The Nahigians were looking for a good investment opportunity and for a great place to raise a family. Creighton Farms, which held itself out as a "Ritz-Carlton Managed Community" promised to have all the amenities. From golf to a "Ritz kids" day care center, from horse-back riding to a state-of-the art clubhouse, Creighton Farms was to have it all. The Nahigians were promised that Ritz-Carlton was partnered with the developer, Juno-Loudoun, LLC for thirty years. However, in the spring of 2009, Ritz-Carlton picked up and left.
The Nahigians demanded an explanation as to why Ritz-Carlton would leave well short of its thirty year commitment to Creighton Farms. It was only then that they learned that no such commitment existed.
]]> The Nahigians initiated a lawsuit against Juno-Loudoun and Ritz-Carlton for fraud and violations of the Interstate Land Sales Act (ILSA). The Nahigians' position was that Juno-Loudoun and Ritz-Carlton had misrepresented their relationship and had failed to comply with ILSA by excluding from the land purchase contract a notice they could revoke the contract within two years and a "property report" that would have included material information such as what agreements existed between the parties and the financial investment of the parties.The Honorable James C. Cacheris heard the matter in the United States District Court for the Eastern District of Virginia. In the fall of 2010 Judge Cacheris granted summary judgment in favor of the Nahigians on their ILSA claims. Judge Cacheris held they were entitled to an equitable rescission for the failure to include material information in the property report. The Nahigians' 2007 land purchase contract for $1.674 million was ordered rescinded and the monies returned to the Nahigians. The Nahigians were also awarded interest, costs and attorney's fees.
Juno-Loudoun appealed the decision to the United States Fourth Circuit Court of Appeals. The Nahigians cross-appealed since Judge Cacheris only awarded them pre-judgment interest on the down payment they made for the property, not the amount financed through a BB&T loan. Oral argument was in December of 2011 and the Fourth Circuit entered its opinion on May 1, 2012.
The Fourth Circuit ruled in favor of the Nahigians on all matters. Juno-Loudoun claimed there was a two-year statute of limitations in order for the Nahigians to receive equitable rescission. However, the Fourth Circuit held that 15 U.S.C. § 1711(a)(1) provides a three year statute of limitations. This was a matter of first impression for the Fourth Circuit and they joined the Eleventh Circuit in deciding the three year statute of limitations in § 1711 applies to relief sought under § 1709(a).
Juno-Loudoun also argued they were subject to the "100 lot exemption" and the "sales to builders exemption" as outlined in 15 U.S.C. § 1702. However, the Fourth Circuit ruled those exemptions did not apply because Juno was counting on future sales of lots and the statute of limitations under ILSA begins to run when the contract is signed. The Fourth Circuit relied on the clear language of the statute and thus rejected advisory guidelines from HUD on this issue. The Fourth Circuit joined the Second and Fifth Circuits with this position. See e.g., Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 757 (5th Cir. 2011) and Bodansky v. Fifth on Park Condo, LLC, 635 F.3d 75, 83 (2d Cir. 2011). The Fourth Circuit also held the violations of ILSA were material and that the Nahigians were entitled to rescission because what they could receive would restore them to where they were prior to entering into the land sales purchase contract.
This was a big victory for the Nahigians. The Fourth Circuit opinion was a homerun. Chap Petersen was the lead partner in this litigation and Jason Zellman was the associate who worked on this case for over three years.
]]>There are 21 New York groups that are urging a prominent New York environmental group to take action in the enforcement of a law that has been on the records for 40 years. The law requires disclosure of the harmful chemicals that are found in cleaning products, but enforcement is weak.
]]> The groups are hoping the state will couple with a multistate database, Interstate Chemicals Clearing House, to disclose the toxic chemicals in a variety of cleaning products. The groups argue that the cleaning products are dangerous to their users and to small children who play on floors where products are used.What are Common Means of Exposure?
One common way for toxic chemical exposure to occur is by mixing chemicals. When chlorine bleach is mixed with ammonia or acids the results can be devastating. Several household cleaning products contain bleach, which their labels should reflect.
Ammonia is commonly found in glass cleaners, paints and animal urine. Acids are commonly found in window cleaners, dishwasher detergents, vinegar, drain and toilet bowl cleaners, brick and concrete cleaners, and rust removal products. Be careful not to mix these products with bleach.
What Symptoms can Result from Exposure
Symptoms resulting from exposure to toxic chemicals include:
· Nausea
· Coughing, wheezing, chest pain and shortness of breath
· Throat, eye and nose irritation
· Fluid in the lungs
· Pneumonia
· Skin pain, inflammation or sores
While spring cleaning, people should take care not to mix products and look out for symptoms of toxic chemical exposure. Remember that even when children are not cleaning, they are at risk for exposure as well.
Dangerous products can be extremely hazardous to children or other users, particularly when the manufacturer has overlooked safety standards.
Source: "Common Cleaning Products May Be Dangerous When Mixed,"
]]>The bill, SB597, would require all Internet retailers with a physical presence in Virginia that relates to the products they sell, would need to collect sales tax purchases made in the state. This bill is one of the many recent laws affecting Virginia businesses and consumers.
Substantial Nexus
Because each of the 50 states is a sovereign entity, they cannot require an out-of-state retailer to collect a tax on a sale made out of state, absent a substantial nexus.
If a Virginia resident drives across the state line and buys an item in Maryland, Virginia cannot require the Maryland business to collect tax on the sale, as it has no nexus with the Maryland business.
Similarly, the Commonwealth of Virginia cannot require an out-of-state retailer to collect sales tax on products sold to Virginia residents, absent some nexus with the Commonwealth.
]]> Sufficient ActivityThis new law defines what qualifies as sufficient activity in Virginia to create the "nexus" required to bring an online retailer within reach of Virginia tax law. Some of the factors used to determine "sufficient activity" include, having an office or place of business in Virginia, advertising on billboards, has franchisees or licensees in the Commonwealth.
Amazon is located in Washington and has its principle place of business there, placing it beyond the reach of Virginia law. It does have a warehouse in Virginia, which under the new law, will qualify as sufficient activity.
The Department of Taxation estimates the law could generate as much as $24 million dollars per year for the Commonwealth, though supporters believe it will be greater than that figure.
The law was signed by the Governor on April 4, 2012 and will become effective on September 1, 2013, unless unified federal legislation controlling online retail tax is passed.
Source: "New Virginia laws will alter business landscape," Carolyn Shapiro, PilotOnline.com, 3/26/12
]]>Generally, a modification of child support occurs by the agreement of the parties or through a court proceeding. If the new child support amount is obtained through a court proceeding, the resulting order will be a valid and enforceable modification. However, it may surprise you to learn that an agreement between parties to revise child support will not be considered a valid and enforcement modification and will not alter the terms of the original order of support. A party who relies on the validity and enforceability of a written agreement may be exposed to substantial financial ramifications. The current law in Virginia requires that modifications of child support be court-approved before it is a valid and enforceable child support modification (with one exception addressed more fully below). And, because child support payments vest as they become due, a court will not have authority to modify child support retroactively unless a motion to modify child support is pending.
]]> The following are examples illustrating the effects of failing to get an agreement of child support modification approved by the court:EXAMPLE #1
Father and Mother enter into an agreement that Father will pay child support to Mother in the amount of $1,200 for the benefit of their minor children. The agreement is incorporated into their Final Decree of Divorce. Subsequently, the Father loses his job. The parties execute an addendum to the prior written agreement that modifies the Father's child support obligation from $1,200 a month to $500 per month until such time as the Father finds new employment, but the parties do not incorporate the addendum into a court order. After 18 months, Father obtains a new job and begins making child support payments in the amount of $1,000 per month. Five years after commencing his new job, Mother enforces the original agreement which ordered the Father to pay $1,200 per month. Because the parties' agreement was not court-approved, and the Father had not filed a motion to reduce his support obligation, the Mother successfully collects the arrearage of over $24,000.
Example #2
Father is court-ordered to pay Mother the sum of $950 per month for the support of their two minor children. Several years later, the parties agree that their older child can live with the Father. At that time, the Father reduces his child support obligation to the Mother from $950 a month to $500 per month. Two years later, the Mother successfully collects an arrearage in child support based on the Father's reduction in child support which was never court-approved. As a result, the Father owes the Mother an arrearage of almost $11,000 even though the older child has been in his custody for two years.
As you can see from the examples above, simply having an agreement to modify child support, even if it is in writing, is not sufficient to effectively modify a child support obligation. It ignores a significant "third party" to any support order - the court. Virginia recognizes that the court's review of child support is necessary to ensure that a child's welfare is adequately addressed and protected. Therefore, any agreement to amend an existing child support order should be incorporated into a court order so that it is valid and enforceable.
As mentioned above, there is an exception to the rule of law that all child support modifications must be submitted to the court for approval. In an effort to avoid parties having to go back to court with every modification, Virginia Code Ann. §20-109.1 allows a court to approve an agreement that provides for future modifications of child support without the need to return to court for said future modifications. But, this approval is granted only if the future modifications provision is self-executing. In order to be self-executing, the provision must refer to specific and objective standards for recalculating support. So, theoretically, parties may now plan ahead and agree as to how their child support will vary in the future by including a self-executing modification provision in their property settlement agreement. And, if future modifications occur, the self-executing terms of the agreement are applied and the new child support amount is valid and enforceable without court approval.
However, parties should use caution when drafting or relying upon a self-executing provision for modification of support. This is especially true when the provision does not provide specific values, dates, and terms for how to recalculate the new support amount. The appellate court has held that "provisions that require subjective determinations, such as elements of proof, interpretation, or witness credibility, cannot be self-executing simply because of the need for judicial resolution." Based on existing case law, even when parties' include a self-executing modification provision, the court does not always agree with the terms and have held that the provision is not self-executing as written. Therefore, it is advisable to still get court approval even if you have a self-executing provision to ensure that the modification is valid and enforceable. The following is an example of a parties' mistaken reliance on a self-executing child support modification provision in property settlement agreement:
EXAMPLE #3
Husband and Wife enter into a Property Settlement and Support Agreement which resolves the issue of child support for their four minor children. In the Agreement, the parties include a "self-executing" child support modification provision in order to avoid going to court for future modifications and to avoid having to get court-approval. It states that "child support shall be recalculated upon the emancipation of each child." In reliance on this paragraph, the parties recalculate child support when their oldest son emancipates. At that time, the Husband reduces his child support payments by $450 per month. Several years later, the Wife alleges that the terms of how to recalculate the new child support amount were unclear, alleges that the Husband voluntarily reduced his income and challenged the Husband's interpretation of the agreement. The Wife obtained a judgment for an arrearage of child support in an amount exceeding $36,000 based on Husband's failure to pay the original monthly child support amount. The court concluded that the terms of the child support calculation in the Agreement were not self-executing because they lacked specificity as to how to recalculate support.
Therefore, based on existing case law and the current Virginia Code, future modifications of child support should be submitted to the court for approval, even if you have an agreement in writing or self-executing child support modification provision in a court-approved agreement. The requirement of obtaining court approval for child support modifications may seem burdensome, but the public policy behind it is sound. Virginia recognizes that the court's review of child support is necessary to ensure that a child's welfare is adequately addressed and protected.
]]>Why order the test in the first place? It's a practice known as "defensive medicine." Defensive medicine is defined by different people in different ways, but the bottom line is that some physicians would prefer to order expensive and unnecessary tests than risk a lawsuit over some rare, undiagnosed condition. In other words, it's better to be safe than sorry, which is certainly a good adage. The application of defensive medicine seems to be a reality of medical practice today.
]]> As a medical malpractice attorney in a busy Fairfax, Virginia law firm, I receive frequent calls from potential clients with questions about the quality of their healthcare and the manner in which it was provided. The practical application of defensive medicine is a repeated topic of conversation.Nearly all of the people who contact me believe that they are victims of medical malpractice. Many are interested in pursuing compensation yet reluctant to sue a long-time health care provider. The majority believe that any medical error or injury resulting from health care is a compensable medical malpractice claim. Most think that medical malpractice cases result in relatively speedy settlements, without the need for litigation.
It's my practice to not only listen to their medical ordeals but also to explain to them some of the realities of pursuing a medical malpractice case.
Reality #1: Medical malpractice can come in all shapes and sizes. In Virginia, medical malpractice can result from care and treatment by a variety of health care providers in a number of circumstances.
Examples of health care providers include physicians, nurses, pharmacists, midwives, therapists, counselors, and medical technicians.[i]
Examples of circumstances that might constitute medical malpractice include surgical errors (unnecessary surgery, wrong site surgery, retained foreign objects after surgery, surgical complications), failure to diagnose or properly treat an illness or condition, prescription medication errors, wrongful death related to medical treatment, communication errors, labor and delivery complications, and consent to treatment, to name a few.
Reality #2: A poor medical outcome is not necessarily medical malpractice. Health care providers are not held to a standard of perfection - unexpected results do happen in the absence of negligence. Instead -- and I'm paraphrasing somewhat -- the health care provider is held to a standard of what is "reasonable" in the profession/area of specialty.[ii]
Reality #3: An apology or expression of sympathy from a doctor, nurse, or other health care provider is not necessarily an admission of liability. Very often I hear, "Well, the doctor already told me s/he was very sorry. How much will I get?" It's not quite that simple. The health care provider may show sympathy, but that does not mean that monetary compensation will readily accompany that sympathy.
Reality #4: Don't expect the health care provider to immediately settle and simply hand over a large sum of money. Of course, some medical malpractice cases do settle, but usually not quickly. Most medical malpractice cases are vigorously defended, even in cases of seemingly blatant negligence.
Reality #5: Medical malpractice cases are not inexpensive. In Virginia, a medical malpractice Plaintiff must -- in most cases -- have certified expert witness support in order to fully pursue a medical malpractice case.[iii] With rare exception, medical expert witnesses do not work for free. Moreover, in order to obtain the support of an expert, the expert needs to review all of the relevant medical records. Once again, with rare exception, copies of medical records are not free either.
Reality #6: Even the "best" health care providers may commit medical malpractice. This is true of the health care provider that has been treating you for years, the health care provider you saw only once for five minutes, and the health care provider with awards and plaques lining his or her office walls.
Reality #7: Lack of intent to cause injury is not a defense to medical malpractice. It's safe to say that health care providers by and large do not set out to cause harm or injury, but that same lack of intent is generally not a defense where injury does occur as a result of negligence.
Reality #8: Suing a health care provider for medical malpractice does not necessarily impact the provider's licensing or ability to continue practicing. Whether the negligent actions of a health care provider result in disciplinary action is ordinarily a decision made by an agency that has been tasked to investigate a health care provider.
Reality #9: The law does limit the time for recovery in a medical malpractice lawsuit. Limitations periods vary by jurisdiction and can be very fact-specific in medical malpractice actions. It's always wise to act on an instinct to contact an attorney as soon as possible to preserve any potential cause of action.
Reality #10: Medical malpractice is a highly specialized area of practice. Every potential medical malpractice case is unique and must be evaluated on its own merits and circumstances. If you have questions about a case of your own, gather the essential information - diagnoses, dates of care and treatment, and names of health care providers - and choose an attorney who will provide you with the opportunity to share your story.
[i] Code of Virginia Section 8.01-581.1
[ii] Code of Virginia Section 8.01-581.20
[iii] Code of Virginia Section 8.01-20.1/8.01-50.1
]]>How DNA Samples are Used
Generally, these samples can be used in two ways:
The DNA database was established in the 1980s by the federal government. It provides for national, state and local storage and exchange. Investigation potential is growing with The Combined DNA Index System (CODIS) as states continue to pass laws requiring offenders of certain crimes to provide DNA Samples.
]]> Privacy Right ViolationsCODIS is currently overwhelmed by backlogs, the labs are ill-equipped to handle the increasing number of samples and professionals working these labs need additional training to optimally use the technology. Working in such conditions will lead to mistakes, and a mistake involving such unique personal information is a privacy violation.
Courts have held the collection of DNA is a search, and thus must be reasonable. Virginia's state court ruled it reasonable for police officers to obtain a DNA sample incident to the arrest of an alleged rapist. The court stated it was not in violation of the Fourth Amendment right to be free from unreasonable searches and seizures.
Virginia extends the reasonableness view to require samples for convicted felons, but does not currently extend to misdemeanors although it may in the future. Many states have already made this extension, including Illinois, New York and Wisconsin.
Exoneration of the Falsely Accused
This extension is defended with the many successful stories of DNA samples solving crimes throughout the country. Examples include the arrest of a New York man with over 22 sexual assaults and robberies to a murdering rapist spanning both Pennsylvania and Colorado.
Although there are benefits to the use of DNA identification, privacy issues remain. As a result, if you or a loved one are accused of a misdemeanor and are asked to provide a DNA sample, it is important to contact an experienced criminal defense lawyer to ensure all your rights are protected.
Source: "Taking DNA From All Criminals Should Be Standard Procedure," New York Times, 1/23/12
]]>Note: This article discusses rules and regulations of homeowners' associations only. It isn't intended to address other forms of ownership, such as condominiums ("condos"), leases, landlord-tenant relationships, etc.
]]> How do understand what rights I have?First, the basic rights and responsibilities of every homeowner and their property owners' association are generally found in the declaration of covenants and by-laws. Every purchaser of a home in an association is entitled to a disclosure packet which contains the declaration and by-laws, when the unit is sold.[i] In addition, every member of the association in good standing is generally entitled to review and copy documents of the association upon written request.[ii] To inspect records, you must allow five (5) days written notice, and you must reasonably identify the purpose of the request and what specific records you are looking for.2 The association may impose a charge for the reasonable costs of providing copies.[iii] A copy of the declaration will also be recorded in the county land records where the association is located.[iv]
An association's declaration is a contract between all members of the association.[v] When its language is clear, it means what it says. Otherwise, it will be strictly construed against restrictions and in favor of the free use of property.[vi]
An association can adopt rules and regulations, if they are both (i) consistent with the powers given by the declaration of covenants and by-laws,[vii] and (ii) not arbitrary and capricious. The Virginia Supreme Court has said:
"Certainly, [an] association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot." [viii]
Homeowners can repeal or amend a rule or regulation adopted by the association's board of directors, by majority vote of the members at a meeting called for that purpose.[ix]
Finally, Virginia has several laws that govern homeowner rights and responsibilities. Among them is the Property Owners' Association Act, available at § 55-508 through 55-516.2 of the Code of Virginia.[x]
If a dispute develops between you and your association or another homeowner, it is best to consult with a lawyer who can advise you of your specific rights and responsibilities.
What rights does a homeowner have if the association accuses her or him of a violation of the association's rules and regulations?
Every member of the association has the right to a hearing - specifically, the opportunity to be heard and to be represented by an attorney, before the association can impose any fines or suspend a member's right to use facilities or services.[xi] The association must give the member notice of the hearing at least 14 days prior to the hearing. 11 The notice must include the charges or other sanctions that may be imposed.11
The association may - only if their declaration allows - assess fines which do not exceed $ 50 for a single offense or $ 10 per day for any offense of a continuing nature.11 However, the total charge for any offense of a continuing nature cannot exceed $900.11 The enforcement powers of the association will be further described by the association's declaration of covenants, by-laws, and regulations.
If a lawsuit is filed by the association against a homeowner to enforce a rule or regulation, the Court may award the association additional relief, such as an order compelling the member to stop or remedy the violation, money damages, court costs, and reasonable attorneys' fees incurred in bringing the suit.[xii]
What happens if the association violates the covenants?
If your association is exceeding its powers under the declaration, or is violating homeowners' rights, it is best to talk to an attorney. As a general rule, complying with the association's declaration and by-laws is NOT optional even for the association itself.
In the case of White v. Boundary Association, Inc., the Virginia Supreme Court interpreted the Property Owners' Association Act to allow homeowners to sue an association to enforce rights in their declaration of covenants, and to also allow the homeowners to recover their reasonable attorneys' fees if they prevail.[xiii] As of the time of this blog, that issue is the subject of several appeals to the Virginia Supreme Court.[xiv]
[i] Va. Code Ann. § 509.5.
[ii] Va. Code Ann. § 55-510.
[iii] Va. Code Ann. § 55-510(D).
[iv] Va. Code Ann. § 55-509.
[v] White v. Boundary Ass'n, Inc., 271 Va. 50, 624 S.E.2d 5 (2006).
[vi] "It is a well established principle that restrictive covenants on land are not favored and must be strictly construed." Barris v. Keswick Homes, L.L.C., 268 Va. 67, 71, 597 S.E.2d 54 (2004); see also Scott v. Walker, 274 Va. 209, 213, 645 S.E.2d 278 (2007). "Substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property." Id.
[vii] Va. Code Ann. § 55-513.
[viii] United Owners Ass'n of Buildamerica-1, A Condo. v. Gillman, 223 Va. 752, 767, 292 S.E.2d 378 (1982) (discussing amendment of condominium association rules); accord Va. Attn'y. Gen. Op. 10-078 ("The [Virginia Supreme] Court likely would apply similar principles in adjudicating amendments, restrictions, rules and regulations in cases involving homeowners' associations.")
[ix] Va. Code Ann. § 55-513(A).
[x] Please note that condominiums ("condos") are NOT subject to the Property Owners' Association Act. Condos are governed by a different set of requirements, set out in the Condominium Act, § 55-79.39 through 55-79.103 of the Code of Virginia.
[xi] Va. Code Ann. § 55-513.
[xii] Va. Code Ann. § 55-513; Va. Code Ann. § 55-515.
[xiii] White v. Boundary Ass'n, 271 Va. 50, 624 S.E.2d 5 (2006) (citing Va. Code Ann. § 55-515(A)); accord Augmentation, Inc. v. Atoka Chase Assoc., Case No. CL 40591, 2008 Va. Cir. LEXIS 199 (Loudoun County Mar. 17, 2008); Farran v. Olde Belhaven Towne Owners' Ass'n, CL-2011-2339, 2011 Va. Cir. LEXIS 114, 17-18 (Fairfax County Aug. 24, 2011).
[xiv] E.g., Farran v. Olde Belhaven Towne Owners' Ass'n, CL-2011-2339, 2011 Va. Cir. LEXIS 114 (Fairfax County Aug. 24, 2011).
]]>The study, conducted by the Center for Injury Research and Prevention found from a survey of 198 teen drivers, that only a minority of teens said that they were likely to drive with friends. The drivers that said that they were likely to drive with many friends also described themselves as thrill-seekers and risk takers.
These teens also said that their parents did not regularly keep track of their driving activities or set rules on driving. They were also more likely to be unaware of the dangers of risky driving.
]]> The study also surveyed 677 teen drivers who were involved in serious car accidents in the past. Out of the 677 who said that they were distracted before the car accident, 71 percent of males and 47 percent of females said that they were distracted by what their passengers were doing.Car accidents are the leading killer of teens ages 16 to 19. The study found that the main reason for this is because teen drivers are more likely to speed, blow through red lights, tailgate and engage in other risky maneuvers, if they are driving with their friends as passengers. The study concluded that with each young passenger in the car, the risk of the teen driver being involved in a fatal accident doubles.
Experts say that graduated driving laws-laws that restrict when and with whom a teen may drive-do not go far enough. It is recommended that parents take an active role when their son or daughter is learning to drive, such as making the teen sign a driving contract, clarifying driving rules, expectations and punishments for not living up to them.
Source: "Reducing teen traffic accidents," Philly.com, 2/13/12
]]>The new legislation did not change the procedures for obtaining a protective order in family abuse situations. The petition for the issuance of a protective order is filed with the appropriate Juvenile and Domestic Relations District Court.
An even more significant change that was implemented by the legislature this past year is the expansion of protective orders that were formerly only available to victims of certain crimes, namely victims of stalking, sexual battery, aggravated sexual battery and criminal offenses resulting in serious bodily injury. Now any individual who has been subject to an "act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury" may seek a protective order under Chapter 9.1 of Title 19.2. Unlike protective orders in family abuse situations, there is no requirement of a specific relationship between the parties for these protective orders to be issued. As with family abuse protective orders, there were no changes made to the actual procedure of obtaining a non-family abuse protective order. If the parties are over the age of 18 years and there is not family or household relationship between them, then a request for a protective order is initiated in the appropriate General District Court. In situations where the petitioner or the respondent is under the age of 18 years then the petition should be initiated in the appropriate Juvenile and Domestic Relations District Court, regardless of the relationship of the parties.
Protective orders formerly available under Title 19.2 were only available to victims where the respondent was subject to a criminal proceeding, however, now there is no longer a requirement that a warrant related to the referenced crimes be issued. Penalties for the violation of non-family abuse protective orders have also been modified making them more consistent with those imposed for the violation of family abuse protective orders. Previously this class of protective orders did not have provisions for increased penalties for subsequent violations and/or subsequent assaults against the protected party by the respondent.
Although the penalties for violations have been made more consistent, the relief available under family abuse protective orders remains more expansive then that available in the non-family abuse protective orders, namely, the ability of a court to grant one party temporary possession of a residence occupied by the parties or to or the respondent to provide alternative housing, to grant one party temporary possession of a vehicle owned by the parties or by the petitioner; to enjoin the termination of necessary utilities to the residence occupied by the party granted possession; to provide for temporary child custody and visitation and child support; to provide for alternative housing, and to order the respondent "to participate in treatment, counseling or other programs as the court deems appropriate." See Virginia Code §16.1-279.1.
The modifications to the protective order statutes have resulted in an influx of petitions since the law went into effect, primarily in the non- family-abuse context. Although domestic violence advocates and advocates for the changes in the law believe that the law is having a positive effect, there has been concern expressed about the additional burden placed on the district courts in the present era of budget cuts as well as the frivolous filing of such petitions and filing to gain advantage in disputes and/or companion law suits involving the same parties.[ii]
[i] The definition of family or household member can be found at Virginia Code §16.1-228.
[ii] http://www.washingtonpost.com/local/crime/number-of-requests-for-restraining-orders-explodes-in-virginia/2012/01/31/gIQAn5DZpQ_story.html
]]>From popular "crime and punishment" television and movies, most people understand this amendment to protect them from law enforcement officers entering their homes or placing wiretaps on their phones without a warrant, and this is true. But what can be considered a search may be much broader than these two situations.
]]> In United States v. Jones, the U.S. Supreme Court found that the placement of a global positioning system (GPS) tracking device on people's vehicles is a "search" within the scope of the 4th Amendment. However, in reaching this decision, the Court did not decide at what general point in time police need to obtain a warrant in order to track a suspect by GPS.A few of the justices noted that there may be instances when tracking a suspect by GPS without first obtaining a warrant may be justified. Other justices concluded that a person's right to privacy would unreasonably be infringed upon if long-term GPS tracking is undertaken without a warrant.
With this ruling, the Court put GPS tracking squarely within the scope of the 4th Amendment. However, at what point police officers need to seek and obtain a warrant is unclear in a general sense. When and even if the police need to obtain a warrant will depend on the specific facts of a situation.
Source: "Cops Need Warrant to Track You Via GPS," Findlaw.com, 1/24/12
]]>The short answer is that post separation adultery can have serious negative consequences. It can give the other party grounds for divorce, regardless of which party caused the separation. It can also bar a party from receiving spousal support. Virginia Code § 20-107.1(B) mandates that a spouse who commits adultery will not be entitled to receive any spousal support absent a finding of manifest injustice as follows:
No permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91 ["For adultery; or for sodomy or buggery committed outside the marriage"]. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. (emphasis added)
Note that § 20-107.1(B) makes no distinction between pre-separation and post-separation adultery. And case law makes clear that adultery committed at any time prior to the divorce can bar a party from receiving spousal support. In fact, the Supreme Court of Virginia has held that a trial court's denial of spousal support to the wife as a result of her post-separation adultery was "mandated" by Code § 20-107.11. In that instance, the wife's adultery occurred 9 months after the parties' separation2. The Court's rationale was that:
the statutorily mandated waiting period...is designed primarily to give the parties an opportunity to reconcile and determine if they desire the separation to be final. The commission of adultery during that period by either party to a marriage in trouble is the one act most likely to frustrate and prevent reconciliation.3
But the italicized portion of § 20-107.1(B) quoted above provides an exception to the rule that adultery will bar a party from receiving spousal support ("the manifest injustice exception"). The Supreme Court of Virginia has interpreted the manifest injustice exception as requiring that the fact finder consider two separate variables: "(i) The relative degrees of fault and (ii) the economic disparities between the parties."4 The court must consider both variables5 and apply the clear and convincing standard set forth in the statute. A thorough analysis of case law interpreting and applying the manifest injustice exception is beyond the scope of this blog. But suffice it to say that whether manifest injustice dictates that the adulterous spouse may still receive spousal support is a case-by-case determination which is made based upon the unique facts of each case.
There is anecdotal evidence that some judges are more likely to invoke the manifest injustice exception when adultery occurs post-separation. Nevertheless, the only safe course of action for spousal support candidates is to avoid post-separation adultery. There is no authority to be cited in Virginia that should make a spousal support candidate feel secure that he or she can commit post-separation adultery without consequences. The Honorable James H. Chamblin's opinion in Kirtley v. Kirtley6 drives this point home. In that case, the evidence clearly showed that the wife's adultery did not cause the parties' separation or frustrate their efforts to reconcile. But Judge Chamblin granted the husband a divorce based on the wife's adultery, and declined to invoke the manifest injustice exception7, explaining as follows:
I understand present society and the need for companionship, but there is also dignity and reverence in the institution of marriage.... . The Husband's actions may have contributed to the failure of the marriage, but that did not give the Wife the right to commit adultery, deceive the Husband, and continue to collect support from him.8
Although Kirtley is a Circuit court case, it provides a cautionary illustration of the public policy of Virginia regarding post-separation adultery. In short, it matters to the court even if it does not matter to one or both parties and attorneys should advise their clients accordingly.
[1] See Coe v. Coe, 225 Va. 616, 623 (1983).
[2] Id. at 619.
[3] Id. at 620.
[4] Congdon v. Congdon, 40 Va. App. 255, 264 (2003)
[5] Id.
[6] 1997 Va. Cir. LEXIS 662
[7] The husband's annual income was $93,885.04, while the wife earned $25,668 per year.
[8] Id. at 5. (The husband had been paying wife temporary spousal support pursuant to a voluntary agreement.)
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According to a report produced by Human Rights Watch, the number of inmates age 55 and over is growing very quickly. Prisons are not equipped to handle the responsibility of caring for inmates with chronic diseases such as hypertension and diabetes. They also have little room for prisoners who are disabled or who are plagued by Alzheimers or dementia. The cost of caring for these inmates is also seen to be problematic. Housing older prisoners can cost nearly nine times more than younger prisoners.
]]> With most states experiencing budget deficits, the future of jailing offenders is a real issue that must be considered carefully. The report found that the number of imprisoned men and women older than 55 has grown at a rate six times that of the rest of the prison population. 124,000 inmates older than age 55 reside in state and federal prisons. The number of prisoners 65 years and older also grew exponentially. In fact, 26,200 people 65 years and older are behind bars. Overall, the number of older inmates increased by 63 percent, while the entire jail population only grew by 0.7 percent.Because of these numbers, prison officials realize that they must consider geriatric facilities to keep up with aging prisoners. Jamie Feller, who authored the report, believes that supervised release programs may be appropriate for inmates who are no longer a threat to public safety. Ultimately, cost benefits will guide policy decisions regarding older inmates.
Source: New York Times "Number of Older Inmates Grows, Stressing Prisons" January 26, 2012
]]>Without advance planning, health care decisions are often left to family members when a loved one becomes incapacitated and unable to speak for themselves. An Advance Health Care Directive document puts in writing the kind of medical treatment you want if you become so ill that you can't communicate your wishes. An Advance Health Care Directive document can allow you to:
•· Create a "living will" if you do not want "life-prolonging procedures" under certain conditions.
•· Grant one or more persons the right to make medical decisions on your behalf (only if you cannot do so yourself).
•· Direct that all or parts of your body be donated after your death.
Preparing and filing an Advance Health Care Directive document in the Registry not only will relieve your family of the responsibility of making such important and personal decisions on their own, but will make your wishes and directions more accessible in the event of an emergency.
Using the Registry is easy, and registration is simple. You are asked to enter basic information, create an account, and select a personal identification number and password. You then will receive an identification card containing your personal registry information that you can carry in your wallet. You may also share your personal identification number with friends, family, and health care providers, allowing them access to your information.
While other states have similar registries, Virginia is the only state to offer such a system at no cost to taxpayers or Registry users. Additionally, Virginia is the only system designed to eventually integrate with the statewide Health Information Exchange system to further streamline the ability of hospitals and emergency responders to have access to critical health care data. The Health Information Exchange is a secure, confidential electronic system the state is creating so that a patient's medical records can be accessed by health care providers throughout the nation if a patient chooses to participate.
If interested in registering, or learning more about Advance Health Care Directive documents, please contact Jennifer B. Baumgartner, Esq., (703) 277-9745, jbaumgartner@siplfirm.com.
]]>Nowadays, many legal professionals will tell you that the stigma is virtually non-existent. Because even the most confident of engaged partners can appreciate that in the event of death or separation, a prenuptial agreement is (very simply) a valuable legal tool.
]]> At their most basic, prenuptial agreements are legal documents which detail what assets and debts are entering the marriage, so that they can be properly dealt with in the event of death or divorce. A prenuptial agreement effectively serves as a map for property belonging to spouses at the start of the union.It is important that each future spouse be represented by an attorney during the drafting of a prenuptial agreement. Both parties should be confident that the contract being crafted fairly represents their interests. Each partner should also fully understand what terms and conditions they are agreeing to.
In addition, it is important to draft prenuptial agreements well before the wedding date. Rushed agreements, or agreements which are not informed by full disclosure of what assets and debts are being brought into the union, are less readily enforced in the event of a dispute.
A fairly executed prenuptial agreement is simply a roadmap for the future. Unfortunately, all marital unions dissolve legally upon death or divorce. Even partnerships which last "until death do us part" stand to benefit from such agreements.
Source: "Prenuptial Agreements: The Good, The Bad and The Ugly," Huffington Post, 11/16/11
]]>While your divorce attorney will undoubtedly advise you of ways in which you should and should not behave before a judge, there are several commonsense tips that you can keep in mind in addition to your advocate's advice.
]]> First, be aware of the ways in which you are presenting yourself physically. The courtroom is a professional place. When in doubt, dress and behave professionally. If you arrive in ripped jeans, an offensive or suggestive shirt or reeking of smoke, this will likely affect the judge's opinion of you.In addition, professionalism is synonymous with respect. Respect for yourself, the people you are interacting with and respect for the space in which the proceedings are being held. Respectful behaviors to keep in mind include:
In an emotionally charged situation like divorce court, it is easy to lose your cool. However, keeping your emotions in check and behaving professionally and respectfully will ultimately aid you in the ultimate outcome of your case.
Source: "My Top Ten List of What Not to Do in Divorce Court," Huffington Post, 11/21/11
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