Pending 2020 Virginia Legislation: Not Much Family Law, But Lots of Laws About Families and Children

By John Crouch with Sarah Panariello

This year's legislative session includes many modest but salutary amendments to make family life and family law a little more efficient and fair, and immense amounts of political legislation that will have various side effects on families and family law cases. So there are only a few bills that do anything significant about family law practice. But there are many that aim to protect children, and which will affect families and will work their way into family law cases.

This blog post will be updated throughout the legislative season to track all family-law bills, and many bills on other topics that could affect family life and family law cases. They are listed below based on what stage of the becomes-a-law process they are at, and then, within that, by subject. If anything is incomplete or not up to date, please inform us by commenting.

HIGHLIGHTS

A bill makes pendente lite spousal support guidelines apply in Circuit Court as well as Juvenile, and reduces them slightly to account for the recent federal tax law change to taxing payors instead of payees for alimony. Another clarifies that after "reserving jurisdiction" to award spousal support, such support can only be awarded based on a material change of circumstances, unless the agreement or divorce decree expressly says otherwise.  There is also a tweak to the new statute that made alimony awards in new separation agreements be presumed modifiable unless they expressly said otherwise. That would still be the rule, but the statement that prevents or limits modification will no longer have to be in the exact words prescribed by the Code.

But who says there's no free lunch, or that the General Assembly has no family-law visionaries? In fact, one bill says child and spousal support can only be based on net income -- not on gross, and not on earning capacity or imputed income. Another says if support is going through the DCSE, the payee gets paid even when the payor doesn't pay. Sadly, despite much talk about transforming the Old Dominion, Virginia is not yet the Big Rock Candy Mountain, the place where, as Captain John Smith promised, "Evereey manne shall cavorte and bee fruetfulle and multiplye under his owne vyne and figge tree."  These two were among the very first bills to die.

A bill splits unpaid expenses of pregnancy and childbirth in proportion to the parents' incomes, if a support case is filed in the child's first six months. Another clarifies that courts can award child-related tax credits, not just dependency exemptions. The cap on what is considered reasonably-priced court-ordered health insurance is lowered significantly.

Several bills tweak the factors and presumptions in child custody and visitation decisions, but probably with little effect anytime soon. Judges could consider the motives of both parties in grandparent visitation disputes; would be urged to assure frequent, continuing contact with both parents -- of course only "where appropriate" (sigh); and should consider a party's history of violent or sexual abuse even if it involved their other partners and children, not the ones the case is about.

Another emphasizes that both parents must have equal access to day care records and information. Speaking of day care, a huge change is being proposed that would create a comprehensive system of public and private day care for everyone, like unto the K-12 school system. Similar proposed comprehensive social programs include several efforts at universal health care, and a state-run retirement account that private employers could opt into.

One bill says that if you bring a contempt case and you lose, you can appeal the "not in contempt" finding to the Court of Appeals, fixing an oddity in the law that has come to light in the last few years. As for judge-initiated "summary" contempt punishments, someone considered it helpful to expand the maximum jail time to 30 days.

Another such oddity being targeted this year is the rule that in Juvenile Court, fee awards are only based on relative economic circumstances, and nothing else. 

Many others are nice little changes, but frankly minor. One bill gets rid of the third-party corroborating witnesses to prove divorce grounds. Others put legal notices into online publications and take them off of the courthouse door, and let you send notice of publication orders by email, sometimes.

One perennial minor annoyance is the requirement to file an original of the return or affidavit of process-service within 72 hours. When you're having people served in faraway states or on other continents, as I regularly do, that's often impossible.  The questionable 72-hour rule remains, but there is a bill that allows copies, faxes, scans etc. instead of the original.

As always, there are many bills cracking down on domestic violence and sexual abuse, but there is so little of this still left to do that they are exceedingly marginal. This year's crop includes some imaginative efforts against new twists on domestic abuse which are creative, but sadly, probably not completely hypothetical: using electronic remote control of things in and around the victim's home, and filing lawsuits to retaliate against, or deter, victims' pursuing civil or criminal remedies. There is also an interesting proposal for protective orders to include restitution for several economic costs caused by abuse.

Adult guardianship and conservatorship are facing a major overhaul. It puts much more scrutiny on guardians and other fiduciaries, while emphasizing that elderly people should not lose any more autonomy than is absolutely necessary, should have a voice in their own guardianship cases, and generally should not be cut off from any other family members.

A few bills aim to decriminalize school and adolescence. A couple assure schools that they do not have to involve the police every time a child does something that might be a misdemeanor. Another says that schools and school buses are not "public places" when applying criminal laws against "disorderly conduct."  Sunscreen would no longer be contraband in school, but the kids would have to stay out of tanning parlors. Other bills aim to put fewer children on the sex offender registry for the rest of their lives, and send most teenage "sexters" to counseling instead of child-pornographer prison.

Sexual freedom and discrimination: One bill abolishes the requirements for children to get a parent's or a judge's permission for abortions. Another puts absolute reproductive freedom in the state constitution. Others require employers and insurers to pay for abortion, sterilization, and everything in between on the spectrum of contraception;, severely limit "conversion therapy"; repeal the "conscience clause" that lets religious institutions with traditional moral beliefs keep operating adoption agencies, and do several things to banish all forms of anti-gay or anti-trans discrimination. One even says that "inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation" is legally child abuse or neglect. There are also high-profile, fast-tracked bills ratifying the federal Equal Rights Amendment. 

Many bills incrementally restrict minors' access to guns. Almost all of them seem mostly harmless, requiring locking weapons away from minors, extending to age 18 the crime of  recklessly allowing minors under 14 access to firearms, making it a felony, and changing that "recklessly" standard to "negligently." Such rules should be fine if they actually are applied with factually informed standards for what is reasonable, what is reckless, and what is negligent in that particular community and household.

BILLS AND THEIR STATUS

APPROVED BY GOVERNOR: None yet.

PASSED BOTH HOUSES: None yet.

PASSED ONE HOUSE, ON FLOOR OF THE OTHER:

SJ 1 Ratifies Equal Rights Amendment

HJ 1 Ratifies Equal Rights Amendment

PASSED ONE HOUSE, IN COMMITTEE OF THE OTHER: 

PASSED ONE HOUSE, IN SUBCOMMITTEE OF THE OTHER:

SB 186 Individualized education program teams; Dept. of Education to develop guidelines.

SB 214 GALs to review and report on Individualized Education Plans in young-adult guardianship cases

SB 186 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries

SB 44 Lets students keep and bear sunscreen without a doctor's note, etc.

SB 355 Assisted living facilities; audio-visual recording of residents to be studied, stakeholder-grouped, then regulated.

SB 70 Firearm transfers; criminal history record information check, penalty.

SB 238 Increases required kindergarten hours 83%

SB 247 Gender-neutral terms in no-fault divorce law.

SB 62 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics

HB 143 Unemployment compensation for leaving employment to follow military spouse 

SB 472 Foster care; encourages termination of parental rights improves training and information about voluntary and involuntary termination, independent living needs assessments.

SB 156 Fostering Futures program to provide services and support to former foster care children now between 18 and 21

SB 240 "Red Flag" Firearms removal from person posing substantial risk of injury to himself, etc., penalties.

OUT OF COMMITTEE IN ONE HOUSE:

HB 637 "Reasonable cost of health care coverage," in law on ordering coverage as part of child support, to mean no more than 5% of providing parent's income, instead of 5% of parents' combined incomes.

HB 1530 No-fault divorce grounds corroboration requirement repealed.

HB 1500 Pendente lite spousal support guidelines shall apply in Circuit Court as well as Juvenile, and are reduced slightly to account for federal tax law change taxing payors instead of payees for alimony. 

HB 1501 Spousal support in a stipulation or contract made after 7/1/18 is still modifiable if the contract does not expressly say that it is not modifiable, or limit modifiability; but that express statement will no longer have to be in specific wording required by statute.

HB 436 Uniform Child Custody Jurisdiction and Enforcement Act; disclosure of identifying information when one party claims it would be dangerous: Currently, once one party claims this, it cannot be disclosed unless the court decides to in a hearing within 15 days of the filing of a pleading. This bill adds "or affidavit" after "pleading." 

HB 834 Courts may permit notice of an order of publication to be given by electronic means in addition to or in lieu of publication in a newspaper

HB 137 Guardians ad litem for children must give certification of compliance with standards.

HB 967 Military service members' spouses: expediting the issuance of professional credentials

HB 305  Fee for lodging, etc., of wills increased from low to mid-single digits

HB 904  Public sports programs' volunteers and employees shall be mandated reporters of suspected child abuse/neglect

HB 778  60 instead of 45 days for "family assessments" when children alleged to be at risk.

HB 402 Public school lock-down drills, frequency, exemptions.

SB 173 Stun weapons; prohibits possession on school property, exempts holder of concealed handgun permit, but only if it remains in vehicle

HB 999 Schools must have epinephrine constantly accessible, along with staff trained to administer it 

SB 733 Abortion: Informed consent no longer includes ultrasound, provision of specified information, or offer to review certain printed materials; physician's assistants and nurse practitioners can perform abortions, abortion facilities will not have to comply with regulations for hospitals.

HB 839 Probate tax exception/refund for Virginia Beach mass shooting victims

IN FULL COMMITTEE IN ONE HOUSE:

Custody/Parenting Time

SB 571 Grandparent visitation when parent dead: factors court must consider, including parties' motivations

SB 105 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse," in addition to the current requirement to consider any "history of family abuse." 

HB 861 Requires courts in custody and visitation cases to consider  "any act of violence, force, or threat as that phrase is defined in § 19.2-152.7:1 against an intimate partner or the intimate partner's child, or any history of sexual abuse or child abuse," in addition to the current requirement to consider any "history of family abuse." 

SB 430 Each parent to have access to child-care records, regardless of custody.

Child Support

SB 434 Court may award either parent the right to claim child-related income tax credits as well as dependency exemptions.

SB 428 Any unpaid medical expenses for pregnancy and birth to be split in proportion to income, if support case filed before child 6 months old.

Spousal support

SB 432 Material change of circumstances required before court may use post-divorce "reserved" jurisdiction to order spousal support, unless a contract, stipulation or court order says otherwise. 

Marriage

HB 863 Person to perform marriage may be designated by marriage license applicant instead of by a judge's order; may perform it anywhere in the state; no bond required for such persons, nor for Quakers performing marriages; record of marriage may be filed by one of the newlyweds or the celebrant; no jail for performing unlicensed marriage or issuing unlawful marriage license.

Divorce

Adoption

HB 94 Must give proper notice of adoption proceeding to legal custodian.

HB 721 Post-adoption contact and communication agreements; parents whose parental rights were involuntarily terminated may enter such agreements.

Elder Law/Wills/Trusts/Probate

SB 352 Encourages avoiding guardianship and conservatorship when a "supported decision-making agreement" is feasible instead; GALs in adult guardianship cases must consider and report on that alternative.

Child Abuse/Foster Care

SB 501 Adoption and foster care home studies may be done by anyone who has completed the training program; regulations to be issued.

SB 178 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.

Child Safety

SB 593 All firearms in a licensed in-home day care provider's home must be stored unloaded and locked up.

SB 71 Firearms; possession on school property.

HB 38 Tanning facilities prohibited for minors.

Education

HB 134 IEP teams must consider appropriate instruction about sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries

SB 390 Reduces Standards of Learning assessments to the federally-required minimum

SB 729 Schools don't have to contact police about all conduct that might be a misdemeanor

HB 223 Education, recommendations for improving civic education.

Sexual Abuse/Assault

SB 579 Streamlines & reorganizes Sex Offender and Crimes Against Minors Registry process; lower-level offenders will no longer have to register annually.

SB 440 Electronic transmission of sexually explicit visual material by minor: misdemeanor, if the perpetrator is the only person in picture or if less than 10 pictures of another minor; alternative sentencing, rehabilitation programs, community service, avoiding permanent record or sex offender status.

SB 297 Creates Sexual and Domestic Violence Prevention Fund, administered by Department of Social Services, in coordination with Department of Health and the Virginia Sexual and Domestic Violence Action Alliance, to develop and support programs that prevent sexual and domestic violence;  promote healthy practices related to relationships, sexuality, and social-emotional development; and counteract the factors associated with the initial perpetration of sexual and domestic violence.

Domestic Violence/Protective Orders

 SB 145 Assault, assault and battery, or bodily wounding of a person protected by a protective order is a Class 6 felony. Currently, this is only if it results in serious bodily injury.

HB 1182 Protective order may include temporary spousal support and restitution for property damage, medical bills and other financial loss caused by abuse.

HB 880 Protective orders; expedites process to dissolve order when petitioner requests it.

HB 870 Sexual abuse: 20-year statute of limitations for everyone, not just when victim was a minor

SB 490 No guns after conviction of stalking, domestic violence or sex assault; criteria for restoring gun rights.

Health

SB 423 Health insurance; mandated coverage for hearing aids for minors.

SB 213 Study increasing the Personal Maintenance Allowance for people receiving Medicaid, etc.

LGBT Issues

HB 145 Statewide minimum guidelines on treatment of transgender students to be developed; public elementary and secondary schools must adopt or exceed them.

Mental Health

Military Families

Abortion

SB 917 All health insurance plans, including state ones, must cover abortion, voluntary sterilization, genetic mutation screening/counseling, domestic violence screening/counseling, STDs, all forms of contraception, and many other "reproductive health" and women's health services. A very few strictly-defined "religious employers" might get an exception from abortion-funding requirement.

Procedure

SB 408 Notices of civil case appeals shall be certified-mailed, not posted on the courtroom door.

SB 451 Juvenile and domestic relations district court; awards of attorney fees shall be determined based on all relevant factors, not just the relative financial ability of the parties.

Constitutional

IN SUBCOMMITTEE IN ONE HOUSE:

Marriage

Divorce

HB 1425 Race information not required in marriage records, divorce/annulment reports, VS-4s, nor divorce statistics

Custody/Parenting Time

HB 485 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent" 

Child Support

HB 690 Temporary Assistance to Needy Families (TANF): Child support collected for non-TANF children shall not be taken to reimburse state for TANF money for parent's other children.

Domestic Violence/Protective Orders

HB 867 Single-sex domestic violence shelters allowed.

HB 1077  Lets minors petition for a protective order on their own behalf

HB 470 Protective orders; non-lawyer social services department employees can petition court for protective orders on behalf of incapacitated persons

HB 159 Protective order may prohibit using any electronic device to remotely control anything in or around petitioner's home

HB 625 Redefines family abuse, as grounds for protective order, to include identity theft

HB 1288 No guns after two misdemeanor household-member assault and battery convictions; criteria for restoring gun rights.

HB 78 No guns after even one misdemeanor household-member assault & battery conviction; criteria for restoring gun rights.

HB 628 Lets courts sanction people for filing certain claims in retaliation for, or in order to discourage, actions taken by victims of violence to obtain an order of protection or to pursue criminal charges. This "includes any claim of defamation, intentional infliction of emotional distress, malicious prosecution, or abuse of process that is filed in retaliation for or in order to chill, discourage, or limit any legitimate action taken by a victim of (i) family abuse; (ii) an act of violence, force, or threat; (iii) stalking; or (iv) sexual assault to obtain any order of protection or criminal charges based on such family abuse, act of violence, force, or threat, stalking, or sexual assault. Any such pleadings found by a court of competent jurisdiction to lack either justification in existing law or a good faith argument for the extension, modification, or reversal of existing law shall be presumed to have been filed for an improper purpose."

Retirement

HB 775 My Virginia Plan; multiple employer retirement plan for private employers and their employees.

Procedure

SB 229 Pleadings, motions, and other papers with missing or defective signatures are void unless defect is promptly cured, or unless there is no timely objection to the defect.

HB 780 Courts to accept copies of proofs process-service in place of originals

SB 693 Common-law defense of intra-family immunity abolished in wrongful death cases.

HB 588 Lets legal notices appear in online publications

HB 712 Lets legal notices appear in online publications

HB 401 Court-appointed counsel for parents in child welfare cases to get additional compensation in the very low three figures

HJ 22 Study deficient/outdated training of substitute and retired district court judges 

Elder law/Wills/Trusts/Probate

HB 862 Guardianship; limits on how guardian may restrict communication with close relatives and friends; procedure and standards for courts to resolve disputes about such communication; guardian who restricts communication in bad faith or in his own interest may have to pay others' costs.

HB 841 Guardianship suits: person it's about shall have right to counsel and to participate and be heard. If not represented, counsel must be appointed. 

 

HB 304 Guardianship and conservatorship petitions must include identifying characteristics/description of the respondent, which shall be included in the information sent to the Criminal Records Exchange.

HB 76  In suits on written contracts subject to 5-year statute of limitations; if a potential party is a missing person judicially declared dead and the cause of action accrued after they went missing, executor of estate has one year from the declared-dead order to file suit.

SB 261 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath; not to do so is a misdemeanor

SB 308 Accounts filed by fiduciaries and reports filed by guardians must be signed under oath under penalty of felony perjury

HB 1321 Supported Decision-Making Act: allows an adult with an intellectual or developmental disability to enter into an agreement with another person, called a "supporter," who will assist the adult in making decisions to manage his affairs, giving them a less restrictive means of receiving assistance than being appointed a guardian or conservator by a court.

HB 96 Powers of attorney must be signed in presence of a witness or notary public

HB 362 Physician assistants, not just doctors, can make determinations that patient has no capacity to make informed decisions

HB 331 No one particular clinical diagnosis automatically means you're incapacitated.

HB 736 State estate tax reinstated, unless most assets are in a working farm or closely held business

HB 641 Funeral homes must accept caskets provided by third parties, but need not store them

Military Families

Sexual Abuse/Assault

HB 298 Misdemeanor sexual offenses; increases statute of limitations, where the victim is a minor.

HB 462 Certified sexual assault nurse examiners; Secretary of HHR to study shortage.

HB 251 Prostitution-related crimes; minors, including taking minors or spouse to "a bawdy place", expands sex offender registry, trafficking, pimping, racketeering

HB 252 Causing or encouraging acts rendering children sexually abused; penalty.

HB 288 Criminal sexual assault; definition of sexual abuse, complaining witness under age 13

HB 475 Virginia sexual assault forensic examiner coordination program; established, report.

Child Abuse/Foster Care

HB 580 Child abuse and neglect includes inflicting, creating, allowing or threatening any physical or mental injury based on gender identity or sexual orientation.

HB 809 Welfare department must investigate any report of child abuse and neglect by any "relative by blood, marriage, or adoption, caretaker, or other person with supervisory control over the child or responsible for his care or ... person who resides or is regularly present in the same household as the child."

HB 1051 Repeals "conscience clause" that allowed child-placing agencies to refuse to perform, assist with, counsel, recommend, consent to, refer, or participate in any child placements that violate the agency's written religious or moral convictions or policies.  Prohibits the Department of Social Services from contracting with or providing funds, directly or indirectly, to any child-placing agency that discriminates against the child or otherwise eligible prospective foster or adoptive parents on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, or status as a veteran.

HB 289 Requires that interviews of child victims of alleged sexual abuse be conducted as a forensic interview at the local child advocacy center

HB 920 State-Funded Kinship Guardianship Assistance program created to facilitate child placements with relatives, including "fictive kin", and ensure permanency for children in foster care. "Fictive kin" means persons who are not related to a child by blood or adoption but have an established relationship with the child or his family.

HB 673 Cruelty to children; increases penalty to a Class 4 felony.

HB 287 Extends from one year to three years the period of time for which the Department of Social Services must retain records of unfounded investigations of child abuse or neglect before purging.

Child Safety

HB 600 In-home day cares must store guns and ammo separately, and locked up

HB 799 Day cares must test all drinkable water sources for lead.

HB 955 Children's online privacy protection; release of personal information prohibited.

HB 356 Child labor; employment of children on tobacco farms

HB 675 License restrictions for minors; use of handheld personal communications devices.

 HB 463 Minors; allowing access to firearms

HB 853 Firearms; recklessly allowing access to certain persons (including minors, but with major exceptions, see Va. Code § 18.2-308.7)

HB 1080 Firearms or other weapons; unauthorized to possess on school property.

HB 1083 Minors; allowing access to firearms, Class 6 felony; no unsupervised use under age 12.

HB 72 Allowing access to firearms by children; recklessly leaving loaded, unsecured firearm.

HB 578 Smoking; illegal in motor vehicle with a minor present (current law only covers minors under 8)

HB 939 Public high schools must teach firearm safety education, and must do so without firearms.

Education

HB 256 Criminal disorderly conduct does not include things students do in school or on bus

HB 257 Schools don't have to contact police about all conduct that might be a misdemeanor

HB 1012 Early childhood care and education; establishes comprehensive public-private system basically like the school system, and operated and regulated by the Department of Education.

HB 455 TANF (welfare) receiving families to get community college scholarships in pilot program

HB 678 Parental Choice Education Savings Accounts

HB 931 Public schools; reduces number of Standards of Learning assessments, report.

HB 197 Financial literacy objectives; study incorporating them into math SOL

Health

HB 529 Universal health care; study options for financing.

HJ 18 Universal health care; study cost of implementing in the Commonwealth

HB 823 Health Insurance Premium Payment program coverage expanded

SB 633 Music therapy to be strictly licensed and regulated

HB 687 Doulas to be state-regulated, registered and certified

Mental Health

SB 431 Mental health professionals may not restrict parents' access to health records, or refuse to testify, as a condition of providing services.

HB 308 Students' excused absences for mental and behavioral health reasons

HB 42 Health care providers must be trained in screening patients for prenatal and postpartum depression

SB 315 Emergency rooms must screen for depression, provide info/referrals

Abortion

HB 1473 Surrogacy contract provisions requiring abortion or selective reduction unenforceable, void, against state public policy.

LGBT Issues

HB 623 Gender-neutral terms throughout the Virginia Code, including laws that punish incest, defaming a lady's "virtue and chastity", or leaving one's wife in a "bawdy place", whether that is for the purpose of prostitution or for "unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus"; removes prohibitions on same-sex marriage and civil unions. Seems a bit of a mixed bag for the cause of gay rights.

HB 386 Conversion therapy prohibited for minors or when state-funded. No state benefits for it; no state contracts or grants to any entity that does it or refers people to it.

HB 966 Limits regulation of Conversion Therapy to protect "the fundamental right of an individual to select for himself, based on an informed and voluntary choice, a form of counseling that involves nothing more than 'talk therapy,' regardless of the age of the individual, including in situations where the patient is seeking such counseling to assist him in reducing or eliminating unwanted attractions or behaviors or concerns about gender identity."

DEAD (BY VARIOUS METHODS):

HB 291 Uniform Collaborative Law Act

HB 82 Spousal support to be based net income, not gross; earning capacity may no longer be considered when determining spousal or child support; spousal support shall not exceed payor's net income.

SB 502 When child support is paid through Department of Social Services, the Department must pay the recipient even if the payor does not pay.

HB 350 Requires courts in custody and visitation cases to "when appropriate, assure frequent and continuing contact with each parent"

HB 95 Decisions that a person is not in contempt of court can be appealed to the Court of Appeals.

HB 163 Contempt of court "summary punishment" -- increases max penalty to 30 days

SB 61 Using cannabidiol oil or THC-A oil on doctor's written advice shall no be the sole reason for denying or restricting custody, visitation, adoption or foster parenthood.

HB 40 Public schools must have mental health break spaces

SB 117 Day care operated in homes needs license if caring for three or more children (current law is five)

SB 76 No guns for people under any protective orders, not just those for family violence. But keeps 24 hour grace period to transfer guns.

SB 16 Assault firearms and certain firearm magazines; prohibiting sale, transport, etc., penalties.

SB 18 Firearms; restricting access under age 18, purchase under age 21

SB 75 Minors; allowing access to firearms, penalty.

HB 1001 Assault and battery against a family or household member; prior conviction, term of confinement.

SB 19 Records of marriages shall not require identification of race.

HB 930 Military service members' and veterans' spouses: expediting the issuance of professional credentials [Was incorporated into HB 967]

HB 926 Income tax, state; credit for employer contributions to Virginia College Savings Plan accounts.

 HB 158 Tax deduction for K-12 school tuition or home instruction expenses

SB 104 Vaccinations and immunizations; certain minors given authority to consent.

 SJ 2 Constitutional amendment; right to personal reproductive liberty

SB 21 Abortion; repeal of parental/judicial consent requirement for minors, and other restrictions (incorporated into SB733)

 


Governor approves 11 of 12 bills reforming family law, offers substitute for domestic violence bill

GOVERNOR PROPOSED SUBSTITUTE INSTEAD OF APPROVING:

SUBSTITUTE FOR:

  • HB 2042 Assault and battery against a family or household member; prior conviction; mandatory minimum term of confinement. Provides that upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of an offense that occurred within a period of 20 years of the instant offense against a family or household member of (i) assault and battery against a family or household member, (ii) malicious wounding or unlawful wounding, (iii) aggravated malicious wounding, (iv) malicious bodily injury by means of a substance, (v) strangulation, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses is guilty of a Class 1 misdemeanor and the sentence of such person shall include a mandatory minimum term of confinement of 60 days. Amended, PREVIOUSLY final version in Conference report.

 

APPROVED BY GOVERNOR:

  • HB 1945/SB 1541 No-fault divorce; waiver of service of process may be signed before suit filed. Clarifies that in the case of a no-fault divorce, waivers of service of process may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant. Where a defendant has waived service of process and, where applicable, notice, the bill further permits depositions to be taken, affidavits to be given, and all papers related to the divorce proceeding to be filed contemporaneously. Bill text as passed Senate and House.
  • SB 1144 Guardianship; annual report filed by guardian. Provides that, upon receiving notice from the local department of social services that a guardian has not filed the required annual report within the prescribed time limit, the court may issue a summons or rule to show cause why the guardian has failed to file such report.
  • SB 1307 Uniform Transfers to Minors Act; transfer of property; age 25. Permits a transferor to transfer property under the Uniform Transfers to Minors Act to an individual under the age of 21 to be paid, conveyed, or transferred to such individual upon his attaining 25 years of age, unless the minor attaining age 21 years of age delivers a written request therefor to the custodian. Under current law, such property must be paid, conveyed, or transferred upon the individual's attaining 18 years of age, or 21 years of age if specifically requested by the custodian.
  • SB 1186 Financial institution; payment or delivery of small asset by affidavit, check, etc. Provides that a financial institution accepting a small asset that is a check, draft, or other negotiable instrument presented by an affidavit is discharged from all claims for the amount accepted.
  • HB 1979 Assisted conception; amends statute to provide gender-neutral terminology, etc. Allows an unmarried individual to be an intended parent, paralleling the ability of an unmarried individual to adopt under the adoption statutes. Allows for the use of an embryo subject to the legal or contractual custody of an intended parent in a surrogacy arrangement. 
  • HB 1988 Military retirement benefits; marital share. Requires that the determination of military retirement benefits in a divorce be made in accordance with the federal Uniformed Services Former Spouses' Protection Act (10 U.S.C. 1408 et seq.).
  • HB 2059 Nonpayment of child support; amount of arrearage paid; time period to pay arrearage; repayment schedule; suspension of driver's license. Provides that an individual who is delinquent in child support payments or has failed to comply with a subpoena, summons, or warrant relating to paternity or child support proceedings is entitled to a judicial hearing if he makes a written request within 30 days from service of a notice of intent to suspend or renew his driver's license. Current law provides such an entitlement if such request is made within 10 days from such notice. The bill further allows the Department of Motor Vehicles to renew a driver's license or terminate a license suspension imposed on an individual if such individual has reached an agreement with the Department of Social Services to satisfy the child support payment delinquency within a 10-year period and has made at least one payment of at least five percent of the total delinquency or $600, whichever is less, as opposed to whichever is greater under current law, under such agreement. The bill further provides that, where such a repayment agreement has been entered into and such an individual has failed to comply with such agreement, the Department of Motor Vehicles shall suspend or refuse to renew such individual's driver's license until it has received certification from the Department of Social Services that such individual has entered into a subsequent agreement to pay within a period of seven years and has paid the lesser amount, as opposed to greater amount under current law, of at least one payment of $1,200 or seven percent, as opposed to five percent under current law, of the current delinquency. The bill provides that an individual who fails to comply with such a subsequent agreement may enter into a new agreement if such individual has made a payment in the lesser amount, as opposed to the greater amount under current law, of $1,800 or 10 percent, as opposed to five percent under current law, and agrees to a repayment schedule of not more than seven years, which is consistent with the timeframe provided by the current law. Amended text as passed House and Senate.
  • HB 2317 Custody and visitation orders; exchange of child; history of family abuse; law-enforcement officers. Provides that in custody and visitation cases, at the request of either party, the court may order that the exchange of a child take place at an appropriate meeting place. Amended  text as passed House and Senate.
  • HB 2542 Temporary delegation of parental or legal custodial powers; child-placing agency. Allows a parent or legal custodian of a minor to delegate to another person by a properly executed power of attorney any powers regarding care, custody, or property of the minor for a period not exceeding 180 days. The bill provides that a parent or legal custodian who is a service member, as defined in the bill, may delegate such powers for a period of longer than 180 days while on active duty service, but specifies that such a period is not to exceed such active duty service plus 30 days. The bill provides that any such power of attorney shall be signed by all persons with authority to make decisions concerning the child, the person to whom powers are delegated under the power of attorney, and a representative of a licensed child-placing agency that assists parents and legal guardians with the process of delegating parental and legal custodial powers of their children. The bill specifies that such licensed child-placing agency will be subject to background checks and must develop and implement written policies for certain services and provide staff and provider training. The bill further requires that any person to whom any such powers are delegated shall comply with background check requirements established by regulations of the Board of Social Services or otherwise provided by law.
  • HB 1944/SB 1542 Civil actions; determination of indigency.  In a no-fault divorce proceeding, a person who is a current recipient of a state or federally funded public assistance program for the indigent shall not be subject to fees and costs, and  shall certify to the receipt of such benefits under oath.  House substitute agreed to by Senate.
  • SB 1758 Specific findings of fact; Custody and visitation cases; jurisdiction of court. Allows a circuit or district court in which there is a proceeding related to the custody or visitation of a child, upon the request of any party, to make any finding of fact required by state or federal law to permit such minor to apply for a state or federal benefit. Passed with House subcommittee amendments and substitutesSenate amendments, Conference amendments.

Using marital contracts to stabilize marriages: past, present, and possible

 Über ehestablisierende Rechtstechniken

On Marriage-Stabilizing Legal Techniques

 

by Prof. Dr. Hans Hattenhauer

81px-Prof._Dr._Hans_Hattenhauer_(Kiel_77.824)
 
Christian-Albrechts-Universitaet zu Kiel,
Christian-Albrechts-University, City of Kiel

Zeitschrift fuer das gesamte Familienrecht (FamZ) 1989, page 225 et. seq.

Summary and Explanation by Antje S. Heinemann, J.D., with assistance by John Crouch, J.D., and Susan Winston, J.D. candidate, University of Miami School of Law

 

In this article Prof. Hattenhauer deals with the need to stabilize marriages and the legal instruments and techniques to do so.

As marriage is a lifelong relationship it is always endangered by its duration. Because of the changes of various circumstances such as society, the spouses’ financial situation and economic development/expansion etc., marriage has lost a lot of its functions and is therefore today even more deemed to be only a short-term rather than a long-term “operation”.

But how have humans in history of mankind been able to make marriages work as a long-term relationship and make this long-term relationship an ideal of a marriage? Knowing that trust of only biological/emotional forces and the spouses’ good will are not enough to make a marriage a “long-term operation”, former cultures have stabilized it with various techniques.

As Hattenhauer states that there is up to now hardly no fundamental scientific research on this issue, he limits his point of view in his article to marriage-stabilizing legal techniques. This makes him first think of some very general questions such as: What is society’s moral understanding and what is universally valid? What is the general social consensus that courts must respect? At what point is the jurisdiction exceeding its authority when it determines what the ideal of marriage?

To find answers he works with various theses:

Thesis 1:

Marriage is the foundation of family. Family is based on marriage and – at best – includes children. In contrast to this, any other model of a “family” such as homosexual cohabitation, a commune or heterosexual cohabitation without being married is not legally binding and it can therefore not achieve the same privileges as a marriage.

Thesis 2:

Marriage is an “enterprise for maintenance”. As society has changed into an industrial society and the welfare state has been established, marriage has lost a lot of its maintenance character and functions. However, it has never totally ceased to be an “enterprise for maintenance”, which is shown by the unbroken importance of support payments. This support for spouses and children will never be completely replaced by government.

Thesis 3:

In addition to this financial “maintenance”, marriages also give enormous personal and emotional support. This support is not replaceable at all. Today, this support is even more appreciated than ever before.

Thesis 4:

Up to now the maintenance character of marriage (both financial and emotional) has been obvious. After the long-term period of upbringing the children the period of growing old usually began. The parents then needed support and care-taking themselves.

But increased life expectancy, both parents’ working, and the social security system have created a completely new period between these two periods. During this phase the spouses are usually not aware of their mutual maintenance obligations and therefore the duration of marriage is weakened. As also sexual morality has changed, marriage has furthermore lost a lot of its sexual maintenance character.

Thesis 5:

The ecclesiastical sacrament of marriage has been replaced by the civil marriage. Today, marriage is legally understood as a contract.

Thesis 6:

Although we see today all these changes to the maintenance character of a marriage, there is still a huge private interest for stability in marriages. It is important for governmental authorities to assure a process of stabilization, as stable marriages ensure the people’s life quality.

Thesis 7:

People entering a marriage often have to make sacrifices such as giving up parts of their personal freedom or privacy. As some kind of compensation the state is giving them married privileges and protection by law. Art. 6 GG, (i.e. Grundgesetz, the German constitution) for example, protects family and marriage. To give the same bonuses to other, less legally binding, types of relationships won’t be justified. These bonuses are such as, but are not limited to, support, inheritance, child custody, and in case of dissolution of marriage, a system to solve conflicts as the law determines alimony, support, division of pension rights etc.

Thesis 8:

As, because of the great public interest in long-term marriages, smart states have developed certain marriage-stabilizing policies, they have laid down marriage and family in the constitution.

Thesis 9:

The history of occidental marriage has been the history of the privatization of marriage. Marriage has become more and more a subject of the couple’s dispositions. Today spouses can determine nearly everything regarding their marital relationship. Since spouses can do so, such agreements, their compliance and their enforcement, need protection by the government.

Thesis 10:

The process of privatization is neither irreversible nor deplorable. Privatization is justified as an act of liberation from governmental constraints.

Thesis 11:

After the breakdown of the middle-class model of marriage (after 1968) as the “moral monopoly,” we find today a pluralism of ideals of marriage. The question today is: What kind of law do we need in times of pluralism, which does justice to all models and groups? What kind of law does not impose too much stabilization to the ones not interested, and does not refuse to give stability to the ones who ask for it? How can the government take care of marriages and create a law that meets all interests? How does a catalog of acknowledged ideals of marriages look like?

In the history of marriage, the non-formal (regarding the entering and dissolution of marriage) Roman marriage, the “matrimonium liberum”, has been surprisingly durable. Alfred Soellner has stated that the reason for this stability was the use of a certain legal technique: the dowry, the “dos”. The dowry was the father-in-law’s contribution to the husband in a considerable amount of money to give the marriage a binding character. The marriage and the financial contribution were strictly connected. Conversely, only an endowed marriage was acknowledged as a valid marriage. A marriage without dowry instead was regarded as void.

The dowry was highly important to wives. It was so important that the father-in-law sometimes had to impose it on the husband. The financial contribution was also a matter of the wife’s reputation. A woman who was not endowed was contemptuous. If the family was poor, the daughter sometimes had to go to the brothel.

The purpose of the dowry was to stabilize the marriage: The profits made out of the financial contribution were used to maintain the family, especially during the first years. The ongoing sanctions in case of conflicts guaranteed the existence of the marriage. Both spouses had to take care of the marriage to be entitled to the benefits of the financial contribution. In case of adultery or filing a divorce, e.g., the wife lost all her entitlements for the return of the contribution in total. If the husband wanted to commit adultery or wanted to get divorced he had to be afraid of losing the dowry, which helped to keep him from doing so. It was also possible for the wife to determine a contractual penalty for the husband, which he had to pay if he had a concubine. In general one could say: He who wanted to give his wife back had to give the contribution back.

According to Hattenhauer this was the reason why marriages without dowry had always been more endangered by divorce than others, and why the Romans preferred marriages within one’s station. A poor wife could be easily rejected but in case of a high dowry the rejection always meant a bad loss. On the other hand, a marriage with a high dowry was sometimes quite difficult to handle for a poor husband, because then he had to endure the moods of his rich wife. Thus, the Romans found the ideal marriage where there was a dowry and the financial background had been equal.

 Hattenhauer then describes the marriage in the rabbinical-talmudical law and states that it was quite similar to the Roman model: Without a trousseau a woman was not allowed to marry. If necessary the money was taken from the community’s funds for the poor. In addition to that, there was also the dowry (which could be in property or money). The dowry always continued to be the property of the wife but was administrated by her husband, who often had a right of usufruct of it. The couples necessarily had to settle upon a marital agreement. Beside certain other agreements the spouses agreed about the “Ketubah”, which was the sometimes considerably high amount of money the husband had to pay in case of the dissolution of marriage (divorce or death). The amount had to be in accordance with a minimum sum and depended on the amount of the dowry. A marriage without a “Ketubah” was not completely valid and considered as a concubinage.

 Hattenhauer states that both dowry and “Ketubah” stabilized marriages. As the capital stock usually was invested in the husband’s enterprises, his cravings for divorce were reasonably minimized. On the other hand a mean wife, whose “Ketubah” had been high enough, could sometimes leave the husband desperate. To explain this dilemma Hattenhauer cites the case of Rabbi Nachman: He couldn’t get divorced from his mean wife because the “Ketubah” was too high, but his disciples finally collected the money to pay him off and gave him freedom.

The purpose of the “Ketubah” to stabilize marriages was clear: The rabbis created the “Ketubah” to make it more difficult for the husband to leave his wife.

Hattenhauer then examines the German model and states that the German law did not adopt the Roman model schematic. In the 17th – 19th century it was held that the common marital agreements in Germany didn’t comply with the narrow frame of the Roman “pacta dotalia” because they were not limited only to financial transactions. Up to the effective date of the BGB, (Bürgerliches Gesetzbuch, i.e. Civil Code), January 1900, the Germans and Europeans practiced marriage-stabilizing by using various kinds of marital agreements. They had various names, varieties, and a high practical importance. They had such names as pactum dotale, pactum nuptiale, Ehepakt, Ehegedinge, Ehestiftung, Eheberedung, and Brautlaufbrief.

A marital agreement was defined as any legal transaction that determines rights and obligations of spouses. The essence of those agreements was that there were personal and financial agreements at the same time. However, the financial settlements – the agreement about the husband’s or wife’s financial contribution to the marriage – predominated. Being an important financial source for the maintenance of the family, the assets were important to stabilize marriages. The husband administrated the estate and was liable for its continued existence. In these marital agreements the spouses could also agree about the husband making a contribution to the wife in return, or a security payment for the dowry.

Those types of marital agreements were not only settled between rustic, but also aristocratic, spouses.

Beside the above mentioned possible settlements the German marital agreement in these times above all also contained agreements about inheritance (wills or any other kind of inheritance transactions). The spouses, e.g., agreed about the future of financial contributions, reciprocal assigning, and provision for children. The husband also often agreed that his heirs had to support his wife after his death. Thus, marital agreements and agreements about inheritance went hand in hand. The variety of such agreements was enormous, especially in the area of non-codified law, where spouses had creative scope.

The personal decisions in marital agreement included mainly decisions about parenting, religion or an agreement about the place of residence. The custody often was transferred completely to the wife. The spouses also settled agreements about support and education of the children in case of their divorce or agreed about contractual penalties if for example one of them refused the performance of matrimony.

 Hattenhauer states that there are good grounds to consider the German model as a Christian model. In comparison between the Roman and Jewish model on one side and the Christian model on the other side you will find that the most important difference is that the church never stabilized marriages by using financial transactions. As the Christian model of marriage, the holy sacrament, can never be dissolved, and assets were not necessary to enter one, this model didn’t need financial transactions. In addition to that, social classes were not important at all, and even poor people or slaves could enter a marriage.

According to the Roman model the limits of contractual freedom only were the compulsory law and morality. The various effective laws in former times gave the spouses different kinds of creative freedom. The “Preussische Allgemeine Landrecht” from 1794 hardly contained hardly any regulation about marital agreements, but regulated everything regarding the marriage itself. The “Saechsische Buergerliche Gesetzbuch” from 1863/1865 regulated everything in great detail.

All those regulations described as what is today known as the principle of morality, § 138 BGB (Buergerliches Gesetzbuch, the German Civil Code). According to the institutional character of a marriage as an ideal in the 19th century, a marriage rather was a moral than a legal phenomenon. Morality was then the most important limit on the freedom of contracts. In those times it was therefore determined in a very detailed manner what kind of agreements were void because of immorality: any agreement in which the spouses:

- assigned the wife to the husband’s power

- waived matrimony, sexual intercourse and joint residency

- waived the obligation of reciprocal care-taking

- excluded any litigation regarding marriages

- took away the husband’s benefits from the wife’s financial contribution such as the dowry

- adjourned the maturity to make the dowry to a date after the dissolution of this marriage

- conceded the other spouse the right of adultery or criminal behaviour

- limited the husband’s liability to administrate the wife’s dowry

An agreement was also void when it deprived the surviving wife of her property and gave it to the husband’s relatives after his death. In those times, people nonetheless believed that the above-listed limits gave the spouses enough contractual freedom.

According to Hattenhauer the end of this type of marital agreements came with the creation and effective date of the BGB (Buergerliches Gesetzbuch, i.e. the German Civil Code) in January 1900. From that time on, a marital agreement was defined as a contract which only determines the system of marital property. It did not determine any other kind of financial or personal matters. The 1901 book of annotations, Planckscher Kommentar, stated that a marital agreement is a contract used by spouses to determine their system of marital property. On the negative side you can not understand it as a contract which determines personal matters such as the wife’s obligation to follow her husband or the decisions about parenting, etc. Whether such agreements are valid and can be enforced depends on their accordance with the nature of marriage and morality. However, such agreement is not a marital agreement pursuant to § 1432 BGB.

From that time on, people didn’t acknowledge agreements about any personal matters anymore, even if they had done so in a tradition of hundreds of years. According to Hattenhauer the annotation shows the skeptical understanding of the validity of such contracts very clearly, because it points out the fact that such contracts had to be in accordance with the nature of a marriage. Because the BGB was understood as defining the nature of marriage in those times, consequently every agreement about personal matters was void, because it differed from the model described in the BGB.

The annotation to the first draft of the BGB had the same understanding:

“The draft acknowledges the principle of contractual freedom. However, it also points out the limits of contractual freedom. An agreement can only be valid as long as is not in contradiction to the nature of marriage. Agreements about the regulations regarding the marital status of spouses such as e.g. their legal relationship are void in general because those regulations are the necessary essence of marital relationships.”

By citing Art. 199 EGBGB (Einfuehrungsgesetz zum BGB, the Introduction Act to the BGB) Hattenhauer reaches the conclusion that the German law in those times didn’t favor such marital agreements anymore:

“The personal relations between spouses, especially their obligation to pay support, are determined by the regulations of the BGB, even if they concern a marriage before the effective date of BGB.”

Hattenhauer believes that the purpose of this was to eliminate agreements regarding personal matters in general. In his opinion, therefore, The Marital Agreement by Albert von Baldigands (1906) was a fundamental book which pointed out that such agreements are no longer marital agreements.

Regarding this new legal understanding of marital agreements Hattenhauer cites two cases:

In 1900 a court had to decide about an agreement in which the husband agreed to have his place of residence at the wife’s land property, and promised to cultivate the land. The wife sued the husband, and the court held that she had no right to demand performance of the agreement, because only the husband had the right to decide about the place of residency (pursuant to § 1354 BGB). It was also held that even if the agreement had been valid until the effective date of the BGB, it had become void.

In 1905 the courts had to decide again about a marital agreement made before the effective date of the BGB. In this case the husband had waived his right to administrate the wife’s estate, and had waived his right to use it. In consideration of this, the wife had waived her right to receive support from her husband. The court held that a contractual waiver regarding support is void and that it did not make a difference if the wife’s waiver was made freely or not.

From that time on it was case law, and the annotations stated, that all agreements about personal matters were void. They were not in accordance with the nature of marriage.

Hattenhauer says that one reason for this change in opinion about marital agreements and the mistrust against them might lie in the effort to create a uniform/homogeneous family and inheritance law. He argues that the authors of the BGB were proud that they had limited the former variety of 100 systems of marital property to only five. He therefore reaches the conclusion that it was only reasonable that nobody wanted to destroy this success and give the spouses their contractual freedom back.

The authors of the BGB were also convinced that they had created marriage as a “timeless and exhaustive institution,” and that they had created a truly moral model of marriage with equal rights for wife and husband by upholding the traditional roles. This middle class model of marriage was regarded as exclusive. As marriage and family were the cornerstones of the middle class, Hattenhauer believes that this was the reason why the middle class didn’t want to make any concessions for the benefit of the spouses’ individual liberty, and the demand for contractual freedom only led to mistrust.

However, in this new model of marriage the husband still had to be afraid of losing assets by leaving his wife. The new system was still able to stabilize a marriage because of the continued existence of a very traditional social order and the principle of marrying within one’s station.

Hattenhauer believes that this legislation would have been useless if the people’s understanding of marital obligations of spouses had not been generally shared. He also believes that the model was secured by society’s morality. He states that even socialists had the same opinion about sexuality, marriage, family etc. in those times. So he reaches the conclusion that the general moral understanding helped to make the courts find every agreement differing from the BGB void because of immorality.

According to Hattenhauer the acknowledgement of this model of marriage was also supported by society’s unbroken trust in their assets. It was e.g. not immoral if the fathers-in-law sat down and started calculating the amount of the assets while the spouses just enjoyed their love. But only after two decades, in the 1920s, the trust in the assets, and the assets themselves, were melted away by inflation, so marriage-stabilizing couldn’t be achieved by financial contributions anymore. Society was forced to look for new stabilizing techniques.

Hattenhauer states that from this time on a new “asset” for a wife to bring into the marriage was a solid vocational training, as a form of social security. People believed that this asset could not melt away even in times of inflation. The fact that both spouses were working turned out to be a stabilizing factor for marriage, especially regarding its psychological balance. Besides her dowry her vocational training now gave the wife stability even if she gave up her profession to become a housewife. However, even then, stability was still achieved by society’s constraints and traditional case law.

Hattenhauer then describes the current status quo:

- marriage has lost its protection by law

- middle-class morality has lost its general prestige

- the number of divorces and the number of children of divorce who are skeptical of marriage have increased

- the model of an “emancipatory marriage” has replaced the middle-class model of marriage

- the stabilizing legal techniques such as “Zugewinn- and Versorgungsausgleich” (equitable distribution including property and pensions) can be abolished by marital agreements

- the loss of faith and trust in marriage made the concubinage more attractive

- the loss of the husband’s responsibility for the wife’s social security (because of her ability to work) has increased the marriage-age of wives, reduced the number of children born into the marriage, and increased the number of disabled children.

According to Hattenhauer the traditional middle-class model of marriage has no binding character anymore and the “emancipatory model” of marriage is a fad without a function. He believes that this pluralism of models cannot be resolved by giving one of them priority, and that the role of the law is reduced to setting only the frameworks for what might be binding and what might not.

Today, there are various answers regarding the question of what is legally binding, or what is the nature of marriage and therefore is protected by the Code’s principle of morality (§ 138 BGB). Prof. Gernhuber, e.g., names various principles which he thinks are binding:

“[1] The principle to be free to enter a marriage, [2] that spouses make a contract by entering a marriage, [3] the principle of monogamy, [4] that marriage can only be between a woman and a man, [5] the spouses’ obligation to live in matrimony, [6]  that marriage can only be dissolved by death.”

Hattenhauer asks what kind of legal techniques we need in our changed society today, if we see those principles as binding? As the traditional pre-1900 marital agreement, varying the standard obligations of marriage, is back and practiced again, he believes that it can be used as a stabilizing legal technique. The determination of personal and financial matters in those agreements can help to give marriages a more binding character than the law itself does. Hattenhauer states that the creation of various types of such marital agreements has already begun and will continue. Those new marital agreements still find their limits of contractual freedom in illegality (§ 134 BGB) and morality (§ 138 BGB).

Looking at spouses’ considerations as they enter a marital agreement, you will find that hardly anybody has considered it as a stabilizing factor. You will also find that people haven’t paid much attention yet to agreeing on personal matters, nor to agreeing about certain personal sanctions, in a marital agreement, in contrast to financial matters and financial sanctions. According to Hattenhauer the demand for individualized agreements and regulations is especially high. He states that personal matters included in agreements can be: the decision to have children and their raising, the decision who works and who does the household work, the place of residence, the things you do in your leisure time, holidays, relationships with relatives and in-laws, religious decisions, decisions about the procedure to solve conflicts or problems, etc. As each of his listed personal matters can cause a conflict and might destroy a marriage if it cannot be solved, he argues, spouses should agree in a marital agreement about those personal matters and should therefore also agree about sanctions to avoid conflicts and the dissolution of the marriage.

As the regulations in the BGB regarding divorce, and high costs, do not deter spouses from the decision to get divorced, Hattenhauer thinks that it might aid the stabilization of marriages if spouses could agree to limit their right to get divorced. He states that any useful suggestions on this are still missing, and people miss the mark by only agreeing about financial sanctions. Prof. Langenfeld suggested having different systems regarding the financial consequences of ending a marriage, distinguishing between ending because of divorce and ending because of death.

Even the BGH (Supreme Court) had already to decide about the use of assets for the purpose of marriage-stabilizing. A marriage entered in 1976 in a mosque in Munich between Islamic spouses included an agreement about a payment in the amount of 100.000 DM in case of getting divorced. The BGH held that the agreement is valid under the freedom of contract. Thus, it was held that agreeing about financial sanctions in case of divorce is valid. It was also held that this was not a contract about the system of marital property, and therefore it did not have to be in one specific form (such as for example under § 1410 BGB).

But no courage to make such decisions on personal matters can be found yet.  Hattenhauer asks why we go about this complicated detour by using only financial sanctions to encourage the continued existence of marriage. Don’t we exclude from the opportunity of contractual stabilizing those spouses who don’t have considerable assets to lose? Why isn’t it possible to let all couples stabilize their marriages by using clear and formulated clauses? He hopes that the lawyers will improve upon this opportunity.

Then he comes back to his contested thesis about the possibility to waive the right to get divorced. First of all he states six theses:

  1. Agreements regarding personal matters are valid and find their limits in the general limits of privatization in civil law.
  2. A limitation or waiver of the right to get divorced is valid because it is not prohibited by law nor immoral or unconstitutional.
  3. Agreements about arbitration and any other models for solving conflicts are valid and legal
  4. Although entering or leaving a marriage has to comply with a certain form, agreements limiting the ability to get divorced do not.
  5. An agreed limit on the ability to get divorced can be revoked by agreement at any time.
  6. A court should determine the immorality of an objection regarding the waiver of the right to get divorced in a trial, in which the invalidity of the agreement has to be proved by the petitioner.

The train of thought is again, for example:

Wife and husband, both Catholics, want to get married and want their religion to become legally effective (in addition to the official governmental ceremony). Using Privatization in order to express their religious beliefs, the couple creates a marital agreement that they will not get divorced. In addition the agreement states that any litigation of marital issues will be decided by means of arbitration and the arbitrator shall be an ecclesiastical judge.

If the spouses then get into conflict there are two choices: Both agree to change the marital agreement, revoke their waiver and both can move the court for a conventional divorce. That means that nobody can jump out of the marriage hastily.  If the other spouse refuses to agree about the change of the marital agreement the spouse will then move the court to decide. But the Respondent can make the objection that the court has no jurisdiction because of the agreed clause regarding arbitration. If the respondent moves to the court of arbitration, he or she will be forced to find a mediated solution. If there is no arbitrated solution the arbitrator will dismiss the motion to get divorced because of the agreed waiver. The Petitioner can appeal by citing § 1041 Nr. 2 ZPO and proving the immorality of the Respondent’s objection regarding the waiver. Finally, the way out of a marriage should never be absolutely excluded as the last solution, but the way out should be restricted. This complies with the principle of tolerance and pluralism.

It is now necessary to show what sort of model of marriage will be more successful. In open concurrence to the already existing variety of dangerous and insecure models of concubinages, we will have a variety of secure marital agreements in which the demand for stability and the waiver of the right to get divorced will find their place. It will be personal self-fulfillment instead of being kept in leading strings by the government: In dubio pro libertate! [Meaning, in all cases that are in doubt, rule in favor of freedom. In English law, stated as “in statu dubio semper erit pro libertate iudicandum”. Bracton, f. 191 b]


Living trusts now automatically revised (not revoked) by divorce suits

Under HB 746, which became law July 1, transfers to a revocable living trust for the benefit of a spouse are revoked by a divorce or annulment. The trust is not revoked, just those transfers or benefits are.

The filing of a suit for divorce, annulment or separate maintenance does not revoke the transfers or benefits, but it does revoke any powers granted by the trust, such as a power of appointment (i.e., power to determine who else will get certain property), or the ability to serve as trustee or any other "fiduciary", such as trust director, advisor, guardian or conservator.

Code§ 64.2-412. D. Unless the trust instrument expressly provides otherwise, if a settlor creates a revocable trust and if, after such creation:

1. The settlor is divorced from the bond of matrimony or the settlor's marriage is annulled and the trust was revocable immediately before the divorce or annulment, then a provision of such revocable trust transferring property to or conferring any beneficial interest on the settlor's former spouse is revoked upon the divorce or the annulment of the settlor's marriage, and such property or beneficial interest shall be administered as if the former spouse failed to survive the divorce or annulment; or

2. An action is filed (i) for the divorce or annulment of the settlor's marriage to the settlor's spouse or for their legal separation or (ii) by either the settlor or the settlor's spouse for separate maintenance from the other, and the trust was revocable at the time of the filing, then a provision of such revocable trust conferring a power, including a power of appointment, on the spouse or nominating or appointing the spouse as a fiduciary, including trustee, trust director, conservator, or guardian, is revoked upon the filing, and such provision shall be interpreted as if the former spouse failed to survive the filing.

From H 746, Approved February 26, 2018


Forbes & "Above the Law" get one wrong -- there's no tax on divorce settlements

"Examples of settlements facing tax on 100% include recoveries ... from your ex-spouse for claims related to your divorce or children," tax lawyer Robert Wood wrote in Forbes recently. "Defamation, financial fraud, divorce, malpractice, false imprisonment — clients will be paying taxes on 100 percent of their recovery on all of these." --  Joe Patrice blogged at Above the Law. 

Nope. What you get in a divorce is not taxable as income, and that is absolutely unchanged in the new tax act. Tax Code Sections 102 and 1041 ensure that. They do so by treating a divorce settlement as a "gift", which is mostly wrong, archaic, and insulting to women, but it gets the job done. As the IRS's guide to all things divorce-related, Publication 504, puts it, 

"Property you receive from your spouse (or former spouse, if the transfer is incident to your divorce) is treated as acquired by gift for income tax purposes. Its value isn’t taxable to you."

The latest edition of Publication 504 is from before the 2017 tax reforms, but again, the relevant parts of tax law weren't changed at all.

New Tax On Lawsuit Settlements -- Legal Fees Can't Be Deducted

By Robert W. Wood in Forbes

Tax Law’s Latest Victims: Our Clients

 


New Virginia joint custody law probably changes nothing -- except maybe hearts and minds and expectations

"When parents split, new Virginia law will make it easier to get joint custody," Saleen Martin writes in the Virginian-Pilot. Looking at what the final version of the bill actually contains, I just don't see how it changes anything. But it is nice to think so, and if articles like Martin's change the public's idea of what is in the normal range, that can eventually affect litigants' and judges' attitudes, which already have changed a lot in that direction in the 22 years I've practiced.

The language added to the Code 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 original language of the proposal actually had some meat in it: "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."

For a real joint-custody reform, look at what Kentucky just enacted: 

"There shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare."

 


Kentucky enacts 50-50 custody presumption

"There shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare." ...

"When determining or modifying a custody order pursuant to Section 1, 2, or 4 of this Act, the court shall consider the safety and well-being of the parties and of the children. If domestic violence and abuse as defined in KRS 403.720 is alleged, and the court finds that it has been committed by one (1) of the parties against another party or a child of the parties within three (3) years immediately preceding the custody hearing in question, the court shall not presume that joint custody and equally shared parenting time is in the best interest of the child."

HB 528, recently signed by Kentucky's governor. There are other provisions, but those are the wholly new and most important ones.

Full text of bill and amendments

h/t Larry Gaughan, Creative Divorce Network


Think family court is a big racket? You're not alone ... until you get to court. Then you truly are.

One of those crank lawsuits of a kind that gets filed and discarded every day has, for once, gotten big coverage in a mainstream newspaper. "Lawsuit claims divorce court is a racket: Dismissed at district level, case is being appealed to 9th Circuit". San Diego Union-Tribune

If you polled people on the street, you'd find that to be a pretty common view, perhaps not a majority but a plurality of the same kind that makes the presidential primaries so interesting. But in the family court system, people who have cases there, and start saying things like that, are treated like the lunatic fringe. To the judges and everyone else involved, the issue is no longer whatever substantive question was originally in dispute. The issue is now the disgruntled litigants' extremism and behavior.  They are sometimes put under special orders keeping them from filing anything unless and until a single, permanently-designated judge has reviewed it and allowed it.

These litigants too often put their "last stands" on principle ahead of their actual parenting of their children. They are unwilling to bow and bend to a system they see as illegitimate and corrupt, even if they understand that that is the way to be treated better and get more time with their children.

Is the system a racket? No. Not where I work, anyway. But it doesn't have to be. It still works in a way that looks irrational to most people. It still takes people, some already cranky, and some fairly normal, perhaps even too nice, processes them, and cranks out a huge number of cranks.

When our state legislators and all those of us who help mold our culture, all the "second-hand dealers in ideas," as Hayek called us, decided decades ago to encourage widespread divorce, this was a major part of what we created. 

Americans are not brought up and educated in how a family court system works. In the courts which we learn about on TV and in civics class, a jury of 12 average local people makes the big decisions, and the judge is just a referee. And those decisions are about who did something wrong and who gets punished.

Parents who have chosen divorce or unwed parenthood, or had it thrust upon them, have no idea that instead of that system, they are going into a system where regardless of fault or faultlessness, a judge will tell them in great detail how to live and move and raise their children, now and forever until they all are grown. Nor that instead of one big trial to establish guilt or innocence and resolve everything, they may be back in court every few weeks, months or years, for enforcement, monitoring, and revision of those orders.

In that way, the family law courts work like the ecclesiastical and chancery courts that used to handle family issues, the ones that Dickens savaged in novels like Bleak House. And for good reasons, because a family is not like a business contract or a car accident.

But they also feature the most delaying, expensive, and inflammatory features of the American legal system, because this is America -- you always have the right to your day in court, to litigate about everything, to insist on strict compliance with the rules of evidence -- even when dealing with areas of life where people don't generally keep the relevant evidence, or where no witnesses are there when the really important stuff happens, or where evidence and testimony are easily faked. You can always appeal, and appeal. You have to go through all the expensive, exhausting procedures that were designed for big business litigation. Your lawyers have the ethical duty to do what you say you want, after doing their ethical duty to advise you about a bewildering array of awful things that you could do to your ex and your ex might even now be doing to you. And each of these individual things is necessary and proper, as part of the greatest legal system in the world. Even if you hate to comply with them and hate it when the other side does those things, you want the other side to comply and you want to be able to do those things to them.

That's the system we put far more families into when we tried to make divorce easier and more humane by enacting quick, unilateral, no-fault divorce, letting far more people jump straight into court without first working things out in an agreement.


Pros and cons of one-year vs. two-year separation period for contested divorce litigation -- a divorce lawyer reflects

At the end of 2017, couples began to be affected by Pennsylvania's the new divorce law, which cut the living-apart period before filing contested no-fault divorce litigation, without mutual consent and without all the financial and child-related issues worked out, from two years to one year. Carolyn R. Mirabile, a partner and family law group head at Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., looks back at what seemed to have worked better under the old law, and what improvements she hopes for from the new law. 

One Year Later On the One-Year Separation

By Carolyn R. Mirabile in The Intelligencer - Mar 15, 2018


Utah lawmakers boost premarital education but abolish family courts, conciliation, counseling; cut divorce wait period by 2/3

Marriage and Family Courts Blog:

 

New Utah law gives marriage license discount for premarital education or counseling; marriage commission to publicize couples' options

 

Utah legislation would abolish family courts, counseling and conciliation, cut divorce wait period by 2/3