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)

 


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

 


Where Congress's attack on alimony tax exclusion came from: Both sides' explanations insufficient, not reality-based. Here's what we know:

The House-passed GOP tax bill shifts the tax burden on alimony from alimony payors to recipients. I.e., about 97% of the time, from divorced women to divorced men, who we all assume are in higher tax brackets than their exes. Currently, alimony is considered part of the recipient's taxable income, and not the payor's. The change would affect alimomy from post-2017 court orders or agreements, including modifications of earlier orders.(There's one feature of the bill that's completely good, and apparently not controversial: Including alimony payments pursuant to a written marital agreement, with no court order, in the definition of alimony.)

 It's important to sometimes pause from a search for subtle "incentives" and subliminal effects, and remind ourselves what the most basic and obvious effect of a policy change is: In this case, taxing men instead of women on tens of thousands, sometimes over $100,000, of annual income. Alimony is all or most of many divorced women's incomes, and can already take a very large fraction of some men's incomes. Virginia's guidelines call for at least 28% of a breadwinner's gross income as alimony to a non-working spouse, and that's before child support, and before any deductions from his paycheck for taxes, social security, etc. 

Lawyers, journalists and even the National Organization for Women have attacked the proposal, not for being anti-male, but for changing the law's current incentive for men to agree to pay alimony, and thus reducing the amount of alimony women would get. The change probably would have that effect, but that whole argument probably only occurred to them because this is a Republican proposal and it fits the narrative of a GOP "War on Women". Ordinarily, women's groups would be all for something that shifts divorce women's tax burdens wholesale onto their exes.

Blogger Stuart Levine, and many columnists quoting him, including Kevin Drum at the usually more thorough Mother Jones, have really only speculated about why anyone would want to do such a thing. Liberal writers and the supposably* conservative proponents of the change seem to share the mutually convenient illusion that this is an attack on divorce, on behalf of Christian morality. But that simply has nothing to do with how divorce, alimony or taxes actually work. The GOP Ways & Means Committee Summary says only this on behalf of the change:

  • The provision would eliminate what is effectively a “divorce subsidy” under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.
  • ... spousal support as a consequence of a divorce or separation should have the same tax treatment as the provision of spousal support within the context of a married couple, as well as the provision of child support.
  • ... the provision would increase revenues by $8.3 billion over 2018-27.

Frankly, living as close to Republican Washington as I do, it sounds like a young staffer who doesn't know anyone who pays alimony, who hasn't been invovled in a divorce, and just recently got off the parental  tax returns and started filing form 1040-EZ, was thrown mysterious, possibly garbled instructions for changing something about alimony taxation, and was given 15 minutes to come up with some Republican-sounding arguments for it. But actually, the proposal was part of an early-2014 "Tax Reform Act" introduced by former Ways & Means chair Rep. Dave Camp, now retired,  and the arguments above are repeated verbatim from the Committee Summary of that bill. 

The "subsidy" argument, to the extent that it's either launched or received as an attempt to discourage divorce, partakes of the long-standing and totally wrongheaded assumption that "a couple" decides to get divorced, and may be incentivized, rewarded or punished for doing so. This dates back to the early days of no-fault divorce reform, when reformers picked the most compelling poster-children, decent people who both wanted to divorce but who were caged in "Holy Deadlock" by laws that denied them a divorce even when they both wanted one. Some conservatives and moralists, being apparently unfamiliar with divorce, and gullible about letting their opponents pick the battlefield and define its terms, compliantly responded that these couples were hastily giving up on their marriage and should be incentivized, restricted, counseled, and/or made to wait to see if it's what "they" really wanted. And whenever any change to loosen or tighten divorce laws is proposed, the same old arguments are dusted off, even though divorce decisions have long been unilateral and the proposed changes hardly ever would affect the "poster children" whom the arguments describe. 

Individuals decide to divorce, pay taxes after divorce, and might or might not respond to incentives. Couples don't and can't.

The Committee's equality-based argument is even more surreal. Spousal support after separation or divorce is very different from what the Committee refers to as "spousal support within the context of a married couple", which it says should receive the same tax treatment. Uh, a married couple that isn't separated lives together as a family and an economic unit, and doesn't pay support checks to each other. And they can't get "the same tax treatment", because a married couple files taxes jointly or as the very disadvantageous "married filing separately", while divorced people file as single, or jointly with their new spouses. Again, this sounds like college debaters grasping for arguments about parts of adult life that they know nor care nothing about. 

 Here's what might have led to this: Veteran Congressman Lloyd Doggett D-TX last year was pushing a plan to require 1099s for alimony payments, citing a Treasury study showing about $2.3 billion a year in alimony excluded from payors' income but never reported by recipients. He wanted to use the revenue it gleaned to help states improve their foster care systems."He has been discussing the issue with Ways and Means Chairman Kevin Brady," Congressional Quarterly Roll Call reported. Perhaps the drafters set out to do what Doggett proposed, then realized that it would be simpler, cheaper, and revenue-positive to eliminate the tax code's recognition of alimony entirely, and seized on the 2014 proposal and arguments. It's probably the pet project of one Ways & Means member or staffer who's been there since Camp was Chair.

But where are the deeper, more extensive arguments that ordinarily would lead to something like this? To find out I traced backwards from the only article I found in favor of the change, "A Human Capital Theory of Alimony and Tax", by feminist law professor  Tessa Davis in the  George Mason Law Review. The only part of it I've thoroughly read is its abstract, every word of which is totally wrong, except for the stuff about "Family Law Theory", the entire posited existence of which is not only wrong, but should not be conceiveable in a rational world where people care about the real-life effects of anything. Even to utter its name, silently to oneself,  throws down a gauntlet and crosses a Rubicon into a world where mere Families and Laws will henceforth be trivial playthings in the tiny hands of academic Theories and their adepts and familiars.

And yet I cannot help but admire Davis for having the monumental audacity to claim to speak for "a scholarly consensus" in favor of some kind of fundamental change. She cites only two previous proposals for tax law to disregard alimony: Rep. Camp's 2014 bill, and Donald H. Berman, "The Alimony Deduction: Time to Slaughter the Sacred Cow," 4 Am. J. of Tax Pol’y 49 (1985). Berman called the exclusion "inequitable, complex and arbitrary", and above all, unnecessary now that marginal tax rates had declined from a healthy, vigorous 91% to a negligible 50%. More of the history of dissent from the current regime can be learned from another, very solid, article Davis cites, Deborah Geier, "Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce," 55 TAX LAWYER 363 (2001).  It recounts that in the mid-1980s, Senate Finance Committee staffers proposed totally eliminating the alimony exclusion. They tried to rally women's groups to their side. The ultimate results they got, and possibly what they were aiming for all along, were incremental restrictions that may have helped increase revenue and predictability.  (Id., pp. 404-406.)  The article advocates letting couples choose who'll pay the taxes on any forms of support or property transfers, with a default rule that the recipient has to pay them. It cites a very similar proposal, Laurie L. Malman, "Unfinished Reform: The Tax Consequences of Divorce," 61 N.Y.U. L. REV. 363, 367 (1986).

 Davis's own argument is that alimony in a divorce is mostly viewed as compensation for "human capital," or return on investment or compensation for loss, none of which are taxed, and that any distinction between it and property transfers is artificial. (See pp. 50-55 of her article, downloadable from the abstract web page.) (Malman made similar arguments for her free-choice proposal.)

But the problem is, normal alimony, the kind that qualifies for the tax exclusion, almost always comes directly from someone's income -- where, unlike property, it get taxed if the Code doesn't exclude it -- and goes to provide income for someone else. The IRS has established clear, easily-followed boundaries between regular alimony and non-qualifying lump-sums that are more like property division. And in real alimony negotiations and trials, alimony is almost totally based on income -- needs and ability to pay. Yes, decisions are sometimes influenced by arguments about spouses' contributions to the marriage, but when statutes,  judges and litigants look at women having sacrificed their own careers for the sake of a husband's career or to raise children, their point is that the women have a legitimate reason for needing supplemental income, and that it may take time for them to wholly or partly "rehabilitate" their earning potential.

Once again, this time on the left, the theorists are looking at the subtler reasons for alimony and missing what it obviously IS and what it's almost always FOR in real life.

 

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* "Supposably" is a real word. It's from Seinfeld.


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

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

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

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

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

By ELLEN ROBERTSON Richmond Times-Dispatch


IRS will recognize all gay marriages that were legal where performed

"All legally married same-sex couples will be recognized for federal tax purposes, regardless of whether the state where they live recognizes the marriage, the Treasury Department and the Internal Revenue Service said Thursday. ...

"The Treasury said that the ruling applies to “all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an I.R.A., and claiming the earned income tax credit or child tax credit.”

"The ruling applies to all legal marriages made in the United States or foreign countries. But it does not extend to civil unions, registered domestic partnerships or other legal relationships, the Treasury said. Same-sex spouses will be able to file as married couples for the 2013 tax year, the Treasury said, and will also be able to file amended returns for certain prior tax years, meaning that many couples might be eligible for refunds.

From "I.R.S. to Recognize All Gay Marriages, Regardless of State" By , NY Times 8/29/13

Such couples will NOT have the option of filing as single. Like other married couples, they will have to file jointly, or as "married filing separately" starting with tax year 2013.

The ruling does NOT affect social security benefit eligibility.


IRS proposes broader "innocent spouse" relief

"More Innocent Spouses Qualify for Relief Under New IRS Guidelines" - irs.gov

Notice proposing a new revenue procedure, posted today on IRS.gov, revises the threshold requirements for requesting equitable relief and revises the factors used by the IRS in evaluating these requests. The factors have been revised to ensure that requests for innocent spouse relief are granted under section 6015(f) when the facts and circumstances warrant and that, when appropriate, requests are granted in the initial stage of the administrative process. The new guidelines are available immediately and will remain available until the finalized revenue procedure is published. The IRS will immediately begin using these new guidelines when evaluating equitable relief requests.

"The IRS is significantly changing the way we determine innocent spouse relief," said IRS Commissioner Doug Shulman. "These improvements should dramatically enhance our process to make it fairer for victimized taxpayers facing difficult situations.”

This is the second major change made to the innocent spouse program. In July, the IRS extended help to more innocent spouses by eliminating the two-year time limit that previously applied to requests seeking equitable relief.

The IRS invites public comment on the proposed revenue procedure. 

 

The notice says, in part:

 This proposed revenue procedure expands how the IRS will take into account abuse and financial control by the nonrequesting spouse in determining whether equitable relief is warranted. Review of the innocent spouse program demonstrated that when a requesting spouse has been abused by the nonrequesting spouse, the requesting spouse may not have been able to challenge the treatment of any items on the joint return, question the payment of the taxes reported as due on the joint return, or challenge the nonrequesting spouse’s assurance regarding the payment of the taxes. Review of the program also highlighted that lack of financial control may have a similar impact on the requesting spouse’s ability to satisfy joint tax liabilities. As a result, this proposed revenue procedure provides that abuse or lack of financial control may mitigate other factors that might otherwise weigh against granting equitable relief under section 6015(f). The proposed revenue procedure also provides for certain streamlined case determinations; new guidance on the potential impact of economic hardship; and the weight to be accorded to certain factual circumstances in determining equitable relief.

 

 


New UK gov't vows sweeping reforms including family policy, civil liberties, gay rights

The new Government has issued its “Coalition Document”, its platform for legislation and governing, including a section on Families and Children with “pledges” for reforms to family law and indeed to broad swaths of culture and society that affect children and families. It includes highly worthy but diffuse efforts such as “end child poverty” and “tackle the commercialisation and sexualisation of childhood”, but also some interesting specifics, including:

-  “Relationship support” will get stable, long-term funding and couples will be encouraged to use it.
- “Encourage shared parenting from the earliest stages of pregnancy” – including flexible parental leave.
-  Conduct a comprehensive review of family law in order to (1) increase the use of mediation and (2) improve access [a.k.a. visitation] for parents and grandparents
-  Free day care
-  Reduce the couple penalty in the tax credit system
- “Crack down on irresponsible advertising and marketing, especially to children”

It specifically does not point to further loosening the no-fault divorce laws, but the coming “comprehensive review of family law” could certainly end up including that. Too often, here in the US, pro-family reform packages that start out like this one have ended up adding quickie unilateral divorce to the mix, and then stripping out all the other family-supportive stuff (especially if that stuff requires government funding or trained, dedicated personnel).

Other parts of the document promise to:

- End the detention of children for immigration purposes

- “Push for unequivocal support for gay rights and for UK civil partnerships to be
recognised internationally”

- Stop deporting asylum seekers who face prison, torture or death for being gay or transgender

- Change the law so that historical convictions for consensual gay sex with over-
16s will will not show up on criminal records checks

- Reverse the substantial erosion of civil liberties and roll back state intrusion, protect trial by jury, restore rights to non-violent protest, review libel laws to protect freedom of speech, stop plans for national ID cards, registries and databases; investigate the creation of a British Bill of Rights.


Last-minute tax law change on who gets child exemptions, and how

Legislation enacted Dec. 21, 2005 in response to the hurricanes made a last-minute change in the definitions of "custodial parent" and "noncustodial parent" for purposes of exemptions, child tax credits, child care credits, head-of-household filing status, and other child-related benefits and provisions, BNA's Family Law Reporter reports.

Another change: noncustodial parents claiming exemptions will once again have to attach to their returns a Form 8332 or other statement signed by the other parent.

Family Law Reporter says that the details of all this are included in the new Form 8332.