The Family Law News Blog

2022 Virginia Legislation Affecting Family Law and Practice: Prepare to be "Aquamated."

By John Wettach and John Crouch

Updated 3/10/22

PASSED BOTH HOUSES

Adoption

HB 869 Adoption. Allows a circuit court, upon consideration of a petition for adoption, to immediately enter an interlocutory order referring the case to a child-placing agency to conduct a visitation instead of entering an order of reference referring the case to a child-placing agency for investigation and makes other amendments to accommodate for and bolster this change. The bill allows petitions for adoption submitted by the persons listed as the child's parents on his birth certificate to be filed and granted under the provisions governing stepparent adoptions. The bill prohibits putative fathers from registering with the Virginia Birth Father Registry regarding a child whose adoption has been finalized and in certain other instances set forth in the bill and allows written notice of an adoption plan to be sent to a putative father by express mail with proof of delivery in addition to delivery by personal service or certified mailing as in current law.

Child Abuse/Foster Care

CB 396 Foster care placements; court review; best interests of the child. Provides that the court has the authority to review and approve or deny a foster care plan filed by a local board of social services. The bill requires a foster care plan to assess the stability of proposed placements, the services provided or plans for services to be provided to address placement instability, and a description of other placements that were considered for the child. The bill codifies the factors to be considered when determining the best interests of a child for the purposes of developing foster care plans. The bill also (i) requests that the Committee on District Courts study child dependency hearings in the Juvenile and Domestic Relations District Court system and make recommendations to the General Assembly as to whether a separate docket or court would result in better service to children and families involved in child dependency hearings and other family law matters and (ii) directs the Office of the Children's Ombudsman to convene a work group to consider issues relating to the Commonwealth's model of court-appointed legal counsel in child dependency cases.

HB 1334 Child abuse and neglect; valid complaint. Amends the definition of "abused or neglected child" to include a child who is sexually exploited or abused by an intimate partner of the child's parent or caretaker and allows a complaint of child abuse or neglect to be deemed valid by a local department of social services (local department) in such instances. The bill allows a complaint of child abuse or neglect that alleges child trafficking to be deemed valid regardless of who the alleged abuser is or whether the alleged abuser has been identified. The bill requires a local department that receives a complaint or report of child abuse or neglect over which it does not have jurisdiction to forward such complaint or report to the appropriate local department, if the local department that does have jurisdiction is located in the Commonwealth.

Child Support

SB 455 Calculation of gross income for determination of child support; rental income. Provides that for the calculation of gross income for the purposes of determining child support, rental income shall be subject to the deduction of reasonable expenses. The bill further provides that the party claiming any such deduction has the burden of proof to establish such expenses by a preponderance of the evidence. This bill is in response to Ellis v. Sutton-Ellis, Va. App. No. 0710-20-1 (June 22, 2021).

SB 348 Support orders; retroactivity; arrearages; party's incarceration. Makes various changes to provisions of law related to child and spousal support orders, including (i) providing that in cases in which jurisdiction over child support or spousal support has been divested from the juvenile and domestic relations district court and no final support order has been entered, any award for child support or spousal support in the circuit court shall be retroactive to the date on which the proceeding was commenced by the filing of the action in the juvenile and domestic relations district court and (ii) specifying that prejudgment interest on child support should be retroactive to the date of filing. The bill provides that a party's incarceration alone for 180 or more consecutive days shall not ordinarily be deemed voluntary unemployment or underemployment for the purposes of calculating child support and imputing income for such calculation. The bill further provides that a party's incarceration for 180 or more days shall be a material change of circumstances upon which a modification of a child support order may be based. The provisions of the bill related to imputation of income apply only to petitions for child support and petitions for a modification of a child support order commenced on or after July 1, 2022, and do not create a material change in circumstances for the purposes of modifying a child support order if a parent was incarcerated prior to July 1, 2022, and the incarcerated party cannot establish a material change in circumstances other than incarceration.

Criminal

HB 228 Department of Juvenile Justice; juvenile boot camps. Eliminates the authority of the Department of Juvenile Justice to establish juvenile boot camps and the ability of a court to order a juvenile adjudicated delinquent to attend such a boot camp.

Domestic Violence/Protective Orders

HB 749 Virginia Sexual and Domestic Violence Victim Fund; purpose; fee apportionment. Provides that the Department of Criminal Justice Services shall adopt guidelines to make funds from the Virginia Sexual and Domestic Violence Victim Fund, which is used to support the prosecution of domestic violence cases and victim services, available to sexual assault service providers and hospitals for the purpose of funding the cost of salaries and equipment for sexual assault forensic examiners, sexual assault nurse examiners, and pediatric sexual assault nurse examiners, with priority for funding such costs given to such forensic examiners and nurse examiners serving rural or underserved areas of the Commonwealth. The bill also increases the amount apportioned to the Fund from the fixed fees for misdemeanors and traffic infractions tried in district court.

Elder Law/Wills/Trusts/Probate

SB 687 Abuse and neglect; financial exploitation; incapacitated adults; penalties. Changes the term "incapacitated adult" to "vulnerable adult" for the purposes of the crime of abuse and neglect of such adults and defines "vulnerable adult" as any person 18 years of age or older who is impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, or other causes, including age, to the extent the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable decisions concerning his well-being or has one or more limitations that substantially impair the adult's ability to independently provide for his daily needs or safeguard his person, property, or legal interests. The bill also changes the term "person with mental incapacity" to the same meaning of "vulnerable adult" for the purposes of the crime of financial exploitation. As introduced, the bill was a recommendation of the Virginia Criminal Justice Conference. The bill incorporates SB 126. 

SB 389 Support of parents by child; repeal. Repeals the provision of the Code of Virginia requiring an adult child to assist in providing for the support and maintenance of his or her parent, when such parent requires assistance. Under current law, failure to comply with this provision is punishable as a misdemeanor with a fine not exceeding $500 or imprisonment in jail for a period not exceeding 12 months or both.

SB 124 Misuse of power of attorney; financial exploitation; incapacitated adults; penalty. Makes it a Class 1 misdemeanor for an agent under a power of attorney who knowingly or intentionally engages in financial exploitation of an incapacitated adult who is the principal of that agent. The bill also provides that the agent's authority terminates upon such conviction. As introduced, this bill was a recommendation of the Virginia Criminal Justice Conference. This bill incorporates SB 10 and SB 690.

HB 1066 Notice of probate; exception to notice. Removes the exception to the notice of probate under current law that allows such notice to not be given when assets passing under a will or in intestacy do not exceed $5,000.

SB 129 Definitions; cremate; crematory; alkaline hydrolysis. Expands the definition of "cremate" to include reducing a dead human body to ashes and bone fragments through alkaline hydrolysis, a water-based process of dissolution using alkaline chemicals and agitation known as aquamation. The bill adds "aquamator" as an additional term for the existing definition of "cremator." The bill also adds "aquatorium" as an additional term for the existing definition of "crematory" or "crematorium" and amends the definition to include a facility containing a pressure vessel. Under current law, "cremate" means to reduce a dead human body to ashes and bone fragments by the action of fire, and "crematory" or "crematorium" means a facility containing a furnace for cremation of dead human bodies.

HB 623 Guardianship and conservatorship; duties of the guardian ad litem; report contents. Adds to the duty of a guardian ad litem appointed to represent the interests of a respondent in a guardianship or conservatorship case the requirement to recommend that counsel be appointed to represent such respondent upon the respondent's request. Under current law, the guardian ad litem is required to recommend counsel be appointed only when he believes appointment is necessary. The bill further directs the guardian ad litem to include in his report to the court an explanation by the guardian ad litem as to any (i) decision not to recommend the appointment of counsel for the respondent, (ii) determination that a less restrictive alternative to guardianship or conservatorship is not available, and (iii) determination that appointment of a limited guardian or conservator is not appropriate.

HB 634 Guardianship; duties of guardian; visitation requirements. Requires a guardian to visit an incapacitated person at least once every 90 days and make certain observations and assessments during each visit. The bill provides that a guardian may utilize a person who is directly employed and supervised by the guardian, or contract the services of a care manager who is a trained professional who specializes in the field of life-care management, geriatrics, older adults and aging or adults with disabilities and who provides written reports to the guardian regarding any such visits to satisfy the duties imposed upon such a guardian. 

Evidence

HB 734 Virginia Freedom of Information Act; disclosure of certain criminal records. Limits FOIA access to records of closed criminal investigations. Amended during the process; here is what passed both houses via a conference committee.  The widest exception to the restrictions is for "an attorney who provides a sworn declaration that the attorney has been retained by an individual for purposes of pursuing a civil or criminal action and has a good faith basis to believe that the records being requested are material to such action."

HB 1145 Civil actions; health care bills and records. Defines the term "bill" for the purposes of evidence of medical services provided in certain civil actions as a summary of charges, an invoice, or any other form prepared by the health care provider or its third-party bill administrator identifying the costs of health care services provided. The bill also clarifies the procedures for introducing evidence of medical reports, statements, or records of a health care provider by affidavit in general district court.

Health Care / Minors

HB 1359 Health care; consent to services and disclosure of records. Eliminates authority of a minor to consent to medical or health services needed in the case of outpatient care, treatment, or rehabilitation for medical illness or emotional disturbance and the disclosure of medical records related thereto. The bill also provides that an authorization for the disclosure of health records shall remain in effect until such time as it is revoked in writing to the person in possession of the health record subject to the authorization; shall include authorization for the release of all health records of the person created by the health care entity to whom permission to release health records was granted from the date on which the authorization was executed; and shall include authorization for the person named in the authorization to assist the person who is the subject of the health record in accessing health care services, including scheduling appointments for the person who is the subject of the health record and attending appointments together with the person who is the subject of the health record. The bill also provides that every health care provider shall make health records of a patient available to any person designated by a patient in an authorization to release medical records and that a health care provider shall allow a person to make an appointment for medical services on behalf of another person, regardless of whether the other person has executed an authorization to release medical records, provided that such health care provider shall not release protected health information to the person making the appointment for medical services on behalf of another person unless such person has executed an authorization to release medical records to the person making the appointment.

Judges

HJ 152 Election of Court of Appeals of Virginia Judges, Circuit Court Judges, General District Court Judges, Juvenile and Domestic Relations District Court Judges, and a member of the Virginia Workers' Compensation Commission.

SB 6 Maximum number of judges in each judicial circuit. Increases from six to seven the maximum number of authorized judges in the Thirty-first Judicial Circuit (Prince William County/Manassas/Manassas Park). This bill is a recommendation of the Judicial Council of Virginia.

SB 106 Retired circuit and district court judges under recall; evaluation; qualification by the Senate Committee on the Judiciary and the House Committee for Courts of Justice. Requires that retired district court judges sitting as substitutes be found qualified every three years by the Senate Committee on the Judiciary and House Committee for Courts of Justice instead of authorized by the Chief Justice of the Supreme Court of Virginia. The bill also requires the Office of the Executive Secretary of the Supreme Court of Virginia to prepare and distribute an evaluation form for each circuit and district court retired judge who has requested to be called upon to sit in recall during his final year of the three-year period following qualification. The bill further requires that the Office of the Executive Secretary of the Supreme Court of Virginia annually prepare and transmit a report including such evaluations conducted that year to the Senate Committee on the Judiciary and the House Committee for Courts of Justice by the first day of the next regular session of the General Assembly.

Lawyer Ethics and Discipline

HB 117 Attorneys; examinations and issuance of licenses; requirements. Requires, before an applicant is permitted to take the Virginia bar exam, that the applicant furnish to the Board of Bar Examiners satisfactory evidence that he has satisfactorily completed legal studies amounting to at least five semesters, or the equivalent of at least five semesters on a system other than a semester system, of full-time study at a law school approved by the American Bar Association or the Board of Bar Examiners. Under current law, an applicant is required to have completed all degree requirements of such law school.

Mental Health

HB 242 Practice of licensed professional counselors. Adds licensed professional counselors to the list of eligible providers who can disclose or recommend the withholding of patient records, face a malpractice review panel, and provide recommendations on involuntary temporary detention orders.

Real Estate

SB 498 Conveyances of property; acceptance by clerk's office for recordation. Provides that there is a presumption for state and local governmental agency and office purposes that title to property transfers to the grantee upon acceptance of a deed conveying such property by the clerk of court in the county or city in which the property is located. Such presumption does not apply to matters litigated in the federal or state courts.

Retirement 

SB 349 Division of marital property; Virginia Retirement System managed defined contribution plan; calculation of gains and losses.  Provides that if the court enters an order to distribute any Virginia Retirement System managed defined contribution plan, the Virginia Retirement System shall, if ordered by the court, calculate gains and losses from the valuation date through the date of distribution of the benefits.

 

DEAD (BY VARIOUS METHODS AND EUPHEMISMS):

Custody/Parenting Time

HB 856 Child custody, visitation, and placement; best interests of the child. Requires consideration of a child's attachment to a parent or guardian when determining the best interests of the child. The bill defines "attachment" as an aspect of the child's relationship with a parent or guardian that promotes the child's use of the parent or guardian as a secure base from which to explore, learn, and relate and to feel value, security, comfort, familiarity, and continuity.

SB 113 Custody and visitation; grandparents; mediation. Requires any case in which a grandparent petitions the court for custody or visitation of a minor grandchild to be referred by the court to mediation. The bill requires the petitioning party to pay the fee of the mediator.

HB 365 Parenting Coordinator Act. Creates the Parenting Coordinator Act, which provides a framework for the use of a parenting coordinator in actions for divorce, separate maintenance, or annulment in which custody or visitation is in issue, petitions for custody or visitation, and written agreements between parties and parenting coordinators. The Act governs the qualifications, scope of authority, appointment and removal, confidentiality, communication, records maintenance, and fees of such parenting coordinators.

SB 114 Visitation; petition of grandparent. Requires the court, in petitions for visitation filed by the grandparent of a child where either (i) the parent is the grandparent's child and is deceased, incarcerated, or incapacitated, or has had his parental rights terminated or (ii) the grandparent has an established relationship with the child and has provided a significant level of care for the child, to consider the following factors: (a) the historical relationship between the grandparent and child, (b) the motivation of the grandparent in seeking visitation, (c) the motivation of the living parent in denying visitation to the grandparent, (d) the quantity of time requested and the effect it will have on the child's daily activities, and (e) the benefits of maintaining a relationship with the extended family of the deceased parent.

Child Support

HB 1058 Interest on child support arrearages. Provides that no interest shall accrue on arrearages for child support obligations when the order for such support was entered on or after July 1, 2022.

HB 136 Wrongful death; death of the parent or guardian of a child resulting from driving under the influence; child support. Provides that any action for death by wrongful act where the defendant, as a result of driving a motor vehicle or operating a watercraft under the influence, unintentionally caused the death of another person who was the parent or legal guardian of a child, the person who has custody of such child may petition the court to order that the defendant pay child support.

HB 1077 Paternity; genetic tests to determine parentage; relief from paternity; certain actions; penalty. Provides that any person who knowingly gives any false information or makes any false statements for the purpose of determining paternity is guilty of a Class 6 felony. The bill further requires an alleged father of a child be informed of his option to request the administering of a genetic test prior to being entered as the father on a birth certificate. The bill further states that, in addition to any other available legal relief, an individual relieved of paternity who previously paid support pursuant to a child support order entered in conjunction with the set-aside paternity determination may file an action against the other party for repayment of any such support.

Child Abuse / Neglect

SB 412 Termination of parental rights; murder of child. Requires the court to terminate the parental rights of a parent upon finding, based upon clear and convincing evidence, that termination of parental rights is in the best interests of the child and that the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, and the victim of the offense was the child of the parent over whom parental rights would be terminated. The bill also requires local boards of social services to file a petition to terminate parental rights in such instances.

Divorce

HB 1351 Grounds for divorce; cruelty, abuse, desertion, or abandonment; waiting period. Eliminates the one-year waiting period for being decreed a divorce on the grounds of cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.

Retirement

SB 418 Division of marital property; military retainer pay. Provides that, for the purposes of dividing marital property, military retainer pay shall be classified as separate property.

Domestic Violence / Sexual Assault

HB 359 Termination of parental rights of person who committed sexual assault; clear and convincing evidence standard. Provides that the parental rights of a person who has been found by a clear and convincing evidence standard to have committed rape, carnal knowledge, or incest, which act resulted in the conception of a child, may be terminated without the need for the person to have been charged with or convicted of such offense. The bill further provides that the consent of a person found to have committed such an offense is not necessary for the validity of an adoption of such a child.

HB 475 Protective orders; petition; human trafficking and sex trafficking; penalty. Adds to the definitions of "family abuse" and "act of violence, force, or threat" used in the protective order provisions that acts of violence, force, or threat include acts in furtherance of human trafficking or commercial sex trafficking. The bill also allows a minor to petition for a protective order on his own behalf without the consent of a parent or guardian and without doing so by next friend.

HB 713 Family abuse; coercive control; penalty. Makes it a Class 1 misdemeanor for a person to engage in coercive control, defined in the bill, of a family or household member. The bill also includes coercive control in the definition of "family abuse" used for the basis of the issuance of family abuse protective orders.

HB 408 Virginia Sexual and Domestic Violence Victim Fund; funding for sexual assault services. Adds payments to sexual assault service providers and hospitals for the purpose of providing salaries and equipment for sexual assault nurse examiners and pediatric forensic nurses to the list of purposes for which funds from the Virginia Sexual and Domestic Violence Victim Fund may be used and requires the Department of Criminal Justice Services to prioritize funding to sexual assault service providers and hospitals that provide sexual assault nurse examiner services and pediatric forensic nurse services in rural and underserved communities when making funds available for such purpose. The bill also increases the amount apportioned to the Fund from the fixed-fee assessment for misdemeanors and traffic infractions tried in district court.

Criminal/Juvenile

HB 181 Criminal records; sealing of records; repeal. Repeals provisions not yet effective allowing for the automatic and petition-based sealing of police and court records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed.

HB 1115 Juvenile justice; human trafficking screening. Requires the Department of Juvenile Justice to use trauma-informed screening measures to identify whether any child committed to the Department has been a victim of human trafficking and determine appropriate treatment and service options. The bill also requires that, in cases in which a juvenile and domestic relations district court or circuit court orders that a juvenile within its jurisdiction be physically examined and treated by a physician or local mental health center, such examination include trauma-informed screening measures to identify whether the juvenile has been a victim of human trafficking and determine appropriate treatment and service options.

HB 1213 Minor victims of sex trafficking; arrest and prosecution; services. Provides that no minor shall be subject to arrest, delinquency charges, or prosecution for (i) a status offense, (ii) an act that would be a misdemeanor if committed by an adult, or (iii) an act that would be a felony if committed by an adult other than a violent juvenile felony if the minor (a) is a victim of sex trafficking or severe forms of trafficking and (b) committed such offense as a direct result of being solicited, invited, recruited, encouraged, forced, intimidated, or deceived by another to engage in acts of prostitution or unlawful sexual intercourse for money or its equivalent, regardless of whether any other person has been charged or convicted of an offense related to the sex trafficking of such minor. The bill also clarifies that it is not a defense to a commercial sex trafficking charge where the adult committed such violation with a person under 18 years of age that such person under 18 years of age consented to any of the prohibited acts. The bill also provides that the local department of social services shall refer any child suspected or determined to be a victim of sex trafficking to an available victim assistance organization that provides comprehensive trauma-informed services designed to alleviate the adverse effects of trafficking and victimization and to aid in the child's healing, including assistance with case management, placement, access to educational and legal services, and mental health services.

HB 622 Custodial interrogation of a child; advisement of rights. Requires that prior to any custodial interrogation of a child by a law-enforcement officer, the child and, if no attorney is present and if no exception to the requirement that the child's parent, guardian, or legal custodian be notified applies, the child's parent, guardian, or legal custodian shall be advised that (i) the child has a right to remain silent; (ii) any statement the child makes can and may be used against the child; (iii) the child has a right to an attorney and that one will be appointed for the child if the child is not represented and wants representation; and (iv) the child has a right to have his parent, guardian, custodian, or attorney present during any questioning. The bill states that if a child indicates in any manner and at any stage of questioning during a custodial interrogation that he does not wish to be questioned further, the law-enforcement officer shall cease questioning. The bill also requires, before admitting into evidence any statement made by a child during a custodial interrogation, that the court find that the child knowingly, intelligently, and voluntarily waived his rights and states that no admission or confession made by a child younger than 16 years of age during a custodial interrogation may be admitted into evidence unless it was made in the presence of the child's parent, guardian, custodian, or attorney.

HB 658 Juveniles; appointment of counsel; indigency. Removes provisions stating that when the court appoints counsel to represent a child in a detention hearing or in a case involving a child who is alleged to be in need of services, in need of supervision, or delinquent and, after an investigation by the court services unit, finds that the parents are financially able to pay for such attorney in whole or in part and refuse to do so, the court shall assess costs against the parents for such legal services in the amount awarded the attorney by the court, not to exceed $100 if the action is in circuit court or the maximum amount specified for court-appointed counsel appearing in district court. The bill also removes provisions requiring that before counsel is appointed in any case involving a child who is alleged to be in need of services, in need of supervision, or delinquent, the court determine that the child is indigent. The bill provides that for the purposes of appointment of counsel for a delinquency proceeding, a child shall be considered indigent.

Elder Law / Probate / Wills / Trusts

HB 836 Virginia Small Estate Act; funeral expenses of decedent. Provides that any person holding the small estate of a decedent shall pay the funeral director or funeral service establishment handling the funeral of the decedent at the request of a successor of such an estate. Under current law, such payment is discretionary and made to the undertaker or mortuary.

HB 1207 Department for Aging and Rehabilitative Services; training; powers and duties of guardian; annual reports by guardians; information required. Directs the Department for Aging and Rehabilitative Services to develop and provide training for court-appointed guardians. The bill requires an appointed guardian and any staff employed by such guardian to perform guardianship duties to complete the initial training developed by the Department within four months of the date of the initial court order of appointment and to include certain additional information in the annual report that the guardian is required under current law to submit to the local department of social services.

HB 1260 Guardianship; procedures for restriction of communication, visitation, or interaction. Provides that a guardian shall not restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship, unless such restriction is reasonable to prevent physical, mental, or emotional harm to or financial exploitation of such incapacitated person. Under current law, guardians are directed to not unreasonably restrict any such communication, visitation, or interaction. The bill further requires that the guardian provide written notice to any restricted person stating (i) the nature and terms of the restriction, (ii) the reasons why the guardian believes the restriction is necessary, and (iii) how the restricted person may challenge such restriction in court. The bill provides a procedure by which a person whose communication, visits, or interaction with an incapacitated person have been restricted may challenge such restriction in court.

HB 1095 Health care; decision making; end of life; penalties. Allows an adult diagnosed with a terminal condition to request and an attending health care provider to prescribe a self-administered controlled substance for the purpose of ending the patient's life in a humane and dignified manner. The bill requires that a patient's request for a self-administered controlled substance to end his life must be given orally on two occasions and in writing, signed by the patient and one witness, and that the patient be given an express opportunity to rescind his request at any time. The bill makes it a Class 2 felony (i) to willfully and deliberately alter, forge, conceal, or destroy a patient's request, or rescission of request, for a self-administered controlled substance to end his life with the intent and effect of causing the patient's death; (ii) to coerce, intimidate, or exert undue influence on a patient to request a self-administered controlled substance for the purpose of ending his life or to destroy the patient's rescission of such request with the intent and effect of causing the patient's death; or (iii) to coerce, intimidate, or exert undue influence on a patient to forgo a self-administered controlled substance for the purpose of ending the patient's life. The bill also grants immunity from civil or criminal liability and professional disciplinary action to any person who complies with the provisions of the bill and allows health care providers to refuse to participate in the provision of a self-administered controlled substance to a patient for the purpose of ending the patient's life.

SB 126 Abuse and neglect; financial exploitation; incapacitated adults; penalties. Changes the term "incapacitated adult" to "vulnerable adult" for the purposes of the crime of abuse and neglect of such adults and defines "vulnerable adult" as any person 18 years of age or older who is impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, advanced age, or other causes to the extent the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable decisions concerning his well-being or has one or more limitations that substantially impair the adult's ability to independently provide for his daily needs or safeguard his person, property, or legal interests. The bill adds the definition of "advanced age" as it is used in the definition of "vulnerable adult" to mean 65 years of age or older. The bill also changes the term "person with mental incapacity" to the same meaning of "vulnerable adult" for the purposes of the crime of financial exploitation. This bill is a recommendation of the Virginia Criminal Justice Conference. [NOW INCORPORATED IN SB 687]

HB 286 Nurse practitioners; declaration of death and cause of death. Authorizes autonomous nurse practitioners, defined in the bill, to declare death and determine cause of death; allows nurse practitioners who are not autonomous nurse practitioners to pronounce the death of a patient in certain circumstances; and eliminates the requirement for a valid Do Not Resuscitate Order for the deceased patient for declaration of death by a registered nurse, physician assistant, or nurse practitioner who is not an autonomous nurse practitioner.

SB 668 Death with Dignity Act; penalties. Allows an adult who has been determined by an attending physician and consulting physician to be suffering from a terminal condition to request medication for the purpose of ending his life in a humane and dignified manner. The bill requires that a patient's request for medication to end his life be given orally on two occasions, that such request be in writing, signed by the patient and two witnesses, and that the patient be given an express opportunity to rescind his request. The bill requires that before a patient is prescribed medication to end his life, the attending physician must (i) confirm that the patient is making an informed decision; (ii) refer the patient to a capacity reviewer if the physician is uncertain as to whether the patient is making an informed decision; (iii) refer the patient to a consulting physician for confirmation or rejection of the attending physician's diagnosis; and (iv) inform the patient that he may rescind the request at any time. The bill provides that neither a patient's request for medication to end his life in a humane and dignified manner nor his act of ingesting such medication shall have any effect upon a life, health, or accident insurance policy or an annuity contract. The bill makes it a Class 2 felony (a) to willfully and deliberately alter, forge, conceal, or destroy a patient's request, or rescission of request, for medication to end his life with the intent and effect of causing the patient's death or (b) to coerce, intimidate, or exert undue influence on a patient to request medication for the purpose of ending his life or to destroy the patient's rescission of such request with the intent and effect of causing the patient's death. Finally, the bill grants immunity from civil or criminal liability and professional disciplinary action to any person who complies with the provisions of the bill and allows health care providers to refuse to participate in the provision of medication to a patient for the purpose of ending the patient's life.

HB 424 Guardianship; duties of guardian; visitation requirements. Requires a guardian to visit an incapacitated person at least once every three months and make certain observations and assessments during each visit.

HB 610 Cemeteries; interment rights; proof of kinship.  Allows a family member or descendant of a deceased person buried in a cemetery that is located on private property to petition the circuit court of the county or city where the property is located for interment rights upon such property. The bill provides that such family member or descendant may prove kinship to the court through official documentation or nonofficial documentation, such as obituaries, family Bibles or other documents with family signatures, journals or letters of the deceased person interred on the private property, family photographs, or other documentation deemed by the court to be reliable. The bill requires, upon satisfactory showing of proof of kinship, a private property owner to allow such family member or descendant access to the property for the purpose of interment.

Judges

HB 761 Judicial Inquiry and Review Commission; availability of complaint forms. Requires that any standard complaint form utilized by the Judicial Inquiry and Review Commission shall be made available in paper form at every clerk's office in all courts across the Commonwealth. The bill also requires that a sign be posted in all state courts of the Commonwealth, in a location accessible to the public, detailing the availability and location of such form. Such sign shall also include information on how to access a downloadable electronic version of the form, which shall be made available on the official website of the judicial system of the Commonwealth, every individual appellate, circuit, general district, and juvenile and domestic relations district court website, if such website exists, and the website for the Division of Legislative Services.

Abortion

HB 983 Provision of abortion; abortion on the basis of genetic disorder, sex, or ethnicity prohibited; penalty. Removes from the list of persons who can perform first trimester abortions any person jointly licensed by the Board of Medicine and Nursing as a nurse practitioner acting within such person's scope of practice. The bill adds procedures and processes, including the performance of an ultrasound, required to effect a pregnant person's informed written consent to the performance of an abortion. The bill adds language classifying facilities that perform five or more first trimester abortions per month as hospitals for the purpose of complying with regulations establishing minimum standards for hospitals. The bill also provides that a person who performs an abortion with knowledge that the abortion is sought solely and exclusively on account of a genetic disorder, the sex, or the ethnicity of the unborn child is guilty of a Class 4 felony.

HB 212 Provision of abortion; right to informed consent. Requires physicians and authorized nurse practitioners to follow certain procedures and processes to affect a pregnant woman's informed written consent prior to the performance of an abortion.

HB 304 Abortion; born alive human infant; treatment and care; penalty. Requires every physician licensed by the Board of Medicine who attempts to terminate a pregnancy to (i) exercise the same degree of professional skill, care, and diligence to preserve the life and health of a human infant who has been born alive following such attempt as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age and (ii) take all reasonable steps to ensure the immediate transfer of the human infant who has been born alive to a hospital for further medical care. A physician who fails to comply with the requirements of this act is guilty of a Class 4 felony and may be subject to disciplinary action by the Board of Medicine. The bill also requires every hospital licensed by the Department of Health to establish a protocol for the treatment and care of a human infant who has been born alive following performance of an abortion and for the immediate reporting to law enforcement of any failure to provide such required treatment and care.

Lawyer Ethics and Discipline

HB 561 Virginia Attorney Disciplinary Commission; established. Establishes the Virginia Attorney Disciplinary Commission in the legislative branch of state government for the purpose of holding disciplinary hearings initiated by the Virginia State Bar against an attorney for a violation of the Virginia Rules of Professional Conduct or Unauthorized Practice Rules that would be the basis for a sanction to be imposed against such attorney and grants the Commission the power to hold issue sanctions against such attorney. The bill transfers any existing authority to discipline attorneys from the Virginia State Bar to the Commission.

LGBT Issues

HB 605 Constitutional amendment (voter referendum); marriage; repeal of same-sex marriage prohibition; affirmative right to marry. Provides for a referendum at the November 8, 2022, election to approve or reject an amendment that would repeal the constitutional provision defining marriage as only a union between a man and woman as well as the related provisions that are no longer valid as a result of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644 (2015). The amendment provides that the right to marry is a fundamental right inherent in the liberty of persons and requires the Commonwealth and its political subdivisions and agents to issue marriage licenses, recognize marriages, and treat all marriages equally under the law, regardless of the sex or gender of the parties to the marriage. Religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.

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

 Über ehestablisierende Rechtstechniken

On Marriage-Stabilizing Legal Techniques

 

by Prof. Dr. Hans Hattenhauer

 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 17^th – 19^th 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 19^th 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]

To gain self control, in conflict or solitude, have your future self in the room.

Want More Self-Control During Conflict? Try Appealing to your Future Self

by Tammy Lenski on mediate.com.

The best way to divide Christmas between divorced / separated parents is ...

The author of "What’s the best Christmas contact arrangement for children?"is a wise man, that's for sure. His slogan is, “Mediation is the fence at the top of the cliff, not the ambulance at the bottom.” I share his recommendation for mediation, or using your parenting coordinator if you have one, or even picking one or more neutral-ish friends to consult together to help resolve such issues. I used to know a judge who got in trouble for flipping a coin to decide the issue the parents put before her -- who got which half of Christmas vacation which year -- but I think what she did was precisely appropriate to the nature of the dispute, and made the point that the question should never have been in court at all. Here's how to do better:

What’s the best Christmas contact arrangement for children?

By Stephen G. Anderson+ | Parenting, Two minute blog

This top divorce litigator highly recommends mediation, but for reasons most of us won't talk about:

It's really refreshing to hear Atlanta divorce lawyer Randy Kessler say why he thinks mediation is "wonderful" and needed in almost every family law case that is in contested litigation or heading for it. ("High-Conflict Cases: Q&A with Randall Kessler" on familylawyermagazine.com, 9/1/15)

For me, just like for Randy, actually working as a neutral Mediator is just the tip of the iceberg. I act as a mediator in family law cases, but almost as often, I represent one person as their lawyer in a mediation that involves lawyers as well as clients and the neutral mediator. Even more often, I counsel clients who are in mediation on their own. I help them review their written agreements and their personal and legal situations before they finally sign a contract settling all the issues between them and their ex. But far more often than that, I help people through divorce and other family disputes as a negotiator and drafter, as a litigator, or in Collaborative Law, which combines the conflict-resolving  techniques of mediation with the things that mediators cannot provide but lawyers must: complete, frank legal advice; loyalty and fidelity to the client's goals and interests; and advocacy which makes sure that clients' views are heard, that their interests and concerns are carefully and adequately considered in the process, and that before making any final decision, they have enough time, information, advice, and are in a mental and emotional state to understand and make such life-changing decisions safely. 

I'm not a touchy-feely "new age" or "granola" mediator or lawyer, so I have always really liked Randy's style. He mentions one virtue of mediation that I always thought was necessary and should be recognized and developed, but which went against the purist therapeutic, facilitative, non-directive ideal of mediation which I was trained in over 20 years ago. Many people in disputes want, and need, to make their case for justice, as they see it, to someone who represents their community (however they define it), and/or an authority figure,  or at least to someone who will understand their situation, and whom the other party will have to respect and listen to. I always thought of this aspect as "A Mediator is a Person in Your Neighborhood."

Here's the mediation part of Randy's interview: 

Let’s be clear that I'm a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I'm an advocate and often hired because people think they need to litigate.

Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It's a wonderful process and it's almost necessary in every case, except when there’s domestic violence or it's clear mediation won't work. It is worth trying for so many reasons and that's why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.

There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent's case that makes you re-evaluate your case, or you may learn something about your own client and realize they can't stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they've said it to somebody besides their attorney – somebody neutral like a mediator.

Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.

Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they'd had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. ...

From: "High-Conflict Cases: Q&A with Randall Kessler" on http://familylawyermagazine.com, 9/1/15.

Randy's book is How to Mediate a Divorce.