18 and graduated high school - why am I still paying child support?
In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law. A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed. A non-self executing provision calls for changes after a certain event, but you must get a court order first. The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties? If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.
When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent. In virtually all other situations, child support termination is not self-executing. Let's break down the reason why.
Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0. However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE. Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise. As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered. You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.
The other changes from the above, simple scenario, are a bit more obvious. If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious. Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.
My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?
I get this inquiry a lot and unfortunately, the answer is usually "nothing." The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.
Now, the two big defenses to a lease non-renewal are discrimination and retaliation. Federal law bans housing discrimination on the basis of the "protected classes." In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney. You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.
Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited. This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.
However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.
Conclusion
I do hope to do more of these "short topics" posts in the future. Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs. If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consults are free for up to half an hour!
Introduction
Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own. It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post. Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.
Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.
What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?
So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing. Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy. If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?
Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid. However, you could take several approaches. You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case. Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed. The first option is much less expensive for you, but also less likely to be accepted. The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.
However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.
My husband left and I have no idea where he is - how do I get divorced?
Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers. The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person. However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").
In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties. A court cannot impact a person directly without having in personam jurisdiction. However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over. Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).
This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage. This is important because the rules for service of process for in rem jurisdiction are different. In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper). Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.
Now, to be clear, the court can only grant you a divorce. It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).
My kid turned 18 and graduated high school - why am I still paying child support?
In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law. A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed. A non-self executing provision calls for changes after a certain event, but you must get a court order first. The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties? If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.
When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent. In virtually all other situations, child support termination is not self-executing. Let's break down the reason why.
Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0. However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE. Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise. As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered. You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.
The other changes from the above, simple scenario, are a bit more obvious. If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious. Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.
My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?
I get this inquiry a lot and unfortunately, the answer is usually "nothing." The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.
Now, the two big defenses to a lease non-renewal are discrimination and retaliation. Federal law bans housing discrimination on the basis of the "protected classes." In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney. You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.
Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited. This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.
However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.
Conclusion
I do hope to do more of these "short topics" posts in the future. Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs. If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consults are free for up to half an hour!
Friday, August 26, 2016
Interstate Child Support - Virginia Law
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
In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states. It might not surprise you, then, to learn that similar issues arise frequently involving child support. Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.
In today's post, I will discuss how issues of interstate child support are handled.
UIFSA
Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states. The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states. Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents. Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding. As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.
In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.
Initial Support Order
Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order. Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents. A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction. A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located. If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:
Introduction
In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states. It might not surprise you, then, to learn that similar issues arise frequently involving child support. Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.
In today's post, I will discuss how issues of interstate child support are handled.
UIFSA
Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states. The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states. Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents. Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding. As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.
In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.
Initial Support Order
Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order. Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents. A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction. A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located. If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:
- The non-petitioning parent is personally served with process in the state where the petition was filed;
- The non-petitioning parent consents to jurisdiction, either expressly or by implication or waiver;
- The non-petitioning parent has ever resided with the child in the state where the petition was filed;
- The non-petitioning parent has ever resided in the state where the petition was filed and paid for pre-natal expenses or supported the child while living there;
- The non-petitioning parent directly caused the child to become a resident of the state where the petition was filed;
- The parents had sexual intercourse in the state where the petition was filed at a time that it is reasonably likely the child was conceived in that state;
- The non-petitioning parent asserted parentage of the child in the putative father registry of the state where the petition was filed;
- The non-petitioning parent has signed a contract in the state where the petition was filed agreeing to pay support; or
- There is another basis under the laws of the state and the constitution to allow for jurisdiction.
If jurisdiction over the non-petitioning parent is present, then any state can issue the initial support order.
Simultaneous Proceedings
Since, unlike custody and visitation cases, UIFSA does not usually give us a clear-cut "proper" first state for support orders, it is entirely possible for petitions to be filed in multiple states, and have both states be proper forums (assuming there is no already existing support order, which I'll get to in a moment).
In the case that more than one proceeding to establish an initial support order is pending at the same time, then the state that is proper to hear the case goes in the following order of priority:
- If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
- If 1 does not apply, then if either state is the UCCJEA "home state" of the child, that state gets to make the initial order if the non-petitioning parent in the other state challenges that state's jurisdiction within the deadline to do so.
- If 1 does not apply and 2 does not apply (either because neither state is the child's "home state" or because the non-petitioning parent did not challenge jurisdiction in time), then the state where a petition was filed first gets to make the initial order.
I actually did encounter a case once where both states had jurisdiction over both parents, the non-petitioning parent in the state that was not the child's "home state" failed to challenge jurisdiction in time, and the Virginia court ended up dismissing the case (despite Virginia being the child's "home state") because the Virginia petition was filed 23 minutes after the petition was filed in the other state - so this is stuck to pretty tightly.
Continuing, Exclusive Jurisdiction
As with custody and visitation, once that initial order is entered, it generally stays in that state. The state that entered the original order has what's called "continuing, exclusive jurisdiction," meaning only that state can modify the order. A state will continue to have continuing, exclusive jurisdiction for so long as either parent or the child still resides in that state unless all parties consent to the case being moved to another state. Additionally, even if no one remains in the state, it will still have continuing, exclusive jurisdiction if all parties consent to the state continuing to have it.
Conflicting Orders
Now, here's an odd thought. What if two states have jurisdiction to enter an initial order, neither non-petitioning parent ever objects to jurisdiction, and so both states end up issuing orders and having continuing, exclusive jurisdiction? Well, then it's up to the state where the modification or enforcement proceeding is being initiated to determine which order "controls." The rules on this are fairly simple. If only one state would have continuing, exclusive jurisdiction, that state's order controls. If neither state would have continuing, exclusive jurisdiction, then neither order is controlling and the state trying to sort it all out must issue its own support order. If both states have continuing, exclusive jurisdiction, then the order issued by the child's current home state controls, and if neither state is the child's current home state, then the last order entered controls.
Enforcement of Orders
As with custody and visitation, the unanimous adoption of UIFSA means that once a valid support order is entered, as long as it is the controlling order, all states will enforce it. As a practical matter, this means the state where the payor lives, since that's the one that will have the most ability to conduct effective enforcement.
Modification of Orders
A state always has the power to modify its own support orders so long as that order remains the controlling order. Of course, as long as a state has continuing, exclusive jurisdiction, it is also the only state that can modify its controlling order. If, however, the state that issued the controlling order does not have continuing, exclusive jurisdiction anymore, then modification proceedings can be held in the following states:
- The state that issued the controlling order;
- The state both parents reside in if they both reside in the same state (as long as the child does not reside in the state that issued the controlling order, since that state would then still have continuing, exclusive jurisdiction);
- Any state the parent seeking to modify child support does not reside in so long as no parties reside in the state issuing the currently controlling order and the state where the modification petition is filed has jurisdiction over the non-petitioning parent; or
- A state where the child resides or either parent is subject to jurisdiction if both parents have filed a consent in the state that has issued the current controlling order agreeing to the new state having power to modify the order.
Conflict of Laws
One of the biggest issues we face when modifying another state's support orders is that different states have vastly different laws about how child support is calculated. As a result, UIFSA takes into account that different states modifying other states' orders can create some unfairness. As a result, it lays out the following rules to determine which laws to use when modifying the support order of another state:
- If a provision of the original support order cannot be changed under the laws of the state issuing that order, that provision cannot be changed in another state's modification proceedings either.
- The amount of support, the frequency in which it is paid, and the manner in which it is paid is determined by the law of the state issuing the new, modified order unless any of those provisions cannot ever be changed under the laws of the state issuing the original order.
- The duration of support (as in, how long it lasts) is determined by the law of the state issuing the original order.
Federal Law
Unlike in custody and visitation, there is no particular federal law you need to know here. The federal government mostly stays out of child support. The only real exceptions are the aforementioned welfare reform laws requiring states to adopt UIFSA and a federal law making it a federal crime to willfully fail to pay your child support obligations if you owe that support obligation across state lines. Neither of these laws directly affect the substance of the laws on establishment and modification of support across state lines.
Conclusion
If you feel like this all sounds even more complicated than the rules for interstate custody and visitation disputes, you're right, it is. This is why is it critical to have an attorney who knows and understands these laws if you are involved in an interstate support dispute. If you are involved in an interstate support dispute and would like legal assistance, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation (though please do read my initial consultation policy first). Our initial consultations are free for up to half an hour!
Friday, August 12, 2016
Interstate Custody Disputes in Virginia - Where does this case belong?
As always, before reading my 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
Imagine for a moment that you are involved a nasty custody dispute with your ex. You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state. You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there. You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order. What then?
For a long time, this was not an uncommon occurrence. No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways. Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.
Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law. What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key. In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.
Applicable Laws
The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA). This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions. It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.
The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA). This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law). The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.
Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA. As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.
Basic Rule for an Initial Order
So, let's start at the top. Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states. In what state is the custody or visitation case to be held? Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this. Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).
While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined. A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth). So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed. If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.
This rule is expressly designed to prevent forum shopping. If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.
Now, of course, there are loads of exceptions to the home state rule which you can already imagine. For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months. Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.
In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).
If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.
Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).
Enforcement of the Order
Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified. This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others. As a result, under federal law, all properly entered custody orders must be enforced by every other state.
Modification of the Order
Now, as you should know, custody and visitation is modifiable over time. So, once you have an initial order entered, what state can modify it? Well, this depends on a couple of issues.
The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case. A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits. In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.
If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction." In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order. Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.
Some Examples
So, all of the above is a bit of a mess. Let me break it down for you a bit better with an example.
Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George. All three live happily together in Alabama for four years. Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia. Both Bob and Suzy want custody of George and two months later a custody case is filed.
This case is most likely to be properly heard in Virginia. This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply. Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.
So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia. Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time. Where does that modification need to filed? Probably still in Virginia!
Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order. Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order. As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.
Now, let's say Virginia enters a modified order and Suzy gets more time with George. About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him. Where does he file for that modification? Now we're in West Virginia.
At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.
Finally, the West Virginia court allows Bob and George to move to Texas. Three years later, Suzy decides she should have custody of George and moves to modify custody. Where does she file that motion? Still in West Virginia.
This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.
Conclusion
Confused? Don't be sad - the mishmash of interstate rules is a mess that confuses many people. By and large, they're a good mess. They fix the horrible state of things that existed before they were adopted. Nonetheless, it makes proceeding in these cases without an attorney virtually impossible. If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney. If you're interested in the services of my office, you can 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 thirty minutes!
Introduction
Imagine for a moment that you are involved a nasty custody dispute with your ex. You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state. You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there. You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order. What then?
For a long time, this was not an uncommon occurrence. No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways. Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.
Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law. What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key. In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.
Applicable Laws
The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA). This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions. It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.
The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA). This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law). The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.
Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA. As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.
Basic Rule for an Initial Order
So, let's start at the top. Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states. In what state is the custody or visitation case to be held? Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this. Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).
While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined. A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth). So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed. If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.
This rule is expressly designed to prevent forum shopping. If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.
Now, of course, there are loads of exceptions to the home state rule which you can already imagine. For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months. Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.
In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).
If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.
Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).
Enforcement of the Order
Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified. This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others. As a result, under federal law, all properly entered custody orders must be enforced by every other state.
Modification of the Order
Now, as you should know, custody and visitation is modifiable over time. So, once you have an initial order entered, what state can modify it? Well, this depends on a couple of issues.
The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case. A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits. In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.
If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction." In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order. Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.
Some Examples
So, all of the above is a bit of a mess. Let me break it down for you a bit better with an example.
Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George. All three live happily together in Alabama for four years. Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia. Both Bob and Suzy want custody of George and two months later a custody case is filed.
This case is most likely to be properly heard in Virginia. This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply. Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.
So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia. Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time. Where does that modification need to filed? Probably still in Virginia!
Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order. Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order. As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.
Now, let's say Virginia enters a modified order and Suzy gets more time with George. About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him. Where does he file for that modification? Now we're in West Virginia.
At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.
Finally, the West Virginia court allows Bob and George to move to Texas. Three years later, Suzy decides she should have custody of George and moves to modify custody. Where does she file that motion? Still in West Virginia.
This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.
Conclusion
Confused? Don't be sad - the mishmash of interstate rules is a mess that confuses many people. By and large, they're a good mess. They fix the horrible state of things that existed before they were adopted. Nonetheless, it makes proceeding in these cases without an attorney virtually impossible. If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney. If you're interested in the services of my office, you can 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 thirty minutes!
Friday, July 29, 2016
Virginia Law and the Blog Part V - Odd custody child support, modification jurisdiction, etc.
As always, before reading today's blog 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.
Update (4/27/18): Some of the information contained in this blog post is now outdated due to changes in the law. See my 2018 Relevant Changes in the Law post for details.
Introduction
Between comments and e-mails, I get a lot of questions about blog posts. Logically, as I've posted more over time, I've gotten more questions, and sometimes instead of just answering these questions individually, I've felt that answering them for the benefit of everyone is more helpful. This is why I've developed my "Law and the Blog" series, where I occasionally go back to old blog posts and answer some questions I've gotten about them. This is the fifth post in that series, with the most recent one having been completed in November.
"You've gone into some detail about how child support is determined when custody is shared between the parents, and how to tell whether or not custody is shared. What happens when you have two kids, and custody of one is shared, but of the other is not?"
Alas, the law can only do so many things, and anticipating all the situations in which people might find themselves is not feasible. Where none of the three basic situations of child support (sole custody, shared custody, or split custody) cleanly apply to a case, it's up to the judge how best to go about it.
One of the biggest challenges we face is that our child support guidelines, for a myriad of reasons, are not "per child." There's one guideline amount for one child, and another for two children that is less than double the amount for one child. As a result, calculating the support for each child separately then adding the two numbers together does not work here. In this instance, then, I've seen judges take several approaches.
One popular approach is to calculate support for each situation as though both children were in that situation and then average the two (so, calculate the support as though both children were in a "sole custody" situation, then calculate the support as though both children were in the same "shared custody" situation, then average the two numbers). Additionally, if both children are technically in a shared custody situation but have different numbers of "days" the court will typically calculate shared support for the two children with the number of days averaged between them.
The above is the most popular approach I've encountered, but another has been to calculate sole custody support for the one child, shared custody support for the other, add the two together, then take approximately 76% of the combined number. This is because in the guidelines, support for two children is usually (though not uniformly) about 76% of what you would get if you just doubled the number for support of one child.
To compare, I'll use a super simple case. Father earns $5,000 a month, mother earns $5,000 a month, no health insurance, work-related child care, etc. Father has custody of both kids, but mother has one kid for 80 days a year (so sole custody) and one for 120 days a year (so, shared custody).
Under the first method, the sole custody support owed by the mother for both kids would be $784 per month and the shared support owed by the mother if she had both kids for 120 days a year would be $376 per month. Take the average, and you get the mother owing child support of $580 per month.
Under the second method, the sole custody support owed for the one child would be $527 per month and the shared custody support owed for the second child would be $253 per month. Add those two up and take 76% of the combined number gets you $593 per month.
So, the two methods come to very similar results.
Obviously, the whole thing gets more complicated as more children are added to the mix. As long as you can convince a judge that your proposed method is reasonable, however, the judge will be fairly free to use it.
"You've mentioned before that there is no set formula for calculating and modifying spousal support. Could we add one to an agreement and have that enforced by a court?"
Yes, absolutely. Spousal support is one of those areas where you can do virtually anything you want in a settlement agreement and the court will be required to enforce it. This means you can choose your current support based on a formula if you wish, you can lay out in the agreement when support can be changed, and you can even lay out in the agreement how the new support amount is to be calculated if it is changed. The court will enforce that language as written. You should definitely hire an attorney to get that language ironed out, however, as a court will enforce the order exactly as written, even if it says (implicitly or explicitly) something other than what you meant.
"You've previously mentioned that in a child support modification case, you file for that modification in the same court where the last order was entered. Neither my ex nor I still live where the last order was entered - do I still need to file for a modification there?"
That depends. If the last order was entered in Virginia, and either party still lives in Virginia, then you can file where the last order was entered, or you can seek to have that court transfer the case. To do that, you would file a Motion to Reopen and Transfer in the original court and seek to have the case moved where you wish. If the non-moving party is still in Virginia, then this would likely be to the locality where the non-moving party lives. If the non-moving party does not still live in Virginia, then you can seek to have the case moved to the jurisdiction where you live, but don't be surprised if the original court denies the motion if it finds that that court is more convenient for the other party to get to.
If neither of you still live in Virginia, you can open a case in the non-moving party's state seeking registration and modification of the Virginia order under the Uniform Interstate Family Support Act (UIFSA, a uniform law that has been adopted by all fifty states). Similarly, if your original order was not in Virginia, neither of you still live in that state, and the non-moving party now lives in Virginia, you can file in the J&DR Court of the non-moving party's home jurisdiction a petition under UIFSA to register the out of state order, which then gives the Virginia court the power to both enforce and modify that order. You can either then file for modification, or you can file for modification at the same time that you file for registration (the modification proceedings just cannot actually begin until the order has been registered).
Action under UIFSA does not require any action to be taken in the original court. Of note, I am planning to do blog posts on UIFSA, and its near-equivalent in the custody/visitation context, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in the near future.
"My ex has failed to pay support for years. I filed a Rule to Show Cause and after an extensive hearing, the judge found that my ex owed the money he did, but then blamed me for not forgiving some of the support payments when my ex was unemployed a few years ago - even though he never moved to modify - and refused to hold my ex in contempt or threaten to hold him in contempt. As a result, I'm back to square one with a court order my ex now feels emboldened to violate, but my lawyer is telling me I can't appeal the ruling. Why?"
Contempt of court is an ancient matter that finds its roots in British Common Law. This power represents the court's ability to vindicate itself when someone treats the court with improper disrespect - such as by violating a court's order. Since contempt of court is a court acting on its own behalf (rather than that of a litigate) to protect itself from conduct evident to that court, by common law, contempt of court rulings could not be appealed at all.
Virginia has modified this rule by statute, allowing appeals any time someone is found in contempt. However, the law expressly only applies to an appeal of a finding of contempt itself. The law says nothing about a court's decision not to find someone in contempt. Since a statute must overturn common law principles expressly for those principles to no longer apply, the failure to say anything about a court not finding someone in contempt means that the common law rule that no appeal is allowed is still applicable to those findings - no matter how erroneous the court's reasoning may have been.
Conclusion
As always, keep the questions coming. If you need legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (you may also want to check out my initial consultation policy first). Our initial consultations are free for up to half an hour!
Update (4/27/18): Some of the information contained in this blog post is now outdated due to changes in the law. See my 2018 Relevant Changes in the Law post for details.
Introduction
Between comments and e-mails, I get a lot of questions about blog posts. Logically, as I've posted more over time, I've gotten more questions, and sometimes instead of just answering these questions individually, I've felt that answering them for the benefit of everyone is more helpful. This is why I've developed my "Law and the Blog" series, where I occasionally go back to old blog posts and answer some questions I've gotten about them. This is the fifth post in that series, with the most recent one having been completed in November.
"You've gone into some detail about how child support is determined when custody is shared between the parents, and how to tell whether or not custody is shared. What happens when you have two kids, and custody of one is shared, but of the other is not?"
Alas, the law can only do so many things, and anticipating all the situations in which people might find themselves is not feasible. Where none of the three basic situations of child support (sole custody, shared custody, or split custody) cleanly apply to a case, it's up to the judge how best to go about it.
One of the biggest challenges we face is that our child support guidelines, for a myriad of reasons, are not "per child." There's one guideline amount for one child, and another for two children that is less than double the amount for one child. As a result, calculating the support for each child separately then adding the two numbers together does not work here. In this instance, then, I've seen judges take several approaches.
One popular approach is to calculate support for each situation as though both children were in that situation and then average the two (so, calculate the support as though both children were in a "sole custody" situation, then calculate the support as though both children were in the same "shared custody" situation, then average the two numbers). Additionally, if both children are technically in a shared custody situation but have different numbers of "days" the court will typically calculate shared support for the two children with the number of days averaged between them.
The above is the most popular approach I've encountered, but another has been to calculate sole custody support for the one child, shared custody support for the other, add the two together, then take approximately 76% of the combined number. This is because in the guidelines, support for two children is usually (though not uniformly) about 76% of what you would get if you just doubled the number for support of one child.
To compare, I'll use a super simple case. Father earns $5,000 a month, mother earns $5,000 a month, no health insurance, work-related child care, etc. Father has custody of both kids, but mother has one kid for 80 days a year (so sole custody) and one for 120 days a year (so, shared custody).
Under the first method, the sole custody support owed by the mother for both kids would be $784 per month and the shared support owed by the mother if she had both kids for 120 days a year would be $376 per month. Take the average, and you get the mother owing child support of $580 per month.
Under the second method, the sole custody support owed for the one child would be $527 per month and the shared custody support owed for the second child would be $253 per month. Add those two up and take 76% of the combined number gets you $593 per month.
So, the two methods come to very similar results.
Obviously, the whole thing gets more complicated as more children are added to the mix. As long as you can convince a judge that your proposed method is reasonable, however, the judge will be fairly free to use it.
"You've mentioned before that there is no set formula for calculating and modifying spousal support. Could we add one to an agreement and have that enforced by a court?"
Yes, absolutely. Spousal support is one of those areas where you can do virtually anything you want in a settlement agreement and the court will be required to enforce it. This means you can choose your current support based on a formula if you wish, you can lay out in the agreement when support can be changed, and you can even lay out in the agreement how the new support amount is to be calculated if it is changed. The court will enforce that language as written. You should definitely hire an attorney to get that language ironed out, however, as a court will enforce the order exactly as written, even if it says (implicitly or explicitly) something other than what you meant.
"You've previously mentioned that in a child support modification case, you file for that modification in the same court where the last order was entered. Neither my ex nor I still live where the last order was entered - do I still need to file for a modification there?"
That depends. If the last order was entered in Virginia, and either party still lives in Virginia, then you can file where the last order was entered, or you can seek to have that court transfer the case. To do that, you would file a Motion to Reopen and Transfer in the original court and seek to have the case moved where you wish. If the non-moving party is still in Virginia, then this would likely be to the locality where the non-moving party lives. If the non-moving party does not still live in Virginia, then you can seek to have the case moved to the jurisdiction where you live, but don't be surprised if the original court denies the motion if it finds that that court is more convenient for the other party to get to.
If neither of you still live in Virginia, you can open a case in the non-moving party's state seeking registration and modification of the Virginia order under the Uniform Interstate Family Support Act (UIFSA, a uniform law that has been adopted by all fifty states). Similarly, if your original order was not in Virginia, neither of you still live in that state, and the non-moving party now lives in Virginia, you can file in the J&DR Court of the non-moving party's home jurisdiction a petition under UIFSA to register the out of state order, which then gives the Virginia court the power to both enforce and modify that order. You can either then file for modification, or you can file for modification at the same time that you file for registration (the modification proceedings just cannot actually begin until the order has been registered).
Action under UIFSA does not require any action to be taken in the original court. Of note, I am planning to do blog posts on UIFSA, and its near-equivalent in the custody/visitation context, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in the near future.
"My ex has failed to pay support for years. I filed a Rule to Show Cause and after an extensive hearing, the judge found that my ex owed the money he did, but then blamed me for not forgiving some of the support payments when my ex was unemployed a few years ago - even though he never moved to modify - and refused to hold my ex in contempt or threaten to hold him in contempt. As a result, I'm back to square one with a court order my ex now feels emboldened to violate, but my lawyer is telling me I can't appeal the ruling. Why?"
Contempt of court is an ancient matter that finds its roots in British Common Law. This power represents the court's ability to vindicate itself when someone treats the court with improper disrespect - such as by violating a court's order. Since contempt of court is a court acting on its own behalf (rather than that of a litigate) to protect itself from conduct evident to that court, by common law, contempt of court rulings could not be appealed at all.
Virginia has modified this rule by statute, allowing appeals any time someone is found in contempt. However, the law expressly only applies to an appeal of a finding of contempt itself. The law says nothing about a court's decision not to find someone in contempt. Since a statute must overturn common law principles expressly for those principles to no longer apply, the failure to say anything about a court not finding someone in contempt means that the common law rule that no appeal is allowed is still applicable to those findings - no matter how erroneous the court's reasoning may have been.
Conclusion
As always, keep the questions coming. If you need legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (you may also want to check out my initial consultation policy first). Our initial consultations are free for up to half an hour!
Friday, July 15, 2016
Pets and Divorce in Virginia: Who Gets the Dog?
As always, before reading today's blog post, please check out 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
What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.
Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.
The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.
First and Foremost: Pets are Property
No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.
Marital Property vs. Separate Property
Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.
If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).
One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).
Division by Agreement
Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.
As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.
Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.
Division by Court
If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."
For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.
It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.
However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.
The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.
All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.
A Brief Note About Protective Orders
Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.
In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.
Conclusion
While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (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
What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.
Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.
The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.
First and Foremost: Pets are Property
No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.
Marital Property vs. Separate Property
Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.
If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).
One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).
Division by Agreement
Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.
As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.
Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.
Division by Court
If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."
For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.
It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.
However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.
The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.
All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.
A Brief Note About Protective Orders
Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.
In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.
Conclusion
While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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