2018 Va. family law legislation: Alimony, court reporter reform, abuse prevention, child support, inheritance, violence, legalized adultery?

UPDATED APRIL 10, 2018

MODIFICATION BY THE GOVERNOR 

  •  HB 1351 Joint legal or physical child custody; custody and visitation decisions, communication to parties. Governor added: In any case or proceeding involving the custody or visitation of a child, to enable the child to apply for a state or federal benefit and upon the request of any party, the court shall make any finding of fact required by state or federal law in order for the child to receive such benefit. The existing language, which the Governor did not change, is: "The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody."  The bill's original text, completely replaced as it went through both houses, was, "The consideration of "joint physical custody" means the court shall consider custody and visitation arrangements that are reasonably constructed to maximize a child's time with each parent to the greatest extent possible in the child's best interests." At least the statute still says, "The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children." 

ENACTED, SIGNED BY GOVERNOR

KILLED (incl. passed by, stricken, tabled, continued to next year ...)

  • HB 599 Child support; nonpayment, amount of arrearage paid, suspension of driver's license.
  • HB 1223 Erin's Law, having schools educate children to recognize, resist and report molestation
  • HB 661 Assault and battery against a family or household member; enhanced, penalty. [Passed house, passed senate with substitute,  each house insisted on its own version, time ran out for Conference Committee]
  • HB 411 Assisted conception; gender-neutral as to same-sex.
  • HB 998 Parental or legal custodial powers, temporary delegation of; child-placing agency. [Passed House, continued to 2019 in Senate committee]
  • HB 807 Custody and visitation agreements; best interests of the child, violent abuse of other family members
  • HB 412 Marriage-related criminal laws; gender-neutral terms, adultery repeal, penalty.
  • HB 413 Adoption; gender-neutral as to same-sex.
  • HB 414 Same-sex marriage; marriage laws, gender-neutral terms.
  • HB 478 Domestic violence-related misdemeanors; enhanced, penalty.
  • HB 1237 Assault and battery against a family or household member; first offense, enhanced penalty.
  • HB 149 Child support order payee; change in physical custody of child, orders involving DSS.
  • HB 1331 Child support; review of guidelines federal compliance.
  • SB 64 Custody and visitation decisions; communication to parties required in writing.
  • SB 70 Custody and visitation; rights of parents with a disability.
  • SB 178 Parental or legal custodial powers, temporary delegation of; child-placing agency.
  • SB 596 Victims of domestic violence, etc.; firearms safety or training course.
  • SB 603 Same-sex marriage; gender-neutral terms.
  • SB 612 Assisted conception; parentage presumption.
  • SB 727 FOIA; exemptions for courts of record, courts not of records and Office of the Executive Secretary
  • SB 938 Child support; withholding of income, contracts with an independent contractor.
  • HB 216 Guardians, licensed physician, etc.; annual reports to include medical examination.
  • HB 383 Missing-heir search firms; void contracts.
  • HB 406 Guardianship; protects communication between incapacitated persons & others, notification of relatives.
  • HB 406 Guardianship; communication between incapacitated persons & others, notification of relatives.
  • HB 1403 Electronic wills; requirements.
  • HB 1565 Presumption of death; missing person reports.

 Compiled by John Crouch, updated by John Crouch and Sarah Araman


A mentor in the dark, dangerous art of drafting, a model for lawyers' and law's service to clients and lawmakers

Richmond lawyer and professor Rodney Johnson, who died last Wednesday, was one of my most important teachers, although only through his formbooks and continuing-education course. He and William & Mary Prof. John E. Donaldson gave me an outstanding model for how the content and practice of law should intersect with real people’s lives, and how lawyers should interact with legislatures. They were my first instructors in drafting, a dark and mysterious art that I care about deeply. All of their teachings affect my techniques in family law and mediation just as much as in drafting wills, trusts, powers of attorney, etc.

I still use Prof. Johnson’s forms for my wills, etc., though I have painstakingly translated them into plainer English and have made them even more modular, and even easier to customize efficiently while avoiding common revision mistakes and unintended consequences – i.e., building on his inspiration to make them even more “Johnsonian”. Documents should have the legal effect that people intend, across time, but should also be worded so that non-lawyers understand them: two goals that can be mutually exclusive, and require great effort and imagination to combine. They must be built to withstand every possible unexpected sequence of events, continuing to carry out the client's wishes even though most clients don't want to think about the possibilities. To minimize the need to go to court, or even to lawyers, to figure out what they mean. And to discourage and survive the tampering of clients who know a little bit about the law and terminology, most of it wrong, and think they know everything.

I came into law school already believing in the ideal of the Common Law as explained by Bruno Leoni in Freedom and the Law: that the law, at its best, reflects the rules of life, adapted to local conditions, which most people find fair and workable when they actually have to apply them to resolve real disputes. And that therefore, common law, forged and evolving in jury trials and judges' decisions, is better than legislation, which can be made up in a vacuum and based on ideologies and grand systems that look impressive on paper but are irrelevant to real life. What I learned from Johnson, Donaldson, and other teachers did not change that, but gave me a solid idea of how to achieve those objectives in the legal system as it actually is. Legislation about wills, trusts etc. should work so as to provide "default" rules, and rules of interpretation, to carry out what most people would want, intend and mean if they thought about it and had a chance to spell it out expressly. But also make it easy for people with different wishes to put those into effect. Legislation can be an efficient way to tweak the common-law rules, and older statutes, to make the laws and personal documents do what most people directly affected by them most often want them to do. This can and should make litigation and adjudication less necessary. It should also make it less necessary for people to hire lawyers and make or update their wills, contracts, trusts, powers of attorney, etc. Lawyers should work with legislators, as Professors Johnson and Donaldson did, by telling them what kinds of laws make things easier, fairer and more peaceful for clients and families, and what laws have had, or might have, unintended consequences; not lobbying for any particular faction based on gender, age, class, or some other special interest, but to increase everyone's welfare by lubricating the system and reducing conflict and court involvement in people's lives. That's the kinds of laws and lobbying that we heard about in law school, and it is what I and others try to to when informing legislators about the pros and cons of family-law legislation, as well.

J. Rodney Johnson, lawyer, expert in wills and trusts, dies at 75

By ELLEN ROBERTSON Richmond Times-Dispatch


Gambling problems and senior citizens: Family lawyers should be alert

I'm posting this because family law attorneys need to know about it, or more to the point, need to THINK about it even though we already know it. But it's something that everyone should be concerned about.

"Problem gambling among vulnerable older women is strongly linked to the proliferation of the modern slot-machine-dominated casino. 

"Simply put, the new slot machine is engineered to addict people. It produces a mesmerizing experience of sound, lights and repetitive motion that makes both time and money vanish. Players talk of “disappearing” into the machine and getting into a zone.

"Seniors, who may suffer from physical, mental and emotional health problems, are especially at risk of succumbing to computerized slots. Medication, cognitive impairment, depression and just plain sadness can interfere with judgment and decision-making. And the casino itself – dark, smoky, and filled with incessant noise, pulsating light and dizzying carpet patterns and layout — can contribute to mental confusion and disorientation. It is not uncommon for older people to suffer sudden heart attacks while playing the slots."

From:

Amy Ziettlow, Seniors in Casino Land: Tough Luck for Older Americans

and

"The Harmful, Even Deadly — Effects of Casino Gambling" By Amy Ziettlow, Tampa Tribune 2/23/14

 


Social Security keeps divorcées, widows in the dark about benefits via spouse's earnings - PBS

"The Social Security Administration won't let divorcées have access to their ex spouses' earnings records. Nor will it let widows and widowers have access to their late spouses' earnings records.", according to Larry Kotlikoff, quoted on PBS's "The Newshour". Despite the fact that ex's earnings can determine how much one can expect to receive in social security benefits, and are the key factor in choosing whether to receive benefits based on one's own earnings or those of a particular spouse or former spouse.

How Social Security keeps divorcées and widows in the dark about their benefits

 


Virginia legislature addresses beneficiary-designation mess

Virginia's General Assembly recently finished its work for the year, and tried to remedy the conflict between state and federal laws on what happens to an insurance beneficiary designation for a spouse when there is a divorce. The problem came to a head with a recent  Virginia Supreme Court decision saying that Virginia Code § 20-111.1, which automatically revokes beneficiary designations upon divorce unless the divorce decree or agreement said otherwise, could not be applied to federal employees. (Which implies that it couldn't apply to veterans or servicemembers, either.) But there have been problems in individual cases for years.

The legislature's solution, for now, is HB 282 Divorce or annulment; revocation of death benefits; notice.  It amends the statute on beneficary designations being revoked by divorce, NOT by removing or changing the language that tries to overrule federal preemption of the state statute, but by adding: 

E. Every decree of annulment or divorce from the bond of matrimony entered on or after July 1, 2012, shall contain the following notice in conspicuous, bold print:

Beneficiary designations for any death benefit, as defined in subsection B of § 20-111.1 of the Code of Virginia, made payable to a former spouse may or may not be automatically revoked by operation of law upon the entry of a final decree of annulment or divorce. If a party intends to revoke any beneficiary designation made payable to a former spouse following the annulment or divorce, the party is responsible for following any and all instructions to change such beneficiary designation given by the provider of the death benefit. Otherwise, existing beneficiary designations may remain in full force and effect after the entry of a final decree of annulment or divorce.

 

To avoid thereby misleading people who have life insurance other than FEGLI or SGLI, it would be prudent and useful for that notice to add, “And then again, they may not. It depends on what kind of benefits they are, and on state and federal law.” The new legislation also does nothing about federal employees, retirees, servicemembers and veterans who are already divorced, who are also affected by the recent court decision. At least it provides another occasion to get the word out to them that they need to check their beneficiary designations.


Yes, Good Lawyers DO Use Standardized Forms

There was a question on avvo.com from someone who was surprised and concerned that he and his girlfriend had wills that were identical, even though they were drafted by lawyers from opposite ends of the state. Other lawyers who answered the question seemed to be saying that the lawyers who used such cookie-cutter forms were not very professional. I strongly disagree. Here is what I wrote:

There is absolutely nothing wrong with that. Standard forms are usually the product of a lot of field testing and revision over the years, and lawyers are very conservative about sticking with language that works, that holds up in court and effectively carries out what clients want. If you were both doing similar things with your wills at the time, it makes sense that they used uniform tools and parts. 

Besides software, there are other sources of forms that are widely used within any particular state. Here in Virginia, there are popular Continuing Legal Education seminars and manuals that provide forms for lawyers to use. We also had a leading bank in our state that made will and trust forms available for lawyers. 

By using the standard language and not messing with it, the lawyer can ensure that the will will put the client's wishes into effect without running afoul of all kinds of obscure rules and traps that have come up in the approximately 750-year history of Anglo-American inheritance law. 

And by keeping things in the same order, with the same numbering system, the lawyer can get to know the form intimately, and when a client asks about the meaning or origins of a particular provision, the lawyer can tell them, without finding their individual file. 

Of course, not every will is exactly the same. It is not one-size-fits-all. We work with SETS of forms, and any one form will include optional language that we select from. But they are designed so that you can make these changes with as little customization as possible. The more things you have to change or custom-draft, the more things can get screwed up. 

Personally, I think my wills don't look exactly like anyone else's -- I have adapted the common Virginia form set that I use, translating it into plainer English, but that is an extremely delicate operation -- it's far better not to attempt it, than to try it and screw it up in some way that might not be discovered for decades.