Divorce – Do I Need An Attorney?

Divorces require time and attention, and can therefore lead to substantial attorneys fees.  Many parties work out many of the details of settlement on their own and question the necessity of hiring counsel.  After all, a party is permitted to file and proceed in obtaining a Final Decree of Divorce pro se, or “for oneself.”   The answer, therefore – much like the process itself – is not a simple one.  There is not a “one size fits all” solution.  Parties dealing with particular issues or living in particular jurisdictions (even within the same general geographic area) may “need” counsel more than others. 

Understand first that simply because both parties agree they want a divorce, a matter is not rendered “uncontested.”  If the parties disagree on any of the issues that the Court must determine in a divorce proceeding (e.g., property distribution, spousal or child support, child custody/visitation) then the case is not uncontested.  Even if parties are only arguing over whether Mr. or Mrs. gets to keep the engagement ring, the divorce is not uncontested.  What also occurs quite often is that parties agree on all of these matters, but one party will not actually sign a settlement agreement or Final Decree of Divorce setting forth the agreed upon terms.  This too is not an uncontested divorce. 

Where matters are  truly uncontested (involving parties who have settled all matters and have done so in writing), the filing party may nonetheless be living in a jurisdiction with stringent requirements for the content of Final Decrees or  other complex procedures or docketing practices that render it preferable, even if not necessary, to have counsel handle finalizing the divorce.   Finally, in certain cases, there may be unique complicating factors, such as a need to serve one’s spouse out of state or by publication.  So, although every jurisdiction in Northern Virginia provides a pro se divorce package containing the tools needed to complete most, simple, uncontested divorces.  Whether those tools can be used in your case is another question: 

If one’s case is fully uncontested -- meaning that there are no disputes regarding the existence of “no-fault” grounds for the divorce (i.e., six months’ separation with written settlement agreement and no children, one year separation otherwise); property distribution (i.e., everyone is satisfied with who is taking/keeping what); child custody & visitation; child support or spousal support, or no such issues exist (no children, no marital property) -- pro se might be the way to go.   In either case, the Plaintiff would indicate in his/her Complaint  for Divorce the status (e.g., there are no issues of equitable distribution, custody or support, or the parties have signed an agreement settling them all) and if agreed, the opposing party would “admit” (i.e., concede, agree with) that allegation in his/her responsive pleading OR waive the right to file a responsive pleading altogether.  If in fact some or all of those have been resolved, rather than do not exist, one must be sure that all agreed upon terms regarding children, support and/or property distribution have been reduced to writing in a settlement or separation agreement, or at least into the Final Decree to be submitted to the Court, before you ask the Court to finalize a divorce.  Courts will not simply divorce parties with children, for example, without addressing custody, visitation and support in the Final Decree, even if merely by reference to a written agreement. 

BOTTOM LINE:  If you’re going to go it alone, do it carefully, and it’s still a good idea to sit down for a brief consultation with a RRBMDK family law attorney to make sure that your case is ripe for filing, that you’ve addressed all potential issues with your spouse, that your ducks are in a row as far as filings and service, and that there don’t appear to be any complicating factors related to your case or unique to your jurisdiction.  

Facebook and Family Law: The New Peril of Timeline

There are a number of factors that anyone having and using Facebook should consider when they are in or could be involved in a family law matter.  Of course the absolute best practice would be to delete the account, or not have any current use of it, that’s not always an easy thing for people to give up.  And deleting a Facebook account is not easy, but can be done by following these steps.  Even if you stop current use, without deleting the account there is still a lot of visible information about you out there. 

The first step should be to re-evaluate your Facebook friends wisely and de-friend estranged spouses, family and friends.  It’s also more important than ever to review those security and privacy settings.  Choose carefully who can see what information you post, and certainly never keep any part of your profile public.  One of the first things opposing attorneys do when taking a case is a general online search of the opposing party, including Facebook. 

Remember your Facebook page will still be viewable to a large number of comingled friends who can take screen shots or print your Facebook page, so being careful about what you post is also critical.  More and more often Facebook pages are popping up as evidence in divorce or custody and visitation trials.  Additionally, Facebook pages show a general trend in a person’s behavior, possible signs of an adulterous relationship and parenting decisions.  

Now all Facebook users have been forced to the new Timeline format.  Timeline was created to highlight the most memorable posts, life events and photos of your life.  This feature allows people with access to your Facebook page to view items and information spanning back to when you joined Facebook, and possibly before if you were tagged or have been tagged in events prior to your joining Facebook, easier and quicker than ever.

When your page switched over for you as a user, you had seven days to edit it before anyone with access to your page would view it in Timeline format.  After that point all your past that wasn’t hidden was placed on your visible Timeline profile.  If you haven’t done so already you should carefully go back through your timeline from start to finish and carefully review all posts and pictures.  You can hide, edit or remove any posts, or pictures, you don’t want visible to others on your timeline.  Also consider un-tagging yourself in any unflattering photos and/or ask the person who posted it to delete it.  Generally your profile picture and cover photo will still be publicly viewable, even if you have changed your privacy settings to be very strict, so be careful what photos you use for your profile and cover. 

It’s generally good practice to not over-share on Facebook, whether it be using Facebook check-ins, posts, status updates and pictures.  But also be cognizant of which applications you allow to automatically share information on your page such as Instagram, Living Social and Four Square. 

Lastly, remember that venting about what you are going through or things that an opposing party or potential witness did in a public format is never smart.  Don’t post anything you wouldn’t want a grumpy Judge, who doesn’t know you enough to put what you said in context and who controls your destiny, to see.

Do I Really Need a Will?

If one doesn’t have a Will, is it the end of the world? No, the state has a Will for you. It is called the law of intestacy; and generally the results are not unreasonable.  Your property will not go to the state, but to your nearest relative, generally in this order – spouse and then children or other descendants; if no descendants, then to parents, siblings, nieces/nephews, and so forth.  

But if you do not have a Will, then no part of your property will ever go as follows:  to your favorite charity or religious institution; to a friend; to a non-spouse life partner; to a foster child or god-child; or out of the order or with percentages different than provided by the law of intestacy.

Also, without a Will, you do not get to name your Executor, the Guardian for your children, or a Trustee to manage property for your children until they become a responsible age.  You also cannot save money by waiving surety on the Executor’s bond or by waiving the requirement for a Trustee to provide formal accountings.  Finally without a Will, tax planning is very difficult.

When should one make a Will?  I tell clients all the time that there is definitely no rush.  They have their entire life . . . however long that might be.

--Lonnie C. Rich

Employers Beware: Disqualifying All Job Seekers with Criminal History Could Be Considered Unlawful Discrimination.

Does your company ask applicants whether they have ever been arrested?  If you learn that a job applicant does have an arrest or conviction record, do you automatically eliminate that applicant from further consideration? 

 
According to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency chiefly responsible for the enforcement of anti-discrimination laws in employment, in some circumstances, rigid adherence to policies or practices such as these could make your company liable for damages for unlawful employment discrimination.  Because eliminating applicants on the basis of criminal records per se has a disparate impact on minorities, the EEOC advises  
The new (April 2012) EEOC policy pronouncement for employers, employees, and its own investigators takes the position that a blanket prohibition against any job applicant with an arrest record (or even conviction record) could have such a disparate effect in eliminating otherwise-qualified black and Hispanic job applicants as to violate federal statutory prohibitions against discrimination based upon race or national origin.  The agency advises employers to base hiring decisions not on a mechanistic application of rules of disqualification, but rather on an “individualized assessment” of an applicant’s fitness for the particular job being filled; an applicant’s criminal record should be considered only if the conduct involved is “job related for the position in question.” 

 
According to the EEOC’s chair, Jacqueline Berrien, the new guidance “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment.”  Earlier policy statements, from 1987 and 1990, warned that policies excluding any job candidate with a criminal record are not necessarily job-related and may be regarded as pretexts for racial discrimination. The new guideline states that arrest-based prohibitions can have a disparate impact on minorities and thus run afoul of federal job discrimination rules, as codified in Title VII of the Civil Rights Act of 1964.
The new policy statement, entitled, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” was unveiled after more than a year of public comment and debate, and became official on April 25th.
The EEOC does not outlaw criminal background checks, but the new guidelines emphasize that employers who run such checks should focus on the candidates’ conduct, rather than just the fact of an arrest or conviction alone, and a history of criminal misconduct should be treated as disqualifying only if it has some relevance to the demands, circumstances, or capabilities of the job being filled.
“Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest, if the conduct makes the individual unfit for the position in question,” EEOC stated. “The conduct, not the arrest, is relevant for employment purposes.”  Naturally, a record of conviction, as opposed to mere arrest (i.e. an accusation) carries greater weight: “[A] record of conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trial and guilty pleas.”

 
“As a best practice, and consistent with applicable laws, the commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

 
So, if you’re hiring, you may still screen for criminal history (convictions, far better than mere arrests, in our view).  The EEOC is not saying that you have to hire a convicted embezzler as a bank cashier or some guy with a history of burglary convictions as your night watchman.   But the criminal characteristics you are screening out should have a significant bearing on the requirements of the job itself.  And, if you do use a background check, be very careful about what questions you ask, how you ask them, and what you do with the answers.  An individualized assessment, applicant by applicant –  not the use of some cultural stereotype - is what the civil rights laws require.  
Do you have questions about the hiring process?  RRB attorneys have advised and represented hundreds of job seekers and employers over the years, and we would be happy to counsel you, your company, or your friend or relative about any aspect of employment law, discrimination, or workplace rights and responsibilities.  Give us a call at 703.299.3440 today.  

--Ed Rosenthal

© RRBMDK 2012

Collecting Delinquent Accounts Receivable

By James C. “Beau” Brincefield, Jr.

Do you ever have a problem collecting your bills?

As an attorney who does a substantial amount of collection work for clients, I have frequently been surprised that business men and women generally know so little about how to improve the collectability of their accounts. As described in this article, instituting a few simple practices and procedures can make a dramatic improvement in your collections.

Three very simple and basic things which everyone can do when he or she decides to extend credit to a client or customer are:

1. Obtain some basic information about the debtor and his/her company.

2. Obtain the debtor’s agreement to pay interest on any account not paid within 30 days.

3. Obtain the debtor’s agreement to pay costs of collection, such as court costs and attorney fees, if you have to take legal action to enforce collection of a delinquent account.

All three of these suggestions can be implemented easily in a simple, one page form which will not only satisfy all of the above objectives, but will also satisfy the requirements of a written contract which will extend the statute of limitations on the debt from three years to five.

1. Getting basic information about the debtor. With the computer databases that are now available to investigators and law firms, it is almost impossible for a debtor to disappear if you have some basic information about him, such as his date of birth and social security number. Unfortunately, I frequently find that my collection clients fail to obtain even this much basic information about a client or customer before they extend hundreds or even thousands of dollars of credit. And remember, unless you are getting fully paid in advance for your goods or services, you are extending credit. Even if it’s C.O.D., you are still extending credit until you get paid.

A properly drafted credit application/contract form need not be offensive or intrusive to a potential client or customer and it can provide a wealth of information which can dramatically improve your ability to locate debtors and collect delinquent accounts. Simply having a person’s name and address frequently is not enough because, by the time the account goes bad, the person has changed his address or changed his employment or both. If you have other basic data, (such as his date of birth and social security number), you can track him down wherever he goes.

2. Agreement to pay interest on delinquent accounts. Under the laws of most states, you cannot collect interest on delinquent accounts unless the debtor has agreed to pay it. Although courts will almost always award judgment interest, and although you can always ask for judgment interest from the date of the original bill, courts will typically award interest only from the date of entry of the judgment. In other words, even if you get judgment for the full amount of your bill, you have given the deadbeat an interest free loan for a year or two or, maybe, even longer. Equally as bad, the judgment rate of interest that you are likely to get (even if you get interest both before and after judgment) is typically a lot lower than the commercial rate that would otherwise apply.

3. Costs of collection. Perhaps the hardest blow to take is the cost of collecting delinquent accounts. Most of my first time collection clients are shocked and dismayed to find out that they are usually unable to collect more than half or two-thirds of what the debtor owes them, even when they get a judgment against him! The reason for this is that, absent an agreement by the debtor to pay collection costs, the court will usually not award the creditor attorney fees, which generally run between 25% to 50% of the amount recovered. (There are a few exceptions to this rule, such as where there are statutory provisions awarding legal fees to successful plaintiffs, but these provisions rarely, if ever, apply to collection matters.)

If you use a written credit application/contract form, you can avoid this problem with one sentence.

It is relatively easy and inexpensive to develop and use a simple credit application/contract form but it can dramatically improve the collectability of your delinquent accounts receivable.

Hanover GDC Proclaims: Not So Quick, Not-Sick Mrs. Nick!

Criminal defense attorneys are often asked to perform two very different functions:  preparing a zealous defense for trial and exploring all potential plea bargain options. An effective defense lawyer will investigate and negotiate the terms and conditions of any potential plea agreements with the Commonwealth Attorney’s Office. Assuming that the government and the criminal defendant can agree on the terms of a plea, the agreement will then be submitted to the Court for review. 

In most cases, the Court approves the plea bargain and the parties are subject to the terms and conditions of their agreement. As a recent case in Hanover County illustrates, however, the Court has full authority to reject a plea agreement if it feels that the terms are unfair. In Commonwealth v. Nicholas, it was alleged that the defendant obtained money by false pretenses by faking a terminal cancer diagnosis.  According to public records, the defendant solicited donations from members of the public by falsely claiming that she had a terminal form of leukemia. An investigation revealed no evidence that the defendant had received any cancer treatment.

Pursuant to an agreement with prosecutors, the defendant was planning to plead guilty to two misdemeanor counts in exchange for a promise that no jail time would be imposed. But the Hanover County General District Court refused the plea agreement, citing the methods used by the defendant to solicit funds, her acknowledgement of guilt, and the potential adverse impact on legitimate charitable causes should a harsher penalty not be imposed.

Although the Court rarely exercises its right to refuse plea agreements, this case underscores that the Court’s responsibility to ensure a proper balance between the interests of the public and the rights of the defendant.  In Nicholas, the plea agreement swung the pendulum too far in favor of the defendant.

When Unmarried Couples Buy A Home Together

Today, more than ever before, unmarried couples are deciding to purchase homes together. Presently, more than eight percent of all owner-occupied homes in the U.S. are owned by unmarried couples. Although there are many reasons why purchasing a home with a non-spouse is a good idea, the parties should realize that almost half of such cohabitation's break up within five years and plan accordingly.

When unmarried co-owners decide to go their separate ways, serious differences and problems usually arise just as they do when married co-owners split up. Unfortunately for unmarried co-owners, however, they do not have the benefit of either the protections provided for married couples by State laws nor do they have an established body of case law to rely upon as married couples do.

Consequently, when unmarried couples purchase homes – or any other real estate – together, it is important for them to have a written agreement that spells out their respective rights and responsibilities concerning the property, not only while they live there together, but also if and when a time comes when they decide that living together is not working out the way that they had hoped it would.

A properly written Homesharing Agreement would deal with at least the following issues:

1. Acquisition

A. Earnest Money Deposit and Downpayment. Who pays how much?

B. Closing Costs. Who pays how much?

C. Liability. Who signs the purchase money Note for the loan?

D. Title. Who gets what percentage of ownership? Does the title pass to the survivor if one of them dies?

2. Ongoing Payments

A. Mortgage. Who pays how much? Rent?

B. Real estate taxes. Who pays how much?

C. Insurance. Who pays how much for hazard and liability insurance? Other Insurance? Who and what is covered by the policies?

D. UOA/HOA/POA fees (if applicable). Who pays how much?

E. Utilities. Who pays how much?

F. Maintenance, Repairs, Replacements. Who pays how much for each type of expense? Who decides what is needed and when?

G. Improvements. Who pays how much? Who decides what is to be improved and when?

H. Other Expenses. Who pays how much for any other expenses?

3. Occupancy. Who is entitled to occupy what portions of the property? May a party lease their space to someone else?

4. Personal Property. Who owns what personal property acquired prior to homesharing? Who owns what personal property acquired during homesharing?

5. Sale or Transfer of Interest. Under what circumstances will a party be allowed to sell or transfer their interest in the property; or compel the sale or refinance of the entire property? Put/call options? Who is entitled to stay? Who must go?

6. Management/Control. What degree of agreement (unilateral? unanimous? majority?) is necessary between/among the parties before a decision can be made that materially affects the condition, use and/or enjoyment of the property?

7. Default. What happens if one party cannot pay their share of any required payments?

8. Distribution of Proceeds upon Sale. What is the priority of distribution of funds upon sale? Who takes how much of the loss if the property cannot be sold for the price that was paid for it?

9. No partnership. The Agreement should state that it does not create a partnership for any purpose, including federal income tax purposes.

10. Termination of Agreement. Under what circumstances, if any, can a party terminate the Agreement?

Properly planning, in advance, for these types of contingencies can spare both parties a great deal of acrimony and emotional distress, not to mention thousands of dollars of expense, if and when they decide to go their separate ways.