Important Disclaimer

MOTOR VEHICLE REGULATIONS

Driver’s License Requirements

For Virginia Residents

Anyone driving a motor vehicle in Virginia must carry a valid driver’s car3 license. All Virginia residents are required to have a

valid Virginia driver’s license to legally operate any

motor vehicle within the Commonwealth of Virginia.

Motor vehicles include automobiles, motorcycles,

motor scooters, trucks, buses, etc. Tractors and motorized farm equipment are not considered motor vehicles.

Driver’s licenses are available at any Virginia Department of Motor Vehicles (DMV) office. There are many DMV locations throughout the state. The nearest location may be found in the state government section of the phone book (the Blue Pages), calling 1-866-DMV-LINE, or by accessing the DMV website, www.dmvnow.com.

Requirements to Obtain a Virginia Learner’s Permit

To qualify for a Virginia learner’s permit, you must be 15 years and 6 months of age, complete an application, pay a fee, obtain the signature of a parent/guardian, and pass a written test. This learner’s permit allows you to operate a motor vehicle when any licensed driver at least 21 years of age, or a legal guardian or sibling who is at least 18 years of age, is seated beside you.

Requirements to Obtain a Driver’s License

To qualify for a Virginia driver’s license, you must be at least 16 years and 3 months of age. If you are a Virginia resident under age 19, you must complete a state-approved driver education program and hold your Virginia learner’s permit for at least 9 months. If you are a Virginia resident 19 years of age or older, you must hold a learner’s permit for at least 30 days or show proof of completion of a state-approved driver education program.

The DMV provides booklets to help prepare for the written test. The license is valid until the expiration date listed on the license and must be periodically renewed. You must notify the DMV if you change your address.

People who are applying for a Virginia driver’s license, learner’s permit, or DMV-issued photo identification card for the first time must provide the DMV with proof of legal presence, proof of Virginia residency, proof of identity and proof of social security number. Documents proving legal presence include a U.S. birth certificate, U.S. passport, a certificate of citizenship or naturalization, resident alien card (a “green card”), or a foreign passport with a valid U.S. visa.

Non-Military Out-of-State Residents

If you are a non-resident temporarily living in Virginia, you may drive in Virginia with a valid driver’s license from another state. If you become employed in Virginia or live in Virginia for more than 60 days, you must obtain a Virginia driver’s license. This does not apply to commercial vehicle drivers or non-employed, full-time students.

If your driver’s license has been suspended or restricted in another state, Virginia will not issue a new license until the suspension or restriction has been removed. The DMV will run a computer check before issuing a Virginia driver’s license, and you will have to provide documentation of legal presence in Virginia.

If you are more than 19 years old, and you have a valid driver’s license issued by another state, you may only be required to pass a vision screening to obtain a Virginia license. The DMV will exchange your out-of-state license for a new Virginia license. If you are applying for your first Virginia driver’s license, you will have to provide documentation of legal presence in Virginia.

If you are younger than 19 years old, but older than 16 years 3 months and can present proof of a driver’s education class, the DMV may exchange your valid driver’s license from another state. If you cannot show proof of the driver’s education class, you may be issued a 6-month temporary Virginia license. This will give you time to complete a state-approved driver’s education class.

Military Out-of-State Residents and Their Families

If you are an active-duty member of the armed forces stationed in Virginia, you, your spouse, and dependent children 16 years and 3 months of age or older may drive with a valid driver’s license issued by your home state or country and do not need to obtain a Virginia license. Those who hold Department of Defense issued military license for private vehicles can drive in Virginia for 60 days without a Virginia driver’s license.

Vehicles registered in your name may be driven with valid out-of-state license plates if you are the sole owner. If the vehicle is co-owned, all co-owners must be active-duty members of the armed forces. You may register your vehicle in Virginia without obtaining a Virginia driver’s license.

Cellular Phones

If you are under 18 years of age, then you may not use a cellular phone while driving in Virginia.

Child Safety Seat Requirements

All children under the age of eight are required to be properly restrained in a child safety seat. A parent may obtain an exemption to this requirement, if a physician determines the use of a child safety seat to be impractical due to weight, physical fitness or any other medical condition. In addition, child safety seats must be placed in the back seat of the vehicle. If the vehicle does not have a back seat, then the child safety seat may be placed in the front seat, provided there is no air bag, or it has been deactivated.

Vehicle Registration Requirements

Virginia Residents

To legally operate a motor vehicle in Virginia, an in-state resident must register the vehicle with the DMV. The person must bring to the DMV the title to the motor vehicle (the legal certificate of ownership), proof of financial responsibility, and a valid Virginia driver’s license. Some localities also require an emissions certificate (showing that your vehicle passes emissions inspection requirements). In most cases, proof of financial responsibility is shown by a statement of insurance coverage from a recognized insurance company. Applicants also must pay a registration fee.

The DMV will issue a vehicle registration and license plates. Vanity (personalized) plates are available for a $10 annual fee in addition to the regular plate fee. Certain plates that are sponsored by organizations and groups may require additional fees.

Non-Virginia Residents

In order for a non-Virginia resident to drive a motor vehicle in Virginia without a Virginia registration, the driver must have a valid registration from their home state. However, once the motor vehicle has been operated in Virginia for a period of six months, the non-resident owner must register it with the Virginia DMV.

When a driver changes his or her residency to Virginia, the driver has 30 days to comply with Virginia’s motor vehicle registration requirements. The driver must to go to a Virginia DMV with a valid out-of-state title to the vehicle, proof of Virginia insurance, and a valid driver’s license and pay any fees required by the Commonwealth. The driver must also ensure that his or her vehicle passes Virginia’s emissions and safety standards.

Military Out-of-State Residents and Their Families

If you are an active duty military service member, activated reserve or national guard member, or mobilized reserve or national guard member living in Virginia, and your vehicle is titled or registered elsewhere in the United States, then you do not need to title or register your vehicle in Virginia.

Inspection

Virginia law requires that all vehicles registered in Virginia have an annual safety inspection, so that all vehicles on the road meet minimum safety requirements. Many service stations are licensed by the Commonwealth to perform safety inspections for a small fee, usually around $10 or $20. Don’t be fooled into paying more! If a vehicle passes the safety inspection, a current safety inspection sticker will be issued. The sticker must be displayed in the bottom center of the vehicle’s front windshield or on the front forks of motorcycles and scooters. Failure to have or display a valid safety inspection sticker is a violation of Virginia’s motor vehicle laws and can result in penalties and fines.

If the car is garaged or permanently parked in the counties of Arlington, Fairfax, Loudoun, Prince William, or Stafford, or the cities of Alexandria, Fairfax, Falls Church, Manassas, or Manassas Park, it will also need an emissions inspection. (This information can be found on the websites of the individual cities or counties).

Insurance

The owner of each motor vehicle in Virginia must have proof of financial responsibility for any liability resulting from damages involving that motor vehicle. The owner can meet this requirement by showing that he or she has a valid insurance policy. The policy must designate all motor vehicles covered and insure the following: the person named on the policy, any other person using the vehicle with the owner’s permission, and against liability—care and loss of services, bodily injury or death, and destruction of property. The policy must provide at least $25,000 for bodily injury or death of one person; $50,000 for bodily injury or death of two or more people; and $20,000 for injury to property.

Sometimes a person with a bad driving or accident record may be unable to get insurance in a normal manner. If this happens, the driver may be able to get insurance through the State Corporation Commission. Check with any reputable insurance agent. If necessary, check with the DMV for information.

A person who wants to register an uninsured motor vehicle must pay a fee of $500 to the DMV. This does NOT, however, entitle the person to operate that motor vehicle in Virginia. Anyone who operates a motor vehicle in Virginia and fails to provide proof of financial responsibility (usually through an insurance policy or a certificate of self-insurance) may be subject to suspension of their driver’s license, motor vehicle registration, and/or a maximum fine of $500.

Rental Cars

A person who rents a car ordinarily will be responsible for any damage caused while driving it. If the car is damaged, the renter will likely have to pay the rental company for the damage. Renters should be aware that some companies will not rent to people under the age of 25. Other companies will rent to a person under the age of 25 only if that person pays an extra fee.

Under Virginia’s Collision Damage Waiver Act, a rental company must give the renter the chance to buy a collision damage waiver. A collision damage waiver is an agreement between the company and the renter that limits the amount of money the renter could owe the company if the car is damaged. The collision damage waiver must appear in the rental contract, and be in bold print.

A renter does not have to purchase the collision damage waiver. If a renter does not, the company may charge the renter for any damage to the car. The renter’s normal auto insurance policy may also protect him or her, and many credit cards provide collision damage when the rental car is charged to that card. A car renter should find out before the rental whether he or she will be protected by insurance or credit card. A renter should also read the terms of any protection that they might buy, including the collision damage waiver. The coverage may not apply in some situations. The collision damage waiver will not exempt the renter, for example, from liability for acts such as drunk driving.

When deciding whether to buy a collision damage waiver, a renter should be careful to see whether the waiver, their insurance policy, or his or her credit card will protect against part or all of the damage. Insurance policies, for example, often have deductibles, an amount that the person usually has to pay personally before the insurance company will pay.

When a person rents a car with a credit card and does not buy a collision damage waiver, some companies place a “hold” on the card. This means that the company reserves a fixed amount of money that it will charge the driver if the car is returned damaged. If there is no damage, the company only charges the proper rental cost to the card. A renter should know that as long as there is a “hold,” the amount of the “hold” will apply toward the card’s credit limit.

Motor Vehicle Taxes; City and County Stickers

In General

Most cities, towns, and counties in Virginia require that people pay a personal property tax on all motor vehicles kept in the city, town, or county. The tax is paid to the city, town, or county clerk.

Most cities, towns, and counties also require that owners buy an annual registration sticker for vehicles garaged or kept in the city, county, or town, usually to show payment of the personal property tax. Police officers can stop and ticket a car without a sticker. Some localities, however, are abandoning the sticker requirement. That is, a car owner still must pay the fee, but the sticker does not need to be affixed to the windshield.

Stickers can be bought only if the vehicle owner has paid his or her personal property tax. New stickers must be bought every year, usually in the spring, and often can be purchased by mail. These stickers are not sold by the DMV; they are sold by the city, town, or county treasurer.

For full-time college students, the location of their permanent residence determines whether they must obtain a Virginia driver’s license and whether they must pay personal property taxes.

Military Personnel

Non-resident military personnel do not have to pay personal property tax on their cars, but still must get a sticker. Cities, towns, and counties will issue stickers to military personnel either free or for a token amount. Personal property taxes, however, do have to be paid on cars owned jointly with a non-military resident husband or wife, or on any other taxable personal property owned by the non-military spouse.

II. VOTING

Who May Vote?

Restoration of Rights Director
Office of the Secretary of the Commonwealth
Post Office Box 2454
Richmond, Virginia 23218-2454

(804) 692-2531

See www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm for more information.

Voter registration is free. Once a person has registered, registration remains valid even if they do not vote in an election, so long as they do not move. Once a person changes addresses, they must notify the local registration office to ensure that their registration remains active.

The local registrar is listed in the government (blue) pages of the phonebook, or you can access the Virginia State Board of Elections website: http://www.sbe.virginia.gov.

Absentee Voting

In General

A Virginia voter who will be out of the city or county on the day of election, or cannot go to vote because of illness or disability, or is in jail (but has the right to vote), may request an absentee ballot from the registrar by mail or in person. Absentee ballots allow a voter to record his or her vote on a paper ballot without visiting the polls on election day. Mail applications requesting absentee ballots must be received by 5:00 p.m. 7 days before the election; an in-person ballot can be requested until 5:00 p.m. on the Saturday before the election. Absentee ballots must be returned by 7:00 p.m. on Election Day.

Out-of-State Military Personnel

Military personnel registered to vote outside Virginia must vote in their home states. Absentee ballots can be obtained easily, and military voting officers will help personnel get ballots.

III. HOUSING

Choosing a new home is one of the most important things a person can do and that choice involves many legal considerations.

Buying a Home

Buying a home is a major financial decision and may involve not just a real estate broker (who usually represents the seller), but also a banker and a lawyer. If you are buying a home, a banker or realtor will be able to answer most of your questions. If you are buying a home, try to make sure that your real estate agent, if you are using one, is a member of the National Association of Realtors®. Members of this group agree to a code of conduct that includes certain consumer protection measures.

Renting a Home

Common sense is very important when renting a home and can often save you from later legal problems. Spend some time looking around for the right place to live; don’t jump into choosing the first place you see. Your home is where you will spend most of your free time, so try to find one that will satisfy your needs—for now and in the future. Compare rental prices and talk to neighbors to find out what a neighborhood is like. Ask about crime, noise, schools, and other things that are important to you. Remember, the landlord is selling you a product—the property. It is only natural for landlords to talk about the good aspects of that property. Protect yourself by looking beyond what the landlord tells you and look at whatever downside you think there might be to the property. If you like loud music, make sure you aren’t moving into a very quiet neighborhood. If you like peace and quiet, make sure you aren’t moving next door to, or underneath, a heavy metal band. Once you have found a place to live, don’t let your emotions get you into trouble. The old saying “look before you leap” is good advice when renting or leasing property. Let the buyer beware!

Fair Housing Laws

The Virginia Fair Housing Law ensures fair housing practices in the Commonwealth of Virginia. The law prohibits discriminatory acts based on race, color, religion, national origin, sex, age (status as a person 55 years of age or older), or familial status (which means having children under 18 living with a parent or guardian, pregnant women, or persons in the process of getting custody of a person under 18).

Prohibited acts include the following: (1) Refusing to sell or rent after getting a legitimate offer; (2) refusing to negotiate for a sale or rental; (3) discrimination in the terms or conditions of a rental agreement or lease; (4) falsely denying that housing is available; or (5) discriminatory advertising. The law also prohibits landlords from falsely telling handicapped persons that housing is unavailable or from discriminating against the handicapped in their advertising.

If you think you have been discriminated against or if you have questions about the fair housing laws, contact the Virginia Fair Housing Office.

Virginia Fair Housing Office

3600 West Broad Street, Fifth Floor

Richmond, Virginia 23230

(804) 367-8530 or (888) 551-3247

E-mail: fairhousing@dpor.virginia.gov

See http://www.dpor.virginia.gov/dporweb/fho_index.cfm for more information.

Military personnel faced with discriminatory acts may wish to advise the Inspector General (IG) and the local housing referral office. If the complaint is confirmed and the landlord does not take corrective action, the property can be placed off limits to military personnel. Military personnel may also wish to consult the local legal assistance branch of the Staff Judge Advocate’s office for legal advice.

Except for its advertising provisions, the Virginia Fair Housing Law does not apply to the sale or rental of single-family houses, unless the landlord owns three or more places to rent. The law also has special rules for religious organizations and non-commercial private membership clubs.

An Important Warning about Landlord-Tenant Laws

Much of the information that follows concerning landlord-tenant rights and duties comes from the Virginia Residential Landlord and Tenant Act (VRLTA). There are a number of exceptions to this law. Under the Act, for example, unless they are in the rental agreement, many of the special protections do not apply to tenants renting from landlords with fewer than ten apartments; any public housing units; commercial, business, or agricultural leases; or fraternal or social organizations.

Because of these special exceptions, a situation that seems to violate Virginia law as discussed in this section may not actually violate the law. You may need to get legal advice to be sure. The exceptions do not apply to the special rules that permit military personnel to end their leases because of transfer.

Application Fees & Deposits

Landlords are allowed to collect an application fee from prospective tenants. This fee covers the costs of checking the applicant’s credit history and references to determine if a prospective tenant is qualified. Often landlords will ask for a deposit to hold the property while the application is processed. If you do rent the property, the landlord will apply this deposit towards the security deposit.

If you do not rent the property because the landlord rejects you as a tenant, and the application fee or deposit exceeds $32, the landlord must refund the application fee or deposit. The landlord has up to 20 days to return the fee or deposit, or 10 days if you paid by cash, certified check, cashier’s check, or postal money order.

If the landlord accepts the application, but you decide to live somewhere else, you should let the landlord know, in writing, that you are no longer interested in the property. If you do not let the landlord know you have decided to live somewhere else, and the landlord has lost money by holding the property for you or has spent money getting the property ready for you, the landlord may keep all or some of the application fee or deposit to cover his or her actual expenses or damages.

If the landlord does not return all of your money, the landlord must provide you with a written list of the reasons why he or she is keeping your money. The landlord must send this to you within 20 days. If the landlord simply does not return the application fee or deposit, for no reason, you may recover the fee plus reasonable attorney’s fees.

The Lease Agreement

An agreement to rent an apartment, house, or motor home is usually called a lease. The person who owns the property is the lessor (the landlord), and the person renting the property is the lessee (the tenant).

Leases in Virginia may be oral or written. An oral agreement is not very wise. When people make a deal without putting it in writing, they do not always agree on what they said and meant. If you later get into a disagreement, it’s hard to prove what was actually said. Oral agreements about services such as painting or installing new carpeting, for example, may be very difficult to enforce. Always get a written lease if possible. If a landlord doesn’t want a written lease, something may be wrong. Consider this a warning signal. You might want to look somewhere else for a place to live. Be safe; get it in writing!

Read a lease very carefully. Once you sign it, you are legally bound by it, and the landlord can enforce it in court. Make sure you understand all the words. Claiming later that you did not understand the agreement usually will not be an acceptable excuse. Don’t be embarrassed to ask the landlord to explain any confusing words, paragraphs, or conditions. If the answer sounds different from what you see in the contract, ask the landlord to write the explanation down and sign it. Leases are usually long and difficult to read, but you should make sure you understand every term before you sign the lease. Trust your instincts. If it doesn’t seem right, it probably isn’t.

The terms of a written lease can be binding even if it is unsigned. If the tenant and landlord agree on the terms, the tenant pays rent, and the landlord accepts rent, the lease may be binding even though the landlord and tenant didn’t sign the lease. If a lease is signed by both the landlord and tenant, the landlord must give a copy to the tenant within one month after the lease is signed.

Inspecting Your Apartment When You Move In

Before you move in, you should carefully inspect the property for any damage, including nail holes, carpet stains, wall stains, missing or damaged appliances, plumbing leaks, and any other problems and report it to the landlord in writing within five days. Otherwise, the landlord may later claim that you caused the damage. Try to get a signed statement from the landlord admitting that the property has the specific damage you found. Dated pictures of the damage are very helpful. You may even want to have someone else look at the damage so that you have a witness if necessary. If you have a good relationship with your landlord, you could do a “walk-through” with him or her so that you both view the damaged areas together before you move into the apartment. Remember to keep a copy of any letters or photos to protect from being charged for that damage when you move out.

Within five days from when you occupy the property, the landlord is required by law to give you an itemized list of the existing damage. If you want to change or correct the list, you must respond within five days. If you don’t respond, the law assumes that you accept the landlord’s list.

Although tenants do not own rented property, you should treat it as if it were your own. After all, you live there! If nothing else, if the landlord sees that you care for the property, the landlord will usually be more enthusiastic about helping maintain it. Nothing is more irritating to a landlord than a tenant who allows his or her property to become run down or destroyed. Often the lease will provide that failure to maintain the property is grounds for eviction.

Landlords and tenants have specific responsibilities and obligations. For example, the landlord must maintain dwelling units in a “habitable” (livable) condition and provide essential services (like running water), and, of course, the tenant must promptly pay the rent. These responsibilities and obligations will be discussed in greater detail below.

Security Deposits

What Is a Security Deposit?

A security deposit is money left with the landlord to make sure that the tenant does what the lease requires and that the tenant leaves the property undamaged. If the tenant does what is required, the landlord must return the security deposit when the tenant moves out.

Virginia law allows a landlord to ask for a security deposit. The amount of the deposit cannot be greater than two months’ rent. When the lease ends, the landlord may keep part or all of the security deposit to cover any unpaid rent or to repair damage to the property beyond reasonable wear and tear, or other expenses, such as utility bills for which the tenant is responsible.

A landlord must pay interest at a rate equal to four percentage points below the Federal Reserve Board discount rate as of January 1 of each year on any security deposit held for more than 13 months. The interest begins accruing at the effective date of the rental agreement. The interest is not compounded—the amount of the initial deposit earns interest but you will not receive interest on any interest due.

Under certain circumstances, a landlord may take money from the security deposit while you occupy the property, but the landlord must follow legal guidelines. The landlord must list the deductions and notify you within 30 days from when the deduction is made. If the landlord does not notify you within 30 days, and you don’t owe rent, then the landlord may lose the right to subtract this amount from the deposit.

What Happens to a Security Deposit When the Tenant Moves Out?

The landlord must inspect the property within 72 hours from the time the landlord knows that the tenant has left. The tenant has the right to be present when the landlord inspects the premises, and, if possible, the tenant should take advantage of this and be present when the landlord inspects the property. This should make it easier for the landlord and tenant to agree on whether there is any damage that will have to be repaired at the tenant’s cost. If the property had damage when the tenant moved in, the tenant should have any written records of that damage ready to remind the landlord. This can be very important if the landlord’s rental agent or manager is doing the inspection, and the agent or manager is not the same agent or manager who inspected the property at the beginning of the lease.

When the tenant moves out, the landlord must send the tenant the security deposit and any interest earned on the deposit. The landlord, however, may deduct from the security deposit any unpaid rent, applicable late charges as provided by the lease agreement, payment for damage to the property (with the exception of reasonable wear and tear), and payment of other charges provided by the lease agreement. If the landlord has used any money from the deposit, the landlord must list these amounts in a written notice to the tenant. The landlord must send the deposit and the list of any expenses to the tenant within 45 days.

Landlords and tenants often have disputes over the return of security deposits. Although often the security deposits are rightly kept by landlords because of substantial damage caused by tenants, some security deposits are kept without any good reason. This may happen in the case of students who will move far away after graduation. The obvious key to a full return of the security deposit is to avoid damage and to comply with the lease. Problems can happen, however, even to excellent tenants.

If there is any reason to think that the landlord is not honest, the wise tenant will make a record that will stand up in court if there is a disagreement about the condition of the property. Photographs taken in the presence of a witness may be especially helpful. A photograph or videotape of a wall will show, for example, whether any claimed damage really existed when the tenant moved out.

If a landlord improperly refuses to return all of a security deposit within 30 days after the tenant leaves, the tenant should mail the landlord a written itemized request for it. If the landlord still does not return what is due, the tenant may sue the landlord in General District Court. See Section XII on the Virginia Court System for more information on the General District Court.

Avoiding Problems the Easy Way

The wise tenant solves problems by bringing them to the landlord as soon as possible. Remember that landlords, whether themselves or their agents or managers, are like complaint departments. It’s rough always having people complain. Be reasonable and be nice. A good approach can work wonders. It’s amazing how much more gets done when everyone is on friendly terms.

Be patient and give the landlord a reasonable amount of time to take care of any problems. If you have a complaint, you can tell the landlord in person, by telephone, or through a manager. If the landlord doesn’t seem to care or if the problem is complicated or important, it would be wise to make your complaint in writing and keep a copy. That way, you’ll have a record of what you needed and when you complained. Be sure to date the letter!

Paying Rent

Rent must be paid at the time and place designated by the lease. It also must be paid in the form requested: cash, check, money order, etc. Even if you don’t occupy the property for the entire lease period, you are generally responsible for the rent for the entire period. If you fail to pay the rent when it is due, you will be violating the lease. Depending on the terms of the lease, if a tenant stops paying rent that is legally due, the landlord may choose to take the following actions:

1) Five Day Pay-Or-Quit Notice: The landlord may give you 5 days to pay the rent. You can either pay or move out. If you don’t pay the rent or move out, the landlord may evict you. If you move out, you may not owe rent for any time left in the lease period. If you are considering moving out under these circumstances, you may want to talk with a lawyer to see if you have any duty to pay rent.

2) Unlawful Detainer Warrant: If the landlord shows that you have not paid rent, a court may allow the landlord to evict you. If you are evicted, you are still liable to the landlord for all money owed under the lease.

Late payment of rent on a continuous basis may lead directly to eviction.

Changes in the Rental Agreement

Rent Changes

The amount of rent is set by the rental agreement. Often the lease will permit the landlord to increase the rent under certain circumstances, especially when the rental term ends and the lease is due for renewal. A proposed rent increase must either be permitted in the current lease, if it has a renewal clause, or be the result of a new rental agreement. A written lease or rental agreement may contain a rent escalation clause. A rent escalation clause allows the landlord to increase the rent before the renewal date so long as the landlord complies with the lease’s escalation clause. Before signing a lease, a smart tenant will look for an escalation clause. Escalation clauses are common when the lease will last for a long time.

The law requires advance notice of a rent increase, generally 30 days. Normally, the only limit on how much a landlord may increase the rent will be the lease itself. If the lease doesn’t limit the size of a rent increase, the landlord may ask for any amount. If the tenant doesn’t agree, the tenant may move out when the current lease is finished.

Other Changes

During the rental period, a landlord may impose new rules as long as the rules do not substantially change the terms of the lease, and the changes apply equally to all tenants. Such changes may include parking restrictions, guest registration, or use of common areas such as a pool or clubhouse. The landlord must give written notice of all such changes within a reasonable time.

If the new rules or regulations substantially alter the terms of the lease or rental agreement, they are not valid unless the tenant agrees to them in writing. A tenant has the right to refuse to accept these changes during the lease period. Once the lease expires, however, the tenant must accept the new terms or move out.

New Property Owner

If the landlord sells the property to a new owner, the new owner is bound by the leases that existed at the time she or he buys the property. The original landlord usually is still responsible for any money or property owed to the tenant. Sometimes this obligation is transferred to the new owner, but the new owner and the tenant must consent to this change.

Tenant Obligations

A tenant has an obligation to keep a safe and clean dwelling. The law states that the tenant must:

1) Act and require his or her guests to act in a manner that does not violate the peace and enjoyment of the neighbors;

2) Not deliberately, or negligently, destroy or damage any part of the dwelling, or allow any person to do so, whether the tenant knows the person or not;

3) Abide by the rules in the rental agreement;

4) Exercise reasonable care when using all utilities, facilities, and appliances;

5) Keep all fixtures as clean as possible;

6) Regularly remove all garbage and waste and put them in the proper facilities;

7) Keep the part of the premises that he or she occupies and uses safe and clean; and

8) Comply with all applicable housing and fire codes.

Tenants may install new burglar and fire alarms at their own expense, as long as they do not permanently damage the property. The tenant must also give an extra key and instructions on how to operate all security devices to the landlord. When the lease ends the tenant must remove all such devices and repair any damage, if the landlord requests it.

Landlord Remedies for Tenant Violations

A landlord must notify a tenant in writing of a lease violation affecting health and safety and give the tenant reasonable time to correct the problem. For routine maintenance, this would normally be 21 days. For emergency situations, corrections must be made as soon as possible. If notice is given and the violation is not corrected, the landlord may take the following actions:

1) In the case of physical damage, the landlord may enter the dwelling to make repairs and give an itemized bill to the tenant to be paid with the next rent payment.

2) The landlord may also file a claim for payment and/or eviction in the appropriate local court.

Landlord Obligations

The landlord must keep the property livable (“habitable”). The law states that landlords must:

1) Supply running water, reasonable amounts of hot water at all times, and reasonable heat in season (unless the tenant has independent utilities or the utilities are supplied directly by an independent utility company);

2) Maintain in good and safe working order all electrical, heating, plumbing, sanitary, ventilating, air-conditioning, and other facilities and appliances supplied, or required to be supplied by the landlord;

3) Keep all common areas clean and provide appropriate waste receptacles in common areas shared by two or more dwelling units;

4) Comply with all housing and fire code requirements;

5) Provide locks and peepholes and in properties with five or more dwelling units in one building, and install deadbolt locks and peepholes in any exterior swinging entrance doors (unless the door has a glass panel).

Tenant Remedies for Landlord Violations

A tenant must give the landlord written notification of any lease violation. The tenant must give the landlord reasonable time to correct the violation. The landlord ordinarily has 30 days for routine maintenance problems; emergency situations should be corrected as promptly as conditions permit.

If the tenant wishes to end the rental agreement because of a “material” (significant) violation of either the rental agreement or of standards imposed by the Virginia Residential Landlord and Tenant Act, the tenant must give the landlord written notice of the problem and state that unless the problem is fixed within 21 days, the rental agreement will end on a given date. That date cannot be less than 30 days after the landlord receives the notice. If the problem is not solved, the rental agreement will end on the date given in the notice. If the tenant moves out, he or she is entitled to the return of any security deposit, plus any interest. The tenant also may be able to sue the landlord for damages and in certain cases also may be able to get attorney’s fees. Note that a tenant may not end the rental agreement “for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent whether known by the tenant or not.”

If the tenant wishes to continue living in the dwelling without the problems corrected, the tenant may set up a Rent Escrow Account with the General District Court at least five days before the rent payment is due and pay any rent that becomes due into it. The tenant may NOT just stop paying rent. A Rent Escrow Account is a special account set up by the court to hold the tenant’s rent payments until the dispute between the tenant and landlord is settled. Once the account is established, a hearing is held to determine the validity of the tenant’s claim against the landlord and what to do with the money in the account. The court may decide that the tenant is entitled to keep the rent.

If the tenant believes the landlord has made a misrepresentation or committed a fraudulent act, the tenant may seek relief under the Virginia Consumer Protection Act. This Act allows the consumer to recover actual damages or $500, whichever is greater, and the consumer may also be awarded reasonable attorney’s fees and court costs. See Section VI on Consumer Laws and Information for more information on the Virginia Consumer Protection Act.

Right of Access by the Landlord

Even though the landlord owns the property, during the rental period the landlord ordinarily gives up much of her or his right to enter and inspect the property. The landlord does have a right to enter the property for a proper purpose, such as inspecting the premises, making necessary or agreed to repairs, or making proper alterations or improvements. The lease should spell out what the landlord can and cannot do.

Except in the case of the tenant’s abandonment of the property or an emergency condition within the property, the landlord’s right to enter leased or rented property is restricted. Normally, the landlord must notify the tenant of the landlord’s decision to enter and may only enter at reasonable times. The tenant may not unreasonably withhold consent to the landlord to enter a dwelling for a proper reason. If a tenant refuses to allow access, the landlord may obtain a court order to force access. In such situations, the tenant is liable for any costs caused by the refusal, including reasonable attorney’s fees.

A landlord may not abuse the right of access or use it to harass a tenant. If a landlord uses the right of access for harassment, makes repeated demands for entry, or enters at unreasonable times or in an unreasonable manner, a tenant may immediately seek a restraining order from the Circuit Court. In such situations, the landlord is liable for damages and attorney’s fees.

If the tenant plans to be absent from the property for more than seven days, the law allows a landlord the right to enter the premises at reasonable times to protect the property. The terms of the lease may require that the tenant notify the landlord when the tenant will be absent for more than seven days. If the tenant must do so and doesn’t, the landlord has the right to recover any losses or damages that happen during the tenant’s absence, such as damage resulting from frozen or broken pipes.

Subleasing

Some rental agreements permit the tenant to rent the property to someone else. This is called a sublease, and the tenant’s tenant is called the sublessee. When subletting, the tenant acts almost as landlord, and there should be a written agreement between the tenant and the sublessee.

If the lease allows the tenant to sublease the property, the tenant must tell the landlord, in writing, to whom the tenant will sublet the property. The landlord must approve or disapprove of the sublessee within ten business days after the landlord has received the tenant’s written notice. If the landlord does not respond, the sublessee is considered approved. The tenant is responsible for the lease if the sublessee fails to keep the lease terms. For example, if the sublessee leaves the property before the end of the original lease, the original tenant is responsible for the rent. If a tenant sublets the property, the landlord may hold only one security deposit. Read your lease carefully, however, because many leases prohibit subleasing altogether.

Lease Renewals

A lease usually terminates (ends) automatically on a given date. That date will be in the lease. If the landlord and tenant want to continue the lease, they will normally make a new agreement. That agreement may be entirely new or may be a short agreement to continue the earlier lease until a certain date, perhaps with some changes, such as the rent amount.

Many leases contain a clause that provides for automatic renewal of the lease. If there is an automatic renewal clause, the lease will be continued or renewed under the same terms, unless either party gives proper notice to end the lease. The lease usually gives a certain number of days by which the notice to end the lease must be given, usually 30, 60, or 90 days. If not, Virginia law provides for 30 days’ notice for a month-to-month agreement and 90 days’ notice for a year-to-year lease.

If the landlord wants to renew the lease with changes, such as an increase in the rent, the landlord must notify the tenant in writing. This notice must be given to the tenant on or before the deadline for notice of the tenant’s intent to end the lease. If the tenant agrees to the change, the tenant must send a written agreement to the landlord. If the tenant does not agree to the change, the tenant must vacate (leave or move out of) the property when the lease ends.

Terminating Leases and Rental Agreements

Abandonment

Unless the lease allows a tenant to move out before the end of the lease term, if a tenant moves out before the lease’s end and abandons the property, the tenant usually will be responsible for rent for the time the property remains vacant until the end of the lease.

The landlord must make a reasonable effort to try to find a new tenant. Once a new tenant moves in, the old tenant is not liable for rent, except for any rent the landlord loses (because of a difference in rental rate) until the end of the original lease. The original tenant also is responsible for any other actual losses the landlord had. The tenant may be responsible, for example, for the landlord’s expenses in finding a new tenant and preparing the property for new tenants.

Even if the lease doesn’t specifically address the issue, a landlord may choose to let a tenant out of a lease early without any penalty. If the tenant would like to move early, the tenant should ask for the landlord’s permission and get it in writing.

Termination

Except for a few very special cases, neither the landlord nor the tenant may legally break the lease. All leases must be terminated (ended) according to their terms and conditions. However, the law provides that a lease may be broken if:

1) Violations of the housing code occur that are caused by lack of reasonable care by the tenant, or

2) The tenant is in default of rent, or

3) Complying with a housing code effectively deprives the tenant of use of the rental unit.

Termination of Oral Agreements

Oral agreements may be ended by giving written notice to the other party. An agreement that lets the tenant stay on a week-to-week basis may be ended by giving one week’s notice; a month-to-month arrangement may be ended by giving 30 days’ notice.

Early Termination for Military Personnel

When people who join the armed forces have home leases, the Servicemembers Relief Act (formerly known as the Soldiers and Sailors Civil Relief Act), a federal law, will ordinarily permit them to break the lease in order to be called to active duty if they give 30 days’ written notice and cite the Act as authority. The Act does not help military personnel who made a lease or rental agreement after they joined the armed forces.

Virginia law also has special rules for military personnel. Any member of the armed forces of the United States or of the Virginia National Guard serving on full-time duty or as a Civil Service technician with a National Guard unit may end his or her rental agreement with the landlord if the member:

1) Has received permanent change of station orders to move 35 miles or more (radius) from the rental home;

2) Has received temporary duty orders in excess of three months to depart 35 miles or more (radius) from the rental home;

3) Is discharged or released from active duty with the armed forces of the United States or from his full-time duty or technician status with the Virginia National Guard; or

4) Is ordered to report to government-supplied quarters resulting in the forfeiture of basic allowance for quarters.

Military personnel who rely upon the Act to end a rental agreement early must follow a specific procedure. Tenants must give the landlord a written notice of termination that specifies the date upon which termination will take effect. The termination date must be at least 30 days from the day the landlord receives the notice; the date cannot be more than 60 days before the date of departure necessary to comply with the official orders or any supplemental instructions for interim training or duty prior to the transfer. Prior to the termination date, the tenant must give the landlord a copy of the official notification of the orders or a signed letter confirming the orders, from the tenant’s commanding officer. The last rent payment is prorated, so the tenant only has to pay up until the termination date. If these procedures are followed, the landlord may not charge the tenant liquidated damages.

Note that under the law, the orders to move into quarters do not have to be written. The orders can be oral as long as they are confirmed in writing later. Although 30 days’ written notice to the landlord is necessary, the written confirmation need not be given until the termination date. Anyone planning to end a lease based on this law should consult with a lawyer. Even though the law lets military personnel end a lease early, the law does not excuse military personnel from leaving the property in good condition. If the property is damaged, the tenants will be responsible to the landlord for any repair and replacement costs.

Eviction

A tenant who is forced to leave the property permanently is “evicted.” The law gives the landlord the right to take back (“repossess”) a dwelling unit when the tenant has committed a serious violation of the lease. The eviction process may vary slightly in different areas, but the general pattern is as follows:

1) A violation of the lease occurs, such as the tenant failing to pay rent, disturbing other tenants, or committing physical destruction of the premises, etc.

2) The landlord or agent mails or hand delivers a written notice to the tenant, specifying the act(s) and omission(s) constituting the violation and stating that the rental agreement will terminate as provided in the notice.

3) The landlord seeks to obtain possession of the property by filing a request to have the clerk of the General District Court issue an Unlawful Detainer Warrant to the tenant. This advises the tenant when to appear in court. If the court finds that the tenant has no legal right to the dwelling, the tenant will be instructed to vacate (leave or move out of) the unit (the rented property) by a specific date or face eviction by the Sheriff.

4) If the tenant does not leave voluntarily, the Sheriff may evict the tenant by force and, ordinarily, unless the county or city has designated a storage area for it, have all of the tenant’s furniture and other property placed outside the property. If the property is stored, the evicted tenant must pay reasonable storage fees before he or she can get the property back.

Note that moving out after receiving an Unlawful Detainer notice does not automatically release the tenant from his or her obligations. The court may enter a judgment against the tenant requiring the payment of rent until the rental agreement or lease expires. In some cases, the tenant’s wages may be garnished (the employer takes some of the employee’s money and gives it to whomever the court directs) to ensure payment.

If the violation can be corrected by repairs, payment of damages, or other actions, and the tenant adequately corrects the violation before the date specified in the eviction notice, then the rental agreement or lease will not end. If the notice is for unpaid rent, and the tenant fails to pay the rent within 5 days after receiving the notice, then the landlord may end the rental agreement and take possession of the dwelling unit (the rented property).

The law prohibits the landlord from removing or excluding the tenant from the premises or denying essential services, until the court takes eviction action. A landlord may continue to collect rent during a legal action against a tenant.

If a landlord accepts payment of rent, excluding late rent, with knowledge of a tenant’s rental agreement violations during the period for which rent has been paid, and does so without a written reservation, the landlord cannot end the agreement because of those violations.

Getting Help From the Court

Most landlord-tenant disputes are handled by the local General District Court. See Section XII on the Virginia Court System for more information on the types of courts in Virginia. A person filing a claim is not required to be represented by a lawyer. In some circumstances, however, those who have a lawyer and win may be able to recover reasonable attorney’s fees as part of the court settlement. In order for a landlord to take action in the General District Court, it must be shown that:

1) Appropriate written notice was given to the tenant to correct a violation (i.e. for routine maintenance problems, a 21-day written notification; for emergency situations, sufficient notice to allow corrections to be made as soon as possible); and

2) The tenant failed to correct the violation within the specified time period and/or refused access to the landlord to make the repairs.

In order for a tenant to take action in the General District Court, it must be shown that:

1) A written statement was sent to the landlord specifying the violation(s); and

2) The landlord was given the appropriate amount of time to correct the violations and failed to do so (i.e. 30 days for routine maintenance problems, or reasonable time for serious or emergency violations).

Once the tenant has followed these procedures, a tenant may place the next month’s rent in a Rent Escrow Account with the General District Court. The tenant may NOT withhold rent; all rent must be paid to the escrow account on time.

Retaliatory Action by the Landlord

A landlord may not take retaliatory action against a tenant. Retaliatory action includes increasing rent, decreasing services, or threatening eviction or termination of the lease or rental agreement because the tenant has: (1) complained to a governmental agency responsible for the enforcement of housing and fire codes; (2) made a complaint or filed a suit against the landlord; (3) organized or become a member of a tenant’s organization; or (4) testified in court against the landlord.

A landlord may owe damages to a tenant for any of the above retaliatory actions.

For Further Information

The Virginia Department of Housing and Community Development publishes a handbook containing the current Virginia Residential Landlord and Tenant Act (VRLTA). The handbook also provides information on possible sources of legal assistance for landlord/tenant problems. For a copy of the handbook, call DHCD at (804) 371-7000 or access the DHCD website at http://www.dhcd.virginia.gov.

Mobile Homes

In General

Much of the Landlord-Tenant discussion above applies to the lease or rental of a mobile home. Virginia’s Manufactured Home Lot Rental Act, however, deals specifically with renting mobile home lots.

For purposes of the Act, a mobile home (or “manufactured home”) is a home “which in the traveling mode is 8 body feet or more in width or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein.” A mobile home lot refers to “a section of land within the mobile home park used for the placement of a single mobile home and the exclusive use of its occupants.”

Under the Act, an agreement to rent a mobile home lot must be in writing and signed by the parties to the agreement. Within 7 days after the agreement is signed, the landlord or lessor (the person who rents the lot to the mobile home owner) must give a copy of the Manufactured Home Lot Rental Act, or a statement of its obligations of landlords and tenants, to the home owner.

The rental agreement cannot include a provision forbidding the mobile home owner from selling the mobile home. The agreement also cannot require any “recurring charges except fixed rent, utility charges or reasonable incidental charges for services or facilities supplied by the landlord.” In addition, the landlord may not demand or collect:

1) An entrance fee for the privilege of leasing or occupying a mobile home lot;

2) An exit fee for moving a mobile home from a mobile home park;

3) A commission on the sale of a mobile home located in the mobile home park (unless the tenant expressly employs the landlord to perform a service in connection with such sale and the employment is not a condition or term of the initial sale or rental);

4) A fee for improvements or installations on the interior of a mobile home, unless the tenant expressly employs him to perform a service in connection with such entrance, installation, improvement or sale; or

5) A fee, charge, or other thing of value from any provider of cable television service, satellite master antenna television service, direct broadcast satellite television service, subscription television service, or service of any other television programming system in exchange for giving the tenants of such landlord access to such service; unless the landlord is himself the provider of the service (landlords also may not charge different rents to those tenants who receive any of these services and those who do not).

A landlord can require that the mobile home owner or the company supplying services such as cable television give a reasonable assurance that the service or installation won’t harm the lot or mobile home park. This could include a reasonable security deposit.

Any guests of the mobile home owner or renter (the tenant) have the right to visit the lot without charge or registration. The landlord can set reasonable requirements governing the style, size, or quality of the mobile home, or other structures placed on the mobile home lot. Except for the lease of a new lot (never before rented or leased), however, the landlord cannot limit from whom the tenant may buy his or her mobile home. The landlord cannot restrict the tenant in the tenant’s decision of where to buy or get “goods or services.”

Landlord’s Obligations

The Act requires that the landlord:

1) Comply with laws governing health, zoning, safety, and other matters pertaining to mobile home parks;

2) Make all repairs and do whatever is necessary to keep the mobile home park in a fit and habitable condition, including (but not limited to) maintaining in a clean and safe condition all facilities and common areas provided by the landlord for the use of two or more lot tenants;

3) Maintain in good working order all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by the landlord;

4) Provide and maintain trash receptacles, except when door-to-door garbage and waste pickup is available within the mobile home park; and

5) Provide reasonable access to electric, water, and sewage disposal connections for each mobile home lot.

If the landlord violates these or any other part of the Manufactured Home Lot Rental Act, the tenant can complain to the local City or County Attorney who can, but does not have to, have the courts enforce the law. If the landlord misrepresents something or acts fraudulently in connection with the manufactured home, the Virginia Consumer Protection Act with its damage remedies might apply. See Section VI on Consumer Laws and Information for more information on the Virginia Consumer Protection Act.

Tenant’s Obligations

Under the Act, the mobile home lot renter (tenant) must:

1) Comply with the laws affecting mobile home owners;

2) Keep and maintain the exterior of the mobile home and lot as clean and safe as possible;

3) Place all garbage and other waste in appropriate receptacles, which shall be provided by the tenant when door-to-door garbage and waste pickup is provided;

4) Use all facilities and appliances in the mobile home park in a reasonable and orderly manner, and require guests to do so;

5) Act in a manner that will not disturb neighbors’ peaceful enjoyment of the premises and require guests to do the same;

6) Abide by all reasonable rules and regulations imposed by the landlord; and

7) In the absence of express written agreement to the contrary, only use the mobile home as a dwelling unit.

Ending the Lot Lease

Unless the rental agreement says otherwise, either the landlord or the tenant may terminate (end) a rental agreement that is for a term of 60 days or more by giving written notice to the other at least 60 days before the termination date. If the lease end is because of a change in the mobile home park, including its rehabilitation, a 180-day written notice is required to terminate a rental agreement. The 180-day period cannot be changed in the basic rental agreement. The landlord and tenant can agree in a separate writing for a different period.

A landlord may not evict a tenant by measures such as willfully interrupting gas, electricity, water, or any other essential service, or by removing the mobile home from the lot. A landlord may only evict a tenant for:

1) Not paying rent;

2) Violating the housing code;

3) Violating two or more rules or provisions of the rental agreement within a six-month period; or

4) Violating any rule or provision of the rental agreement or federal state or local law that affects the health, safety, and welfare of other residents in the park.

A resident who has been evicted from a mobile home park has 90 days from eviction judgment to sell the home or remove it from the park. The resident who retains that right will be responsible for payment of all rent accrued prior to the date of the eviction judgment date and any subsequent monthly rent as it becomes due.

Sale of the Mobile Home

Under the Manufactured Home Lot Rental Act, the landlord may not unreasonably refuse or restrict a tenant’s sale or rental of a mobile home located in the landlord’s mobile home park. Prior to selling or leasing the mobile home, the tenant must give notice to the landlord. It is never reasonable for a landlord to refuse because of race, color, religion, national origin, parenthood, elderliness, handicap, or sex, but a mobile home park can lawfully operate an all-adult or all-elderly housing community, or maintain all-adult or all-elderly sections of a housing community.

No Reprisals

A landlord may not increase the tenant’s rent, decrease services, or try to evict the tenant because the tenant has:

1) Complained about the landlord to a government agency in charge of correcting health and safety housing or building codes;

2) Sued the landlord for violating the Manufactured Home Lot Rental Act;

3) Testified against the landlord; or

4) Helped organize or become a member of a tenant’s organization.

IV. VIRGINIA TAX LIABILITY

Income Tax In General

Virginia levies an income tax, much like the federal income tax, on individuals who:

Claim Virginia as their permanent home (domiciliary residents),
Maintain a place to live or are physically in Virginia for more than 183 total days in a year (actual residents),
Move into or out of Virginia during a year (part-year residents), and
Do not fit one of the prior categories, but have income from Virginia sources (nonresidents).

Depending on the residency status, the tax may be based on all or part of income from all sources or only income from Virginia sources. Tax rates currently range from 0% to 5.75%. For 2006, if a single person had Virginia adjusted gross income less than $7,000 or a married couple had combined Virginia adjusted gross income of less than $14,000, no income tax is charged. These rates and amounts are subject to change. Returns are generally due annually on May 1. For additional information about Virginia income taxes, consult the Virginia Department of Taxation website at www.tax.virginia.gov or visit your local commissioner of the revenue.

Members of the Armed Forces and Their Families

Members of the armed forces stationed in Virginia may or may not have to pay Virginia income tax. In general, members who do not claim Virginia as their domicile are not liable for the Virginia income tax on active duty military pay. However, members who do claim Virginia as their domicile as well as non-domiciliary members who have earned income from Virginia sources are liable for the Virginia income tax. Domicile is a legal concept that loosely means one’s permanent home state. It is generally established when an individual lives in and plans to permanently remain in a state. Once a domicile is established, it does not change, despite transfers and moves, until an individual establishes a new domicile. When possible, military personnel should vote in their state of domicile and register their vehicles there in order to avoid unnecessary confusion regarding their chosen domicile. A designated “home of record” is not necessarily a domicile. When in doubt, military personnel should seek advice from their local legal assistance office.

Spouses and dependents of members of the armed forces are generally not exempt from the Virginia income tax. Spouses and dependents must individually determine their residency status and income tax responsibility. It is possible that a spouse or dependent may be considered a Virginia resident, even when the armed forces member is a non-resident. If a military member is not a resident of Virginia, but his or her spouse is, the couple may not file a joint Virginia return, even though they may file a joint federal return.

Sales Taxes

Any person who purchases retail goods in Virginia must pay a sales tax. As of 2007, the general sales tax rate is 5% (4% state tax and 1% local tax). Not all purchases are subject to the 5% sales tax. Some grocery items are taxed at a reduced rate and some items, such as prescription and certain non-prescription medications are totally exempt from the tax. Virginia has also instituted certain sales tax holidays, time periods when the sales tax is suspended, for items such as school supplies, energy star qualified products and hurricane preparedness equipment. The dates and duration of these holidays vary.

V. ELIGIBILITY FOR IN‑STATE TUITION

In General

Tuition at Virginia’s public universities and colleges is much less expensive for Virginia’s residents than for out-of-state students. In order to qualify for in-state tuition, the student must fill out an application available from the school in which the student is enrolled and must meet the requirements set forth below.

Student Status

Students are classified as either independent (of family) or dependent (on family). There are special rules for military personnel.

Dependent Students

In order for a dependent student to be eligible for in-state tuition, the student must show that the person through whom he or she is claiming in-state status has been domiciled in Virginia for at least one entire year prior to the first official day of classes. The domicile of a dependent student is presumed to be the domicile of the parent who claims the student as an income tax exemption. “Residency” is often used as the equivalent of “domicile.”

Independent Students

In order for an independent student to be eligible for in‑state tuition, the student must establish that she or he has been domiciled in Virginia throughout the entire year prior to the first official day of classes. The student also must not be claimed as a dependent by anyone living outside of Virginia.

Criteria Used to Determine Residency

Domicile or residency in Virginia can be difficult to prove. Factors that will be considered when a student’s status is decided include: (1) whether there has been continuous Virginia residence for at least one year prior to the first day of classes; (2) the state to which income taxes are paid; (3) the state that issued the student’s driver’s license and registration; (4) voter registration; (5) employment (full time, one year prior to enrollment); (6) property ownership; (7) sources of financial support; and (8) any economic relationships with Virginia and other states. An individual living in Virginia for the sole purpose of attending school in Virginia is not treated as a Virginia resident.

It is up to the student seeking in-state tuition to prove that he or she qualifies. Each school has an appeals process for those students who have been declared ineligible for in-state tuition. The final decision will be made available, in writing, to the student who is appealing. If, after reviewing the administrative decision, the student is still not satisfied, the student then has the right to present his or her case to the appropriate Circuit Court for consideration. Any student who knowingly provides false information on the in-state tuition application will be charged out-of-state rates and may be subject to dismissal from the school.

Military Personnel

Virginia law provides exceptions for active duty military personnel. If an individual on active duty chooses to establish Virginia as her or his place of domicile, the one-year residency requirement will be waived (not required) as long as the other criteria for establishing residency are proven adequately.

Family Members of Active Duty Military Personnel

All dependents of active duty military personal, or activated or temporarily mobilized reservists or guard members, assigned to a permanent duty station or workplace geographically located in Virginia and who reside in Virginia are eligible to receive in-state tuition in Virginia. If the student is unable to meet the requirements, however, the student may still be entitled to in-state tuition if a parent or spouse is a member of the military residing in Virginia pursuant to military orders but who claims another state as their official residence; and either

1) One parent is not on active duty in the armed forces, and the non‑military parent has been employed full time for at least one year prior to the first day of classes, resided in Virginia, and has claimed the student as a dependent for Virginia and federal income tax purposes; or

2) The student’s spouse is on active duty in the armed forces and, for at least one year prior to the first day of classes, the student has resided in Virginia, been employed full time, and paid income taxes to Virginia.

Students Enrolled in Special Programs

Students enrolled in certain programs designated by Virginia may be eligible for in-state tuition. These programs include:

1) Any programs designated by the State Council of Higher Education, if the student is a resident of a state that is a member of the Southern Regional Education Compact offering reciprocal privileges for Virginia students participating in similar programs in that state; or

2) Any student from a foreign country enrolled in a school-approved foreign exchange program during the time that an exchange student from the state school is enrolled overseas and receiving similarly discounted tuition at that school; or

3) Any high-school or magnet-school student not otherwise eligible for in-state tuition status who is taking courses designed as part of the school’s curriculum in a community college and for which the student can obtain high-school and community-college credit pursuant to an agreement between the two schools.

VI. CONSUMER LAWS AND INFORMATION

In General

This section covers, in a very general way, several different aspects of consumer protection under Virginia law. As with the other sections in this guide, it is not meant to be all-inclusive or exhaustive, but will touch on broad areas which affect most people.

If, after reading through this section, you feel you have a problem that may be protected by law or that your rights as a consumer are being violated, try to work it out with the other party involved. In the long run, self-help is often much faster, less expensive, and more pleasant than legal confrontations. If attempts to resolve the problem yourself fail, however, it may be wise to consult an attorney. If a substantial sum of money or property is involved, you may wish to consult a lawyer before trying to solve the problem yourself.

The best advice, tried and true, is caveat emptor, or “buyer beware.” Be a smart consumer and exercise caution when making purchases and signing contracts. Take the time to read the fine print, and if you are in doubt, ask questions. It is much easier to prevent problems before they arise than it is to solve them later. Remember, there is no such thing as a free lunch. If a deal seems too good to be true, it probably is. You generally get what you pay for, so if you buy cheap, you often get cheap. The ultimate burden of protecting your rights rests with you, the consumer.

Keeping this advice in mind when making purchases will help keep you out of trouble in most cases. Salespeople will try to sell you products. That is their job, and often they are looking out for themselves—despite anything they might tell you or promise you. Salespeople will often play upon your emotions or lack of knowledge to talk you into buying things you do not need or cannot afford. Two important rules to remember are not to buy items based on emotion and not to let yourself give in to pressure from a salesperson. Think about what you are buying, whether you need it, and whether you can truly afford it. These items were there yesterday, and likely they will be there tomorrow, no matter what the salesperson might tell you. Saying “no” is a powerful tool. Learn how to use it. Learn to walk away and think about major purchases for several days before making a decision. Talk with friends and comparison shop for the best prices. Spend wisely. In the end, you will be glad you did.

Deceptive Practices: The Virginia Consumer Protection Act

Virginia law protects consumers from deceptive and fraudulent practices by sellers and lessors. The protection covers you if you buy, lease, or even see an advertisement for goods or services, including transactions in real property (land and buildings), and also some purchases of goods or services that enable you to run a business out of your home.

Generally, the law prohibits sellers and lessors (people who rent property to others, like landlords) from misrepresenting the quality or nature of goods or services. For example, used or irregular goods must be advertised that way—not as new. Sellers and lessors may not misrepresent the price. A seller, for example, cannot make misleading comparisons with a competitor’s prices.

Merchants must display a visible sign stating any limitations on the return or exchange of goods or services, unless the merchant is a retail merchant who has a policy of providing cash refunds or credit to the purchaser’s credit card account for the return of defective, unused, or undamaged merchandise upon presentation of proof of purchase up to twenty days after the date of purchase. This requirement does “not apply to sale merchandise which is obviously distressed, out of date, post season, or otherwise reduced for clearance; nor does this [rule] apply to special order purchases where the purchaser has requested the supplier to order merchandise of a specific or unusual size, color, or brand not ordinarily carried in the store or the store’s catalog . . . nor [to] . . . a transaction for the sale or lease of motor vehicles, farm tractors, or motorcycles. . . .”

Finally, contracts for the sale or lease of goods or services cannot include a clause that imposes automatic penalties or stops the buyer or renter from raising any available legal defenses if the contract is claimed to have been broken by the buyer or renter.

A person who is hurt by practices forbidden by the Virginia Consumer Protection Act may be able to sue in court to recover any actual damages or $500 (whichever amount is greater), punitive damages (damages awarded if there was a deliberate violation of the law), and reasonable attorney’s fees and court costs. To file a lawsuit under the Act, a person must do so within two years of the violation of the law.

Untrue, Deceptive, or Misleading Advertising

Deceptive advertisements are illegal. These include: (1) advertisements that contain a fact or promise that is untrue, deceptive, or misleading, or (2) a method, device, or practice which is untrue, deceptive, or misleading. If either of those tactics is used to persuade a person to make a purchase or enter into an obligation, the person or business responsible for the advertisements is guilty of a Class 1 misdemeanor.

Bait and Switch Advertising

This is a form of untrue, deceptive, or misleading advertising. It is against the law for a business to advertise a product or service but not intend to sell it at the price and terms advertised. It is not a violation of the law if the advertisement clearly states that there is a “limited number or amount” of the item and the advertisement states the number or amount for sale.

A person who is a victim of bait and switch advertising may sue the business for damages or $500, whichever is greater. Attorney fees and court costs may also be paid as part of the settlement.

Automobile Repair Problems

Repair Costs: The Automobile Repair Facilities Act

Upon a customer’s request, an auto repair shop must provide a written estimate of costs, including the work needed, labor, parts, and the amount of time needed to make the repair. Work should not begin until the customer has seen or heard the estimate and given permission for work to begin. Virginia law requires that a sign be posted explaining the right to an estimate.

The shop may not charge more than 10% above the estimate, unless the excess work has been permitted in advance. If the motor vehicle is over 25 years old, however, the shop may not charge more than 20% above the estimate. The shop may charge a reasonable fee for preparing the estimate, provided the shop discloses any charges to the customer in advance.

After the repair work is completed, an invoice must be given to the customer that lists the work performed, the charges for parts and labor, warranty information, and identification of any parts that were used, rebuilt, or reconditioned.

Note that these requirements apply only when the customer requests a written estimate. Also, jobs costing less than $25 are exempted. Complaints about automobile repair shop practices should be brought to the Virginia Office of Consumer Affairs, which can be reached at (800) 552.9963 or http://www.vdacs.virginia.gov/consumers.

Unsuccessful Repairs: The Lemon Law (The Motor Vehicle Warranty Enforcement Act)

Automobiles that have continuing repair problems are often called “lemons.” Like other states, Virginia has a “Lemon Law” to protect buyers from these cars. Virginia’s Lemon Law applies to the purchase of new cars and used cars, so long as the used cars are still covered by the manufacturer’s warranty.

Generally, the Lemon Law protects an automobile buyer or lessee for the first 18 months after delivery. If a particular defect continues to exist after a reasonable number of attempts to correct it during the 18 month period, the consumer is entitled either to a replacement vehicle or a refund, at the consumer’s choice. Refunds must include refund of incidental expenses, such as sales tax, registration, and title fees.

Usually, three failed repair attempts will allow the buyer to use the Lemon Law. The car’s defect need not affect its driveability, but it must impair use in some way, reduce the car’s market value, or decrease safety. In the case of serious safety defects, one failed repair attempt may give the consumer the right to choose replacement or refund.

To use the Lemon Law, the buyer must first notify the manufacturer of the defect in writing. Manufacturers may have informal settlement procedures for solving legal problems, which the consumer may use, but does not have to use. The consumer also may sue directly. If successful in a lawsuit, the consumer may recover attorney’s fees, expert witness fees, and court costs. A lawsuit must be brought before the end of the 18 month period from delivery of the vehicle, unless informal settlement activity is used, in which case the consumer may be entitled to 12 additional months to bring suit, should the informal process fail.

Door-to-Door, Telephone, and Fax Sales: The Virginia Home Solicitation Sales Act

The Virginia Home Solicitation Sales Act deals with the sale or lease of goods or services at a place other than the salesperson’s store or office. The Act deals with sellers who come to the home, call on the phone, or contact the buyer by other electronic means, such as a fax machine. The Act does not deal with sales through the mail, sales or leases of farm equipment, cash sales of less than $25, or a sale or lease that has been negotiated previously.

“Goods” are defined by the Act as tangible personal property (like a vacuum cleaner) and also includes certificates exchangeable for other goods or services (like a gift card or gift certificates). A buyer of goods covered by the Act has the right to cancel a home solicitation sale until midnight of the third business day after the day the buyer signs the agreement or offer to purchase (Sundays and state holidays are not counted as business days). To cancel, the buyer must give written notice to the seller at the address stated in the contract agreement. If the buyer cancels by mail, the law assumes that notice is given when the letter of cancellation is deposited in a mailbox with proper postage and the correct address as given in the contract.

The seller must give the buyer a complete receipt or have the buyer sign a contract. The contract must state the date of the transaction. The seller also must give the buyer a written statement of his or her rights and a notice of cancellation. If the seller does not provide the buyer with these documents, the buyer may cancel at any time by notifying the seller in any manner. If the buyer cancels a home solicitation sale within 10 days of the cancellation, the seller must return any payments made or goods traded. The buyer may keep any goods that have been delivered until the seller has returned the payments and/or goods, but the buyer is responsible for taking care of them until that time.

The seller must pick up the goods at the buyer’s home. If the seller does not ask the buyer to return the goods within 20 days after the order was canceled, the goods become the buyer’s property. If the seller misrepresented himself or herself as something other than a seller or lessor, the buyer has 30 days to cancel a home solicitation contract.

A buyer may not cancel a home solicitation sale if the buyer requested the seller to deliver without delay because of an emergency. A request to deliver immediately must be in writing, must be signed by the buyer, and must state that the buyer understands that she or he is giving up the right to cancel. Other than the request for delivery without delay, the seller cannot make the buyer sign anything that gives up the right to cancel. If the buyer does sign such an agreement, it is invalid, and the buyer has the right to cancel the sale.

Repossession

In General

A company “repossesses” property when it takes it back from the person who has it, usually the person who bought it. A company cannot repossess something that has been sold outright. A company can repossess property, however, if the property was sold through installment payments, the seller has kept what is called a “security interest,” and the buyer has not made the payments as required.

Unless a purchase contract states that the seller may repossess the goods if the buyer fails to make timely payments, repossession will not be allowed as long as the payment, along with any late fees, is made within ten days of the day the payment was due. A late fee may be charged by the seller as long as the late fee requirement is specified in the contract. The late fee cannot exceed 5% of the payment. Payments are considered “timely” if made by the date fixed for payment or within 7 calendar days after the fixed due date.

Military Personnel

The Servicemembers Relief Act (formerly known as the Soldiers and Sailors Civil Relief Act) provides some help to a member of the armed forces who makes an installment payment contract before joining the military and after joining the military cannot make the payments. An armed forces member with this problem should see a lawyer at the local Legal Assistance Office.

Obtaining Credit; “Fixing” or Improving Bad Credit

Credit and Credit Cards in General

Speaking generally, the phrase, “having credit” means that a person can borrow money. A person with a good “credit rating” can usually get bank credit cards and borrow money from a bank. A person’s credit rating actually refers to how safe it seems for the bank to loan the person money. Someone with a good credit rating can usually be trusted to pay the money back; someone with a bad rating is a risk.

Strangely enough, a person who has never borrowed money may find it hard to establish a credit rating. After all, a person who has always paid cash has no visible “track record” for a bank or credit card company to look at. The best way to get a good rating is to borrow a small sum of money from a bank and pay it back on time. These days, the easiest way is to get a credit card and use it responsibly, making all payments when due. Today, some banks will issue credit cards with low spending limits to young adults. What the new credit card holder does with the card will help establish that person’s first credit rating. A bank may be more likely to issue a credit card to someone who has a savings or checking account than to someone who does not.

There are a number of types of credit cards. Some require that all charges be paid in full by the end of each period (usually 30 days). Other cards will allow partial payments, with the unpaid amount being carried (rolled) over into the next billing period. When this happens, the card holder pays interest on the unpaid amount. Although most credit cards allow the card holder to pay off monthly charges in full without interest, some cards charge interest as soon as a charge is made. Credit cards with very low interest rates are more likely to be this type of card. A person should look into this type of card very carefully before deciding to get one. A card company that does not require an annual fee initially may charge a fee after the first six or twelve months. When a “debit” card is used, money for the purchase is deducted immediately from a person’s bank account. Some other types of credit cards will give back to the buyer a small percentage (rebate) of any purchase made with the card.

If a credit card is lost or stolen, the owner should report that to the credit card company immediately. This allows the credit card company to freeze your account and will prevent others from making charges to your account. If someone has already used your card, you may not be responsible for the charges. Ordinarily, a person who has lost a card in good faith may only be responsible for a small sum at worst. However, it is critical that a credit card holder sign the card on the back when it is received. Otherwise, a lost or stolen card may be a major problem.

Offers to “Fix” or Improve Bad Credit

One of the well-known consumer “aids” to hit the market are companies that, for a fee, offer to help people with no credit or bad credit improve their credit rating and/or obtain credit cards. Often these “services” are actions that can easily be done by the consumers themselves without having to pay a fee.

If you want to improve your credit rating, start by getting a copy of your credit history. Copies of your credit report can be obtained either by writing to credit reporting agencies or visiting their websites, requesting a copy of your credit history, and paying a fee. If you have been denied credit recently based on one of these reports, the credit reporting agency must provide you a report for free. Under the federal Fair and Accurate Credit Transactions Act, you can receive one free report per year from each of the three major national credit bureaus. For more information, go to www.annualcreditreport.com.

The report will show your credit history, as reported by the businesses you have dealt with in the past. This includes the timeliness of your payments, the number of times your payments were late, and any defaults (non-payments). The report may also include favorable credit information. It may also give a ranking of your credit standing as established by the credit reporting agency. Businesses use the ranking to determine whether or not you are a good credit risk.

There are various time limits on how long certain information may be left on your report. You may be able to have older information removed. It may also be possible to contact businesses to which you owe money and offer to pay them what you owe in order to improve your credit status.

Another way of establishing credit or obtaining credit cards is to open a savings account at a bank. You may then be able to obtain a credit card with a credit limit based on the amount in the savings account. This is called a “secured” credit card. This will give you the opportunity to show you are responsible and will make the payments on time. However, you may not be allowed to withdraw your money from the savings account as long as you have the credit card.

Often, these are the only “services” provided by credit improvement companies. The fees, which are often substantial, pay them to handle the paperwork for you, but the results are usually the same as if you do it yourself.

In Virginia, if you deal with a business that offers to improve your credit rating and credit history, or says it can obtain credit for you, the business is controlled by the Virginia Credit Services Business Act.

A credit services business is a business that, for a fee, offers to improve a person’s credit record or obtain an extension of credit. This does not include businesses that regularly provide credit reports for a third party, such as a bank.

Any business that is covered by the Act must be registered properly with the Commonwealth of Virginia. The credit services business must give the name and address of a bank or company that has provided a bond or letter of credit to the business. This bond or letter of credit is for your protection should the credit services business do something wrong. You may ask to look at the registration to ensure that the business is properly registered.

The credit services business must supply you with an information statement before it provides any services and before you pay any money. This statement contains important information about your rights in dealing with a credit services business. You will have to sign this statement before you use the credit service. It is important that you read this statement. It must state that:

4) You have the right to see any information a consumer reporting agency has about your credit history. (This is required by the Federal Fair Credit Reporting Act);

5) You may obtain this report for free if you request it within 30 days of receiving notice that you have been denied credit;

6) You may obtain this report for a small fee any other time;

7) You may dispute the completeness or accuracy of the information contained in that report.

8) The information statement must give a complete and detailed description of the services the credit services business will perform and the amount you will have to pay. The statement must also contain the following notice:

IMPORTANT NOTICE: YOU HAVE NO OBLIGATION TO PAY ANY FEES OR CHARGES UNTIL ALL SERVICES HAVE BEEN PERFORMED COMPLETELY FOR YOU.

The credit services business may not ask for payment from you until it has performed all of the services it has promised. A credit services business may not charge you for simply referring you to a business that provides credit for the general public.

If, after you read the information statement, you decide to use the credit service, they will ask you to sign a contract. The contract also must contain a complete and detailed description of the services that will be provided. It must state the payment terms, including the total amount you will have to pay. Remember, the business must completely perform the services before you are required to pay anything. The contract must also state that you may cancel the contract, without any penalty, anytime before midnight of the third business day after you have signed, and any payments you made will be returned to you within 10 days. This notice must be in bold letters as follows:

YOU, THE BUYER, MAY CANCEL THIS CONTRACT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THE TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR THE EXPLANATION OF THIS RIGHT.

A Notice of Cancellation must be attached to the contract. If you want to cancel the contract, you must sign and return the Notice of Cancellation to the business.

If you have entered into a contract with a credit service that does not meet these requirements, your contract is void (invalid and unenforceable) and you will not have to pay. If the credit services business violates any of these requirements, it may also be held liable and be forced to pay you damages (money) and reasonable attorney’s fees if you take legal action. There is a time limit of two years during which you can bring a lawsuit against the business.

Protection of Personal Information and Privacy: Social Security Numbers

Unless specifically authorized by another law, Virginia privacy law prohibits people and businesses from intentionally communicating an individual's social security number to the general public. In addition, a person or business cannot include an individual's social security number on any card required for the individual to access or receive products or services provided by the person business, or require an individual to use his social security number to access an Internet website, unless a password, unique personal identification number or other authentication device is also required to access the site.

Similarly, if a business offers consumer accounts (for example, a bank account or grocery store frequent-shopper account), the law prohibits using a person’s social security number as the account number if the person requests, in writing, that the account number be different.

Prizes and Gifts

Direct marketing gives merchants easy access to our mailboxes, email addresses, and telephone numbers. Letters, emails, and phone calls advise us that we could be the next million dollar sweepstakes winner or the recipient of a new car, $10,000, or a lovely digital watch. Better communications have allowed solicitors to reach us with personalized messages declaring our victories:

Mr. Smith! You may have won a vacation to Florida!

You have been chosen as one of the five GRAND PRIZE WINNERS!

Rarely do we actually get something for free, although many people are very excited when they get one of these impressive-looking letters. Businesses use offers of gifts as bait to get you to look at the products they are selling or renting. Although there are legitimate businesses using these sales techniques, many are fraudulent or untrustworthy organizations. Some may charge large fees to obtain the “prize” or require that you make a “900” call which turns out to be very expensive. Vacation offers may only consist of a free hotel stay, with transportation and all other costs payable by you (at a very high cost).

The consumer’s first defense against rip-off offers like these is to read them very carefully. Usually the offer says, “You may have won,” rather than “You have won.” If the offer seems too good to be true, it probably is. The General Assembly of Virginia has tried to answer the growing problem of fraud and misinformation connected with prizes and gifts by passing the Prizes and Gifts Act. The Act protects consumers from getting ripped off by fraudulent businesses. It also provides guidelines for legitimate businesses that want to use this sales technique. The Act states that no one selling goods or services may tell another person that she has won anything or is the winner of a contest unless (1) the winner of the prize or gift is given the prize or gift without any obligation, and (2) the prize or gift is delivered to the winner at no expense to her or him, within 10 days.

The law also requires the following information to be clearly stated in written offers of gifts or prizes: (1) the actual retail value or actual cost of the gift or prize; (2) who is conducting the contest or promotion; (3) the actual number of gifts or prizes to be given; and (4) the odds of receiving each prize or gift.

In an oral solicitation (when someone speaks to you), the seller must tell the consumer all of the information above before asking the consumer to enter into a sale or lease. If the recipient must call a pay-per-call telephone number (a 900 number) to receive the prize or gift, the contest promoter must state what the call will cost.

No solicitor who offers gifts or prizes can require the consumer to pay any money, or buy or lease any product or service, unless the nature of the charge(s) are clearly stated, including shipping and handling charges. If the consumer must pay a shipping charge to receive a gift, the charge may not:

5) Exceed the cost of postage or delivery charge for a similar sized item going to a similar geographic area; or

6) Exceed the exact amount for shipping paid if shipping is completed by an independent shipper/supplier; and

7) Any handling charge cannot exceed the lesser of 5 dollars or the actual cost of handling.

Any consumer who suffers a loss due to a solicitor’s violation of this statute may bring a lawsuit in court to enforce the violated provisions. If the consumer is successful, he or she can recover reasonable attorney’s fees and court costs.

This law puts solicitors on notice, but it is up to you as the recipient of their phone calls and direct mail offers to check that the above guidelines are met. Be cautious; read the fine print and interpret the language. Most especially, look at the odds on the back of offers that tell you are guaranteed a free gift if, for example, you visit a time-share property development. Odds of close to 1:1 mean that you likely will receive the specified gift if you go. Note that even though the gift may sound good, it may not be as valuable as you think. The value the company places on that gift may be much higher than the value you would put on it.

Always remember that, for the most part, the purpose of offers of gifts and prizes is to get you to consider buying or leasing some other item or property or service.

Unsolicited Goods

If a person receives merchandise from a person or business that has not been ordered or requested, he may consider the merchandise to be an unconditional gift (a gift with “no strings attached”. The law states that if a person receives unsolicited merchandise, he has no obligation to return what was sent or to pay for it. The merchandise may be disposed in any manner that person chooses.

Lease-Purchase Agreements / “Rent-to-Own”

A lease-purchase agreement (commonly called a “rent-to-own” agreement) provides for the rental of personal property such as appliances or televisions, with the chance for the consumer to eventually purchase the property.

A lease-purchase agreement can be a good idea if the consumer does not have enough money to pay the full price of the goods right away or if the consumer wants to try them first. A lease-purchase plan is basically a payment plan in which the consumer pays interest on the part of the price not yet paid. Because of this, buying property through a lease-purchase plan is nearly always more expensive than just buying the property outright. Be warned: lease-purchase plans can be very expensive compared to a simple purchase.

The contract is usually set up for an initial (beginning) period of four months or less. After the initial period, the customer may automatically renew (continue) the contract by continuing to make payments. If the customer makes payments that amount to the total price of the property, she or he becomes the owner.

An individual who wants new home appliances or furnishings may wish to enter into a lease-purchase agreement because, unlike other long-term sales agreements, a lease-purchase agreement allows the individual to end the contract at any time after the first period without further obligation. Unlike regular rental agreements, a lease-purchase agreement allows the individual the opportunity to become owner of the leased property.

The Virginia Lease-Purchase Agreement Act deals with the legal issues surrounding lease-purchase agreements. Under the Virginia Lease-Purchase Agreement Act, the lessor (the person who provides use of the property and receives lease payments) must give the customer certain information. The information must be given before the customer signs the purchase agreement and must be “clearly and conspicuously in writing” above the line for the consumer’s signature. The lessor must disclose the following information:

1) The total number of payments to be made, the total monetary amount of all payments, and when payments must be made before the customer will own the property;

2) That the customer does not own the property until all payments are made;

3) That the consumer is responsible for the property if it is lost, stolen, destroyed, or damaged;

4) A description of the property, sufficient to identify it;

5) A description of any existing damage to the property;

6) The cash price of the property (if the lease involves five or more items as a set, then the cash price of the set);

7) The total amount of initial payments the customer has already paid or must pay before the signing of the lease or delivery of the property (whichever is later);

8) Whether the total amount of the payments includes other charges such as fees for late payment, default, pickup, or reinstatement;

9) An explanation of the consumer’s option to purchase (including an early purchase option and the price or method for determining the price);

10) The identity of the party responsible for maintaining or servicing the property while it is being leased and a description of that party’s responsibility;

11) The date the contract was signed and the names of the lessor and the consumer;

12) That the consumer has a right to cancel the contract without any penalty; and

13) That the consumer has a right to reinstate the agreement.

If the consumer fails to make rental payments, the rental company is allowed to repossess the property. The Virginia Lease-Purchase Agreement Act, however, allows the consumer to reinstate the agreement without losing any rights. This means that the rental company will not cancel the contract if the consumer pays all late payments, any late fees, and the pick-up and delivery fee (if the rental company has already taken back the goods). If the consumer has paid less than two-thirds of the total payments needed to acquire ownership, the consumer may reinstate the contract in not less than twenty-one days after the rental company has taken the property. If the consumer has paid two-thirds or more of the total of payments necessary to acquire ownership, the consumer may reinstate in not less than forty-five days after the property has been repossessed.

A renegotiation occurs between a consumer and a lessor when an existing lease-purchase agreement is satisfied and replaced by a new agreement. A renegotiation, under the Virginia Lease-Purchase Agreement Act, is considered a new agreement requiring all new disclosures. The following events are not considered renegotiations for which new disclosures are required:

1) The addition or return of property in a multiple-item agreement or the substitution of the lease property, if in either case the average payment allocable to a payment period is not changed by more than 25%;

2) A deferral or extension of one or more periodic payments or portions of a periodic payment;

3) A reduction in charges in the lease or agreement;

4) A lease or agreement involved in a court proceeding; or

5) The extension of any existing lease-purchase agreement.

The Virginia Lease-Purchase Agreement Act forbids lease-purchase agreements to contain any confession of judgment (a legal device that lets the seller/lessor collect money from the buyer/lessee as if the seller/lessor had gone to court and won a lawsuit against the buyer/lessee), negotiable instruments (documents like checks or promissory notes which transfer money), security interests or any other property interest claim except in those goods delivered by the lessor pursuant to the agreement, wage assignments, waivers by the consumer of claims or defenses, or provisions authorizing the lessor to enter upon the consumer’s premises or to commit any breach of the peace in the repossession of goods.

Health Clubs and Gyms

Health spas and clubs have become very popular over the past decade. Unfortunately, as health clubs have become more popular, people who join these clubs have run into problems. All too often, people have bought long-term club memberships only to have the club suddenly close. The Virginia Health Spa Act was passed by the state legislature to protect consumers against unfair and dishonest membership contracts. The law defines a health spa as any organization that sells memberships for the use of exercise, sauna, or other gym facilities. Facilities not covered by the Act include:

1) All non-profit organizations such as the Young Men’s Christian Association (YMCA) or Young Women’s Christian Association (YWCA);

5) Any private club owned and operated by its members;

6) Organizations that primarily teach self-defense;

7) Any facility owned or operated by either the federal government or the Commonwealth of Virginia;

8) Any nonprofit public or private school, college or university;

9) Any residential, community, or subdivision club, providing swimming and tennis facilities which derives 80% of its membership from residents of a community or subdivision; and

10) Any facility owned and operated by a private employer exclusively for the benefit of its employees, retirees, and family members and which facility is only incidental to the overall functions and purposes of the employer's business and is operated on a nonprofit basis.

Gyms often advertise pre-payment programs in which a person buys a multi-year membership contract. Given the cost of membership, such a purchase might be a smart decision if the multi-year deal has a large enough discount. The contract, however, must meet the requirements of the Act. If it does not meet these requirements, the contract may be voidable (subject to cancellation by the buyer).

The contract must state the date on which the gym will open, if it is not already open. The opening date may not be more than twelve months from the date the contract is signed. The contract must be in writing, be signed by the buyer, state the date signed, and state the beginning and ending dates of the membership. It also must state if the customer must pay any initiation fees. Finally, after both parties have signed the contract, a copy of the contract must be given to the buyer.

The contract must contain information about the buyer’s right to cancel and must state that the buyer has the right to cancel the contract, without penalty, within 3 business days after the contract was signed. If the contract is canceled within the 3-day period, the health spa or club must refund the entire amount paid. No health spa or gym contract may be sold for a period longer than 36 months, including any renewal period, except under very specific limited circumstances.

If the health spa or club moves or goes out of business, it must provide another facility within five driving miles of the original site. If the health spa does not provide another facility, the buyer has the right to cancel the contract, and the health spa or club must partially refund the membership fee. The refund will be pro-rated, so that the buyer receives a refund proportional to the amount of time remaining on the membership. For example, if the customer paid $600 for a one year membership, and the health spa goes out of business after four months, the spa will refund $400.

The same pro-rated refund applies if the buyer cannot use the facilities due to death or illness. The spa or club has the right to require a physical examination to determine the buyer’s health.

Finally, the contract must state that notice of cancellation must be in writing and either be delivered in person or by certified mail, return receipt requested, to the spa address in the contract.

Campground Memberships

During the last few years, many people have bought memberships that give them the right to use privately owned campgrounds located within Virginia. Sometimes these memberships have been sold by salespeople using high-pressure tactics, and buyers have not gotten exactly what they expected.

In order for a membership camping operator (a person or business selling camping memberships) to offer to sell any membership camping contracts, it must be registered with the Commissioner of the Virginia Department of Agriculture and Consumer Services. These campground memberships are governed by the Virginia Membership Camping Act. Under the Act, campers in Virginia may join membership campgrounds by entering into a contract with the operator of the campsite. This agreement allows members to use the campsites and facilities available at the campgrounds.

A valid membership camping contract must include the contract’s effective date (when the contract officially begins), the names and addresses of the campground operators and owners, and a statement of the total fee required for membership. The contract must also include a disclosure statement that lists the rights of campground members, as well as a statement of any court actions regarding the sale of campground memberships in which the campground was a party. Should the membership contract or disclosure statement lack any of the required items, or if either document is not given to the buyer, the contract is voidable (subject to cancellation by the buyer).

After buying a campground membership, the buyer has the right to cancel the agreement by midnight on the 7th calendar day following the date on which the contract was signed. A cancellation clause must be included in both the contract and the disclosure statement in large print, and cannot be waived (given up) by the buyer for any reason. If the buyer should decide to cancel the contract within the time allowed by law, the campground operator must fully refund any payments within 60 days of the cancellation notice. Cancellation must be in writing by certified mail. The cancellation is effective at the time mailed.

Once a membership has been purchased, it may be resold to someone else (a third party). It is the responsibility of the original owner to inform the new buyer of all of the rights and responsibilities attached to the membership. This includes a statement of any fees the new buyer will be required to pay to use the campground and its facilities. It is also the responsibility of the original owner to inform the new buyer that the operator of the campground has the right to refuse to honor the transfer of the membership for any reason.

Salespeople selling campground memberships often offer incentives to possible buyers. This is lawful as long as the advertisement of the incentive includes the value of the gift, the odds of receiving that particular gift, any restrictions on receiving the gift, and the length of the sales presentation the buyer must attend to receive the gift. Furthermore, if the purchaser of a membership has won one of the gifts offered in the incentive program, the salesperson of the membership must provide the gift, a rain check for the gift, or a substitute item of equal market value. The salesperson is not allowed to misrepresent the size, quantity, or value of the gifts offered in the incentive program.

Should the seller of the campground membership violate any of the conditions set forth by the Virginia Membership Camping Act, the purchaser is entitled to a full refund of the membership price and reasonable attorney’s fees, and the campground operators, owners, or private sellers may be punished under the law.

Buying Used Cars

For most people, buying a car is their first major purchase. The chances are very good that for most people their first car will be a used car. A used car can be purchased from an individual or from a business. In either case, there is more to consider when making a purchase than just getting the lowest price.

In Virginia, a dealer may sell a vehicle as “new” only when it meets the following four criteria:

1) It has not been previously sold at the retail level;

2) It has not been used as a rental car, a drivers’ education car, a demonstration model or for personal or business transportation of the manufacturer, distributor, dealer, or any of their employees;

3) It is sold with a certificate of origin; and

4) It comes with a manufacturer’s certificate stating that it meets all federal motor vehicle safety and emission standards.

All other vehicles are considered “used” and must be clearly indicated as such.

Buying a used car raises special concerns. Unlike a new car, a used vehicle is usually not sold with a manufacturer’s warranty, and therefore it is especially important to make sure it is in good condition. Be sure to test drive the car before purchasing it. That includes taking it to a mechanic you trust for a thorough inspection. It is against the law for a dealer to provide false or misleading information to a prospective buyer.

The Federal Trade Commission requires used car dealers to prominently display a large sticker, called a “Buyer’s Guide” in the window of each used car. The Buyer’s Guide must state:

1) Whether the vehicle comes without a warranty (“as is” without any guarantees that the car meets certain standards) or with implied warranties (guarantees that the car meets certain standards that are not specifically described but assumed);

2) If the vehicle comes with a warranty, the specific warranty protection the dealer will give;

3) That the buyer should ask to have the automobile inspected by his or her own mechanic before buying it; and

4) Some of the major problems that may occur in the automobile.

If the dealer does not disclose these facts, the buyer has the right to return the vehicle to the dealer within thirty days and obtain a full refund of all payments made toward the purchase of the vehicle (less any damage to the vehicle incurred while the buyer owned the vehicle and less a reasonable amount for the use of the vehicle, usually a charge of several cents per mile the car was driven).

Make sure that you get the original or a photocopy of the Buyer’s Guide with your contract whenever you buy a used car from a dealer. It should include any changes in warranty coverage that you agreed to with the dealer. These changes become part of your sales contract.

If a buyer successfully sues a vehicle dealer for violation of law but the dealer will not pay the amount owed, the buyer may turn to the Motor Vehicle Transaction Recovery Fund. The Fund will pay any unpaid amount up to $20,000 on a court’s final judgment if the following criteria are met: (1) the judgment is against a licensed motor vehicle dealer (recovery from the Fund does not apply to suits against individual sellers); (2) the buyer suffered loss or damage because of a fraud or violation of Virginia law by the motor vehicle dealer; (3) the claim is filed with the Fund between thirty days and twelve months after the judgment becomes final; and (4) the vehicle was bought on or after January 1, 1989, or leased on or after October 1, 1998.

A used vehicle sold by someone other than a licensed dealer must be checked even more carefully. People other than licensed dealers are not covered by the above laws, so a buyer is only protected by the terms of her or his contract with the seller. To ensure that a buyer is entering a transaction with all the information, he or she should ask the seller specific questions about the car, have a mechanic inspect the car before purchase, and put all statements by the seller in writing. If possible, a buyer should get copies of any repair records the owner may have.

Before purchasing an automobile, a buyer may wish to try to get a limited warranty from the seller. In other words, the buyer and seller may agree (in writing, if possible) that if something goes wrong with the car within a certain amount of time, the seller will pay for its repair. Although the seller may resist giving such a warranty, he or she may be willing to do so in order to sell the car or to get a higher price, especially if the warranty is limited to a particular possible problem. A buyer might, for example, get an agreement that the seller will pay up to $200.00 for any air conditioning repair that is needed in the first 30 days after the sale.

Credit Card Numbers on Checks

When a consumer pays for a purchase with a check, the business is prohibited from recording the consumer’s credit card number on the check.

The business may, however, require a consumer to display a credit card as proof of identification, credit worthiness, or financial responsibility. In these cases, the type of credit card, the issuer of the credit card, and the expiration date of the credit card may be recorded on the check. The business has the right to deny a consumer’s check if he refuses to present a credit card.

There are three exceptions to this law:

1) When the business has agreed with the company that issued the credit card (the “issuer”) to cash checks as a service to the issuer’s cardholders;

2) The issuer has agreed to guarantee cardholder checks cashed by that business; and

3) The consumer has authorized the recordation of his credit card number on his check.

A consumer affected by a violation of this law may sue to recover the greater of $100 or actual damages. In addition, the consumer may be entitled to injunctive relief against anyone who has violated or is violating this law (that is, the court would order the violator to stop its bad practice).

Virginia Referral Sales Act

It is against the law for a salesperson to promise a consumer a discount or rebate in exchange for the names of prospective buyers (other people who might want to buy a product or service). An agreement that is influenced by the offer of a referral rebate is void and unenforceable (if a condition of the rebate is the sale or demonstration to a referred customer). Consumers who enter into these types of contracts are entitled to either keep the goods or services that were purchased and are not obligated to make additional payments to the seller, or they may cancel the arrangement and the salesperson must refund any money paid by the consumer.

VII. FAMILY RELATIONS, MARRIAGE, AND DIVORCE

Minors

Definition of the Age of Majority

The age of majority in the Commonwealth of Virginia is 18. The term “majority” refers to the age at which a person can be held legally responsible for all of his or her acts, may manage his or her own affairs, and is entitled to vote. Under the Virginia Code, the following terms refer to a person under 18 years of age: “infant,” “child,” “minor,” and “juvenile.” The term “infancy” means the state of being under 18 years of age. The term “adult” means a person 18 years of age or older.

Emancipation: Becoming a Legal “Adult” Early

Virginia law provides that under certain circumstances, a minor who resides in Virginia and who is at least 16 (or the minor’s parent or guardian), may ask the Juvenile and Domestic Relations Court for an order of emancipation. “Emancipation” means that for most purposes the emancipated person will be treated legally as an adult. Once a minor is emancipated, he or she:

1) May consent to medical, dental, or psychiatric care without parental consent, knowledge, or liability;

2) May enter into a binding contract or execute a will;

3) May sue and be sued in his or her own name;

4) Is entitled to his or her own earnings and will be free of control by his or her parents or guardian;

5) May establish his or her own residence;

6) May buy and sell real property (such as land or a house);

7) May enroll in any school or college without parental consent;

8) May apply for a driver’s license without parental permission;

9) May marry without parental or judicial consent;

4) May not be the subject of a petition for abuse, neglect, violation of curfew, or as a child in need of services.

Once a child is emancipated, parents have little or no responsibility for the child. This includes any obligation to support the child and legal responsibility for the acts of the child.

The court may emancipate a child after a hearing when the court finds that the minor:

1) Has entered into a valid marriage (even if that marriage has been terminated); or

2) Is on active duty with any of the armed forces of the United States of America; or

3) Willingly lives separate and apart from his or her parents or guardian with the consent or acquiescence of the parents or guardian, and the minor is capable of supporting himself or herself and competently managing the minor’s own financial affairs.

Liability of Minors and Their Parents

A minor can be held legally responsible for a fraud or a tort. A “fraud” is a false representation made through words or conduct that results in harm to another person because that person believed the false statement. The fraud can be done either by misleading or concealing something from the other person. Basically, fraud is cheating or deceiving another person.

A “tort” is a legal wrong committed upon the person or property of another. Although torts and crimes are related, they are very different. A tort is a civil wrong against a private individual that permits the individual to sue the person who committed the wrong (sometimes called the “tortfeasor”), in most cases to recover money damages. A crime, on the other hand, is a wrong against the public and is punished by a criminal prosecution that may lead to jail for the criminal. Torts include assault (offering to hit or improperly touch someone), battery (hitting or improperly touching someone), conversion (theft), slander and libel (saying or writing untrue things about someone), false imprisonment, infliction of mental distress, intentional or negligent injury to another’s person or property, and trespassing.

In addition to being liable (legally responsible) for their own torts, minors are liable for any torts committed by their “agents.” An agent is a person authorized by someone (called the “principal”) to act for them or in their place. The minor is liable, however, only if the agent was doing something for which the minor could have been held legally responsible. In other words, a minor can be legally responsible, for example, for a harm caused by a friend at the request of the minor.

Parental Liability for a Minor’s Acts

Parents bear some financial responsibility for the acts of their minor children that cause harm to other people or their property (“torts”). Although minors are fully liable for their own torts, in many cases they lack the money to pay for them. Parents may be required to pay up to $2,500.00 in damages for willful or malicious destruction of public or private property by any minor living with the parents. If damages to the property exceed the amount recovered from the parents, the owner of the property can try to recover the rest from the minor.

When Minors Sign Contracts

In general, contracts made by a minor are “voidable” (subject to cancellation by the minor). This means that the minor has the choice of being bound by a contract or rejecting it. Unless canceled within a reasonable time after the minor becomes 18, the contract will become valid. To cancel the contract, the minor must return anything received for the contract. If the minor has wasted whatever was obtained from the contract, however, he or she is not obliged to return it. An adult can also affirm or “ratify” (approve) a contract made as a minor. Once ratification has occurred, the contract cannot be canceled.

The most notable exception to the general rule of voidable contracts concerns those made for “necessaries” (necessities) such as food, shelter, and education. Although a minor is not bound by a formal contract for necessaries, the minor is responsible for their reasonable worth.

With the agreement of his or her parents, a minor may bind himself or herself to serve as an apprentice. Parental consent is not required for military enlistment contracts, except that parents may void an enlistment made without their permission until the minor turns 18.

Parental Responsibility and Involvement in Educational Discipline

Parents have a responsibility to help a public school in disciplining their child in order to help maintain a non-threatening atmosphere within the school.

Within the first month of school, the school board must send the parents of each student a notice that describes the parent’s legal responsibilities (described above) and a copy of the school board’s standards of student conduct and compulsory attendance. The parent then must return a signed statement acknowledging receipt of these documents.

Unless school officials decide otherwise, the parent of a suspended student must meet with school officials to discuss improvement of the student’s behavior before the student will be readmitted. A court can fine a parent up to five hundred dollars for failure to meet with school officials after a student’s first suspension, or upon a student’s second suspension or expulsion.

Minor’s Access to Firearms

It is a misdemeanor to knowingly authorize any child under the age of 12 to use a firearm, except under the supervision of an adult. It is also a misdemeanor to recklessly leave a loaded, unsecured firearm where a child under the age of 14 could be endangered by it.

Marriage

Requirements: In General

Virginia law allows only marriages between a man and a woman; same-sex marriages and civil unions are prohibited. Virginia also prohibits marriage between certain people from the same family. This includes anyone who is an ancestor of another, brothers or sisters (including half-blood relations and adoptions), uncles and nieces, and aunts and nephews. Virginia does not prohibit marriages between cousins. In order to marry, neither person may be married to another person; any previous marriages must be legally dissolved (through a divorce) before a new marriage may take place.

In order to marry without a parent’s consent, a person must be at least 18 years old or be an emancipated minor. A minor between 16 and 18 can be married if a parent consents. A party under the age of 16 can be married with court and parental consent if the female to the marriage is pregnant.

License

Every marriage in Virginia requires a license (which costs $30.00) and must be “solemnized” (performed) in a manner prescribed by law. Common-law marriages (where a couple holds themselves out as married and lives together without formal marriage) are not recognized in Virginia; however, a common-law marriage made outside Virginia in a state where it is lawful, is valid in Virginia. The non-recognition of a common-law marriage means that the parties to these marriages do not share in certain rights and obligations of formal “solemnized” marriages.

The marriage license is issued by the clerk of the Circuit Court of any county or city. No blood test is required. A marriage license authorizes the marriage of the parties for a period of only 60 days. If this period elapses without the marriage, the license expires.

A marriage ceremony can be conducted by a minister of any religious denomination who has been duly authorized by order of any Circuit Court to celebrate marriages. In the case of a religious society having no ordained minister, the marriage ceremony can be conducted in the manner prescribed and authorized by the religious society. In addition to the judges themselves, the Circuit Court is also authorized to appoint one or more persons to “celebrate” (perform) marriages, called Marriage Commissioners. Such a person may charge no more than $50.00 for the ceremony plus travel expenses.

Termination of Marriage

Once two people are married, the marriage, including a common-law marriage (recognized by Virginia but from another state), continues until the marriage is ended by death, annulment, or divorce.

Annulments

Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that a marriage is void, which means that it was never legally valid. A divorce terminates the legal status of marriage, whereas an annulment establishes that the marriage never existed legally. Annulments are granted only in very limited situations and cannot be granted only because the marriage lasted only a short time.

An annulment can be granted when the marriage itself could not be lawful, as in the case of a marriage between a brother and sister or when one spouse was lawfully married at the time of the second marriage. An annulment may also be granted if the marriage was the result of fraud or entered into under duress. Other grounds for annulment include:

1) One of the spouses had incurable impotency at time of marriage;

2) At the time of marriage either spouse did not know the other had been convicted of a felony;

3) When, at the time of the marriage, the wife, without the knowledge of the husband, was pregnant by a person other than the husband;

4) The husband, without knowledge of the wife, had fathered a child born to a woman other than the wife within ten months after the date of the marriage; and

5) Prior to the marriage, either party had been, without the knowledge of the other, a prostitute.

In cases in which either party was unable to consent at the time of marriage, or cases involving fraud and duress, an annulment will not be granted if the party applying for the annulment has “cohabited” (lived) with the other spouse after learning of the facts which are the grounds for annulment or if the parties had been married for two years before the spouse sued for annulment.

Sometimes remarriage following a spouse’s death or divorce may end certain governmental benefits. It is possible that an annulment may restore the benefits on the grounds that legally an annulment means that the law treats the marriage as if it never took place. On the other hand, courts have found no right to the reinstatement of spousal support benefits from a previous marriage upon a valid annulment.

Separation and Divorce

Virginia has two types of legal orders that deal with divorce and separation: “bed and board” and “divorce from the bond of matrimony” decrees. A bed and board decree is a partial divorce (often called a legal separation) under which a husband and wife are legally separated from each other, but are not allowed to marry another person. A “divorce from the bond of matrimony” is a divorce that ends the marriage. Either party to a bed and board decree (separation) can ask the court to convert that decree into a true divorce after one year from the time the separation commenced or after 6 months if neither party has any minor children.

Even if both the husband and wife agree that a marriage should be ended, valid reasons prescribed by law, called “grounds,” must exist and be proven to the court’s satisfaction. Different grounds are required for a bed and board decree and a divorce from the bond of matrimony.

Grounds for a bed and board (legal separation) decree include “willful desertion or abandonment,” “cruelty,” and “reasonable apprehension of bodily injury.” Desertion or abandonment takes place when one spouse stops living with the other and intends not to return (intent to “desert”). If the husband and wife agree that one spouse should leave, that is not the same as “desertion.” If one spouse leaves because the other has committed acts that legally amount to cruelty, the spouse who leaves is not guilty of desertion and may be awarded a divorce on the ground of cruelty or constructive desertion. Cruelty consists of acts that tend to cause bodily harm and make living together unsafe. Mental cruelty alone usually is not a ground for divorce in Virginia, unless it is so great that it could cause serious nervous or mental disease or would otherwise affect the person’s physical health. When one year has elapsed from the time of the act of cruelty, grounds then exist for a divorce from the bond of matrimony.

Grounds for a Divorce from the Bond of Matrimony include:

1) Adultery or Sodomy:

Adultery occurs when a spouse has sexual relations with someone other than his or her spouse. Proving adultery can be very difficult. As for all grounds for divorce in Virginia, there must be some other evidence supporting the testimony of a spouse in proving adultery (“corroboration”). The evidence should be strict, satisfactory, and conclusive that the other spouse did in fact engage in sexual relations with another person. In some cases, circumstantial evidence (evidence that does not include an eye witness, photograph, etc.) may be enough, but the evidence must establish that adultery actually took place.

Sodomy is an “unnatural” sex act under the law (usually oral or anal sex). To be grounds for divorce, it must be committed with someone outside the marriage. The standard of proof is the same as that required for adultery.

If the guilty spouse can prove that the accusing spouse condoned (approved) either of these offenses by voluntarily living with the guilty spouse after knowledge of the act, or that the other spouse has been guilty of procurement or connivance by actively encouraging or making it possible for the other to commit the act, a divorce will not be awarded on this ground. In addition, if the act occurred more than five years before the accusing spouse brought suit for divorce, the divorce will not be granted on the ground of adultery or sodomy.

2) Conviction of a Felony:

If the husband or wife has been convicted of a felony and sentenced to confinement (prison) for more than one year and is in fact confined, the other has grounds for a divorce from the bond of matrimony as long as he or she does not live with the guilty spouse after knowledge of the confinement.

3) One Year After Cruelty, Reasonable Fear of Bodily Hurt, Abandonment, or Desertion:

A divorce for cruelty, reasonable fear of bodily hurt, abandonment, or desertion may be awarded to the innocent person one year after the act. The divorce-seeking spouse may first obtain a bed and board decree and have it “merged” (converted to a divorce) at any time after the year’s separation or directly seek a divorce from the bond of matrimony after the year has passed.

4) “No Fault” Divorce:

Virginia permits divorce without a showing of fault when the husband and wife have separated. If the husband and wife have entered into a separation agreement and there are no minor children, either of the husband and wife or of one and adopted by the other, a divorce can be awarded by a court upon a showing that the husband and wife have lived separately and apart without any cohabitation and without interruption for 6 months.

If the husband and wife do not have a separation agreement, or there are minor children, a divorce can be awarded by a court upon a showing that the husband and wife have lived separately and apart without any cohabitation and without interruption for 1 year.

Property Rights Created by Marriage and Divorce

Marriage is a partnership in which both the husband and wife contribute, both in money and non-money terms, to the well-being of the family. Upon divorce or dissolution of the marriage, depending upon the case, the court can divide marital property, require either husband or wife to pay spousal support (monetary payments) to the other, and can also require child support.

Some states in the United States, like California, are “community property states.” A community property state is one in which anything earned by the husband or wife during the marriage belongs to both of them. Virginia is not a community property state. If the husband and wife cannot agree how to divide their property, who will get what will be determined in the divorce court or in a separate suit for distribution of marital property. In a Virginia divorce, jointly owned marital property (as opposed to property that one spouse had before the marriage) will be divided based on many different factors, including who owns it and basic fairness.

Spousal Support

The law of spousal support (sometimes referred to as “alimony”) has changed greatly over the past few years, reflecting society’s concern with improving gender equality. Whether spousal support will be awarded to a husband or wife depends on who caused the divorce, as well as other factors such as their ages, assets, earning potential, and the length and history of the marriage.

Ordinarily, which spouse was responsible for the divorce is not a factor in deciding how much one spouse will pay to the other spouse, since spousal support is not used as punishment but rather to lessen the financial impact of the divorce. However, normally no permanent maintenance or support is awarded from a spouse who had a specific grounds for divorce (for instance adultery or abuse) unless the court determines that a denial of support and maintenance would constitute a manifest injustice. The court may award a lump-sum (single) payment based upon consideration of the property interests of the parties, but this is relatively rare compared to time-based payments.

If a spouse does not pay court-ordered spousal support, the court can order the spouse to pay and can jail the spouse who failed to pay until payment is made. The court can also order spousal support payments, including any amount not yet paid, to be deducted from that spouse’s pay check. Collecting out-of-state spousal support payments from a spouse who lives outside Virginia is more complicated but can be done. A more detailed discussion of spousal support is included later in this section.

Child Custody

Custody refers to the legal right to live with and make legal decisions for children. Custody is often the most important issue in divorces. In determining the custody of minor children less than 18 years of age, the court is guided by one standard—the best interests of the child. Custody will not be given to a parent as a reward or as punishment to a “guilty” parent, but to the parent most able to care for the child.

Factors that may be considered in awarding custody include, among other things, the child’s changing developmental needs, the propensity of each parent to support the child’s contact and relationship with the other parent, the age and mental condition of the parents, any evidence of felony violations by the parents, any history of abuse, the relationship between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring of the child, the home where the child will live, and the child’s wishes (if the child is of a sufficient age, intelligence, and maturity to make such a decision). A court may change custody if there is a material change in any of these circumstances. Visitation rights will normally be set by the court if the parents cannot voluntarily agree upon satisfactory arrangements.

Child Support Obligations

Normally, the parent without custody must contribute to the support of minor children. This obligation could be placed on the mother as well as the father, or both, if a third person has custody of the child. The amount of child support and who will pay it will be set by the court according to amounts specified by law which depend on the number of children and the parent’s income. The court may increase or decrease the amount if either the child’s or the parents’ circumstances change.

If a parent does not pay child support, the court can order the parent to pay and jail the parent who fails to pay until he or she does. The court can also order child support, including any amount not yet paid, to be deducted from that parent’s pay check. Collecting payments from an out-of-state parent is more complicated but can be done. More information about collecting child support is included later in this chapter. Remember that child support is not payment in exchange for visitation. Visitation rights should not be withheld by the custodial parent because child support payments have not been made. Conversely, child support payments should not be withheld by the paying parent if visitation is refused. When the father of the child is not the mother’s husband, paternity (status as the biological father) may have to be established before the father can be made to pay child support. A discussion of paternity is included later in this chapter.

Property Settlement Agreements

A property settlement agreement is a written contract that lists the property rights, duties, and obligations of the husband and wife during separation or after divorce. Courts encourage these agreements, since they may settle the rights of the husband and wife easily without the anger and aggravation a lawsuit can cause. An attorney’s skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable agreement for the parties and their children.

Court Jurisdictional Requirements and Procedures

A court cannot grant an annulment or divorce unless it has jurisdiction (power to act) over at least one of the people involved. Virginia requires that at least one of the spouses must have been an actual bona fide (proper or legitimate) resident and domiciliary of Virginia for at least 6 months before a suit for annulment or divorce. For these purposes, a member of the armed forces who has lived or been stationed in Virginia for 6 months or more, (including having one’s ship home port in Virginia when at sea) before bringing suit counts as a bona fide resident. A service member who is stationed overseas but was domiciled in Virginia for the 6-month period before the overseas assignment counts as a bona fide domiciliary of Virginia.

A service member stationed in Virginia whose spouse brings a divorce action in another state may have special legal protections under the Servicemembers Civil Relief Act. The service member should check with a legal assistance lawyer to see whether the Act applies.

Depending upon the practices in different areas, evidence in a divorce case may be taken in the office of an attorney representing one of the parties, or in the office of a Commissioner appointed by the court to take the evidence, or in a courtroom before a judge. Controversies over custody, child support, and spousal support are usually heard before a judge of a Circuit Court where the divorce suit is brought. In some cases, such matters may be heard in a Juvenile and Domestic Relations Court, independent of the divorce suit.

Attorneys and Fees

While a lawyer is not always needed in a divorce, a lawyer’s help is usually a very good idea. Each spouse should get a separate lawyer if there are issues or property about which the parties may disagree. The same attorney should not represent both sides in a divorce case, since the same lawyer cannot help people who may have different interests.

Anyone who hires a lawyer should discuss fees with the attorney and make satisfactory arrangements to pay them. Depending upon the circumstances, one spouse may be called upon to pay or contribute to the attorney fees and court costs incurred by the other.

Spouses of Military Personnel: The Former Spouses Protection Act

Spousal support and child support awarded by a court can be taken from any source, including earned income (salary, wages, etc.) or pensions. Some state courts have treated pension rights as marital property subject to division. This means that a spouse can be awarded a portion (up to one half) of his or her spouse’s pension benefits as part of a property settlement in addition to spousal support and child support. Military pensions were excluded until the passage of the Former Spouses Protection Act in 1982.

The Former Spouses Protection Act does not automatically award pension benefits to former spouses, nor does it require state courts to make such an award. Instead, it gives state courts the option to make an award of military pension benefits. The Act provides that a court in a divorce action may give the non-military spouse up to 50% of a military pension, unless this is a second or later marriage and a former spouse was also awarded pension rights. If both former spouses are entitled to share the pension, up to 65% of the military pension may be given to the former spouses.

Whether a court has jurisdiction (power to act) under The Former Spouses Protection Act can be a complicated question, and a lawyer’s advice may be necessary. A court does not have jurisdiction to award military pension rights to a former spouse as part of a property settlement unless (1) the military member has his or her domicile within the state or county where the court is located, (2) the military member is a resident of the state or county where the court is located, or (3) the military member consents to the jurisdiction of the court. “Consent,” however, is a technical legal word, and a court sometimes can find consent from actions as simple as a person appearing before the court. A court does not have jurisdiction if the military member is present in the state only because of a military assignment. Note that a court may have jurisdiction to award part of retired pay for purposes of child or spousal support. At the present time, courts in Virginia can treat pension benefits, including military pension benefits, as jointly owned marital property.

The Act also provides that a former spouse who has not remarried is entitled to medical and dental care, commissary and exchange store privileges if he or she had been married to the member or former member of the military for a period of at least 20 years, during which period the member or former member performed at least 20 years of service that is creditable in determining the member’s or former member’s eligibility for retired or retainer pay. If the former spouse remarries, the privileges granted by the Act will end. If that remarriage ends in divorce, annulment or death of the new spouse, however, the benefits reinstate.

A former spouse is also entitled to full health care, but not health insurance. A former spouse, however, is eligible to apply for health insurance from the Department of Defense Continued Health Care Benefit Program. If the former spouse remarries, the health care benefits end. If that remarriage ends in divorce, the health care benefits do not reinstate.

Paternity

When necessary, paternity (a man’s status as the biological father of a child) may be established by a written statement of the father and mother made under oath acknowledging paternity or by genetic tests, including blood tests. Such a test must show at least a ninety-eight percent probability of paternity. A child or mother may sue to establish that a given man is the natural father of the child. A court must decide by “clear and convincing evidence” that the alleged father is in fact the natural father before a finding of parentage can be made. If such a lawsuit is brought, a wide variety of evidence may be admitted in court to show paternity, including medical and other scientific evidence, and evidence of any living arrangements and sexual relations between the mother and alleged father. Such a suit may be necessary in order to obtain child support for the child.

In addition, Virginia recognizes the determination of paternity by any other state for purposes of child support enforcement.

Adoption

In General

Either adopting a child or giving a child up for adoption is clearly one of the most important decisions a person may make. A person considering adopting a child or giving a child up for adoption should consult a lawyer before doing so, because of the many legal matters related to adoption.

Placement of Children for Adoption

The birth parents of a child may place the child for adoption directly with adoptive parents of the parents’ choice, with a licensed child-placing agency, or with the local board of public welfare or social services. When placing a child with an agency or board of public welfare, the parents must entrust the child to the care of the agency or board, giving up all parental rights and responsibilities (this is called an “entrustment agreement”). The entrustment agreement is revocable (can be canceled) until the child is 10 days old and 7 days have passed from the date the parents gave the child to the agency. It is also revocable if the child has not been placed in the physical custody of the prospective adoptive parents. When placing a child directly with adoptive parents, the birth parent must consent to the proposed adoption in court. Consent is revocable for any reason within 10 days after turning the child over to the adoptive parents.

Person From Whom Consent is Required

Under ordinary circumstances, a child may be placed for adoption only with the birth parents’ permission. The consent of the father of a child born to an unmarried woman is not required if the father named by the birth mother denies under oath and in writing the paternity of the child, or if the father did not register with the Putative Father Registry, so long as the father is notified of the proceedings and does not object within 15 days of notice. A birth parent who has not reached the age of 18 has the legal capacity to consent to adoption and is fully bound as if the parent was a legal adult.

If the child up for adoption is 14 years of age or older, he or she must consent to the adoption, unless the court finds that the best interests of the child are such that consent is unnecessary. Consent also must be given by the agency or local board in whose custody the child has been placed.

Counseling and Inspection Requirements

Whether the adoption is conducted through an agency or the child is placed directly with adoptive parents, an investigation of the adoptive parents must be made. A licensed or duly authorized agency will conduct a study of the adoptive home in accordance with regulations established by the State Board of Social Services and will provide the court with a report and a recommendation about the suitability of the adoptive parents. The investigating agency will inquire as to the financial ability, moral suitability, physical and mental health of the prospective adoptive parents, the circumstances under which the child will be living in the home, and other matters. Counseling of the birth parents and adoptive parents on alternatives to adoption, adoption procedures, and parental rights is also required.

Expenses

Parents and child-placement agencies may not receive payment for the adoption of a child other than for reasonable expenses incurred in the process. Under Virginia law, no person or child-placing agency may charge, pay, give or agree to give or accept any money, property, service, or other item of value in connection with a placement or adoption, except reasonable and customary services provided by a licensed agency and fees paid for services, payment or reimbursement for medical expenses directly related to the birth mother’s pregnancy and hospitalization for the birth of the child, mental health counseling for the birth mother or father related to the adoption, expenses for medical care of the child, legal fees, and transportation expenses necessary to execute adoption proceedings. Violation of this law is a felony, a significant criminal offense.

Military personnel interested in adopting should talk with a legal assistance officer to learn if they qualify for the adoption expense reimbursement program.

Probationary Period

After all requirements are met, the court will enter an interlocutory (temporary) order of adoption for a trial period. Until a final order of adoption, the interlocutory order may be revoked (canceled): if there is fraud or duress, with written consent of both the birth parents and the adoptive parents, or upon a showing of good cause as to why the adoption should not be final.

After the court enters the interlocutory order, a public welfare agent or a child-placement agent will visit the child at least 3 times within a period of 6 months. The agent will report to the court. The three visits may be completed in no less than 90 days.

Final Adoption Order

After entering the interlocutory (temporary) order and after the court considers the report made by the supervising agent, if the court is satisfied that the best interests of the child will be served by the adoption, it may enter the final order of adoption.

Adoption by New Spouse of Natural or Adoptive Parent

When the spouse of a natural parent or a parent by adoption has died, and the surviving parent remarries and the new spouse wants to adopt the child, the surviving parent and new spouse may file a petition for adoption and/or name change. The court may grant the petition without consulting other authorities.

In the case of divorce and remarriage, the court may grant the petition without referral to other authorities if the other parent consents in writing to the adoption or change of name, or if the other parent is deceased.

When the natural parent in custody of a child born out of wedlock marries, and the new spouse desires to adopt the child, the court may grant the adoption and/or name change if:

1) The other natural parent of the infant consents, under oath, in writing to the adoption, or

2) The mother swears, under oath and in writing, that the identity of the father is not reasonably ascertainable, or

3) The natural father named by the mother denies paternity of the child, or

4) The child is at least 14 years of age and has lived in the home of the person desiring to adopt the child for at least 5 years, or

5) The other parent is deceased.

If the court feels there should be an investigation before final order of adoption by a new spouse, it may refer the matter to the local director of public welfare or other proper authority for an investigation.

Abortion

Depending upon its timing and circumstances, abortion is lawful in Virginia. During the first trimester (3 months) of pregnancy, any doctor licensed in Virginia may perform an abortion. During the second trimester, an abortion is lawful if performed by a licensed doctor in an appropriately licensed hospital. During the third trimester, abortion is lawful only if performed by a licensed doctor in an appropriately licensed hospital, and the doctor and two other doctors certify that based upon their best medical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably harm the mental or physical health of the woman.

If an abortion is performed during the third trimester, the doctor must determine if the fetus is viable, meaning it could clearly live outside the woman after the abortion. If it is viable, the doctor is required to try to save the fetus following the abortion.

Abortion is, of course, a highly controversial subject, and the law dealing with it may change in important ways. Anyone considering an abortion should first carefully inquire as to any legal rules that may apply.

VIII. PLANNING FOR THE FUTURE:

WILLS, TRUSTS, AND POWERS OF ATTORNEY

Wills

“What happens to my property at death?” is a very common question. State law determines what happens to someone’s property (the “estate”) after death. What happens to your property when you die depends on whether you prepared a will. A will is a written document that specifies how and to whom you would like your property to go after you die. The person who made the will is called the “testator” and is said to have died “testate” (having made a will). A person who has not made a will is said to have died “intestate.” Intestate property is divided according to a special law, the Virginia law of “intestate succession.” The law of intestate succession determines, instead of a person’s written will, who will get the deceased person’s property.

It is always better to have made a will than to die intestate. Some advantages of a will are:

· You decide who gets your property.

· You can name an executor to handle the administration of your estate.

· You can save estate and inheritance taxes.

· You can create a trust for the benefit of your family without court proceedings.

· You may nominate a guardian for your minor children.

· You may eliminate expensive court proceedings in disposing of real estate.

· You can reduce the expenses of administering your estate by not requiring bond premiums and avoiding other probate costs.

Many people believe that they don’t own enough property to make it worthwhile to make a will. Actually, most people own more than they think they do, and parents should always have wills to provide for who will take care of their children if both parents die.

Although a basic will can be short and simple, to make a valid will, one must follow special rules. To prepare a will, consult a lawyer. Many people think they can save money and trouble by making their own will or filling out a form will. Be careful not to fall into this trap. Form wills and self-made wills often lead to unseen problems and may be declared invalid, defeating a deceased person’s intentions. In some ways, the biggest problem with a form will is that it can’t ask the questions an informed lawyer would ask. These questions will help you remember everything you own, discuss how you want to deal with it, and sometimes remind you of special responsibilities. We recommend that you seek a lawyer’s advice and have that lawyer prepare the will and supervise its signing. A will worth doing is worth doing right. However, check out the lawyer’s fee first. A simple will should not be expensive.

After a person dies, the first step is to appoint a personal representative to wrap up the affairs of the decedent (person who has died). If the decedent dies testate (having made a will) and has named an executor, the executor will act as the personal representative of the deceased. When the decedent dies intestate (not having made a will) or does not name an executor in his or her will, the court appoints a personal representative (called an administrator) to carry out these duties. The personal representative is responsible for collecting and recording the decedent’s assets, paying the claims of creditors and tax collectors, paying funeral expenses, and distributing the remaining assets to those entitled to receive them.

Probate is the process by which a court validates (or invalidates) a will and administers the decedent’s estate by affirming or disaffirming the actions of the personal representative. Probate is the responsibility of the personal representative, and is supervised by the Circuit Court.

If a person does not have a valid will or dies intestate, the law will divide the property after death. This is called “intestate succession.” In writing the law concerning intestate succession, the General Assembly attempted to do what it thought a reasonable person would have done if they had written a will. What the General Assembly considers reasonable may not be what you consider reasonable, however. In Virginia, for example, if a married man with children dies, his surviving wife will get all of his real and personal property if all the children were born of their marriage. If one of the children of the deceased was from a previous marriage, however, his surviving wife receives only one-third of his real and personal property, and the children receive two-thirds.

Example 1: John dies intestate (without a valid will) leaving a surviving wife, Jane, and two children, both of whom were born of the marriage of John and Jane. Jane takes all of John’s real and personal property.

Example 2: John dies intestate leaving a surviving wife, Jane, and two children. One of the children was from John’s previous marriage to Mary. Jane will get only one-third of John’s real and personal property; the children will take two-thirds. Is this what John would really want for Jane? For the children?

If the decedent was unmarried and had no children, the decedent’s parents, if living, will receive the decedent’s property. If the decedent’s parents are not living, then any brothers or sisters of the decedent will receive the property. When planning a will, one should also consider state and federal tax laws that can be very important for many estates.

This text is not intended to offer you specific advice, but only to provide a broad outline of things to consider in planning your will. Your individual circumstances will determine the course of action that is right for you. By discussing your individual circumstances with a lawyer, you can get advice on how best to make sure that what you want to occur after your death actually happens.

The Trusts and Estates Section of the Virginia State Bar recommends the following steps in planning your affairs:

1) Inventory your assets: list all your property, life insurance policies, and any other that include death benefits.

2) Inventory your liabilities: list all debts and obligations, including principal amounts, payees, and essential terms.

3) List your relatives and others you would like to share in your estate.

4) Decide what you would like to accomplish. What are your objectives and to whom do you want what distributed?

5) Consult an attorney to work out the details and prepare the necessary documents.

Guardians

If both parents of minor children die, someone must be appointed to take care of the children, to be the children’s guardian. You should always name the person you want to be appointed as guardian of your minor children. Under court supervision, the guardian will be responsible for raising the children and managing the property you leave to them. Do not name anyone as guardian until you and your child’s other parent decide who is best qualified for the responsibility. Normally, you should get that person’s permission to name him or her as guardian. The court does not have to appoint the person you name (but naming a person will make it more likely that person will be appointed) and will not appoint a person as guardian if that person doesn’t want to serve.

Property Not Covered by Will

Not all property owned by a decedent will be disposed of under the provisions of a will. For example, if a life insurance policy is payable to a particular person, that person receives the money under the insurance policy. Also, if ownership of certain property is shared with another person as a “joint tenant with the right of survivorship,” the title to the property will pass to the other person on death, regardless of what the decedent states in the will.

What Should Not Be Put in a Will

Many people fear they will be unable to make their own medical decisions in the event of an accident or illness. Medical instructions should never be placed in a will because this document will not be opened until after the individual dies. Likewise, funeral instructions should not be placed in a will. Instead, you should create a living will or a durable medical power of attorney. These are discussed in more detail later. It is very important to discuss your medical wishes openly and thoroughly with your family.

Executing the Will

A will has to be written, signed, and witnessed according to strict legal requirements. This is called executing the will. This should only be done under the supervision of an attorney or a member of her or his staff. Never write on a will after it has been executed.

Reviewing the Will

You should read your will at least once a year. You should ask your attorney to review your will when:

1) The executor, alternate executor, or guardian of your children is no longer able to serve, or, for some reason, another choice is preferred;

2) Your children are born; or

3) You have a substantial change of circumstances (such as getting married, divorced, acquiring a large amount of money or land).

In the event you lose your will, or it becomes torn, marked, or mutilated in any way, you should execute a new one as soon as possible. A court may refuse to validate a will that has changed physically.

Safeguarding your Will

Put your will in a safe place, and let your executor know where it is kept. Your attorney may keep a copy of your will, so let your executor know who your attorney is.

Trusts

A trust is a legal arrangement that a person, sometimes called a settlor, creates to hold assets for the benefit of others, called beneficiaries. Put simply, a trust allows a person to set up specific ways to distribute money to beneficiaries (for example, a beneficiary may receive $1000 each month for five years). A trust can be revocable (subject to later change) or irrevocable (not subject to change). A trust can be made effective while the person creating it is still alive, in which case the person creating it is called a settlor, or it can be set up to take effect after the creator’s death by means of a will, in which case the creator is called a testator. To create a trust, there must be evidence that the person creating it intended to do so. A written document is the best evidence of the intent. The parts of a trust are:

1) A trustee, who administers or manages the trust; the trustee can be any adult including a spouse or a settlor;

2) Property, which can be personal property or real estate; and

3) Beneficiaries, who get the benefits of the trust, usually its income, and under certain circumstances, receive the proceeds from the sale of trust property.

People often create living trusts (trusts that take effect when the person creating the trust is still alive) to avoid the costs and delays of probating a will, even though the initial cost to set up a trust is often greater than the cost of making a will. People also create trusts to manage their property while they are still alive or after their death. Finally, people create trusts to avoid certain estate and federal taxes.

The powers of the trustee (the beneficiary of the trust) are set both by law and by the terms of the trust as stated by the settlor or testator. Changing the terms of the trust requires legal proceedings that are usually expensive. Generally, one cannot change the terms of an irrevocable trust.

Most people create a trust to provide for their spouse and minor children after their own death. They usually want the beneficiaries to periodically receive the income of the trust (interest, dividends, rents, royalties, etc.). Usually, at a specified point in time, the trust dissolves and the beneficiaries receive the trust assets as directed in the terms of the trust. Trusts serve a useful purpose, because the trust property generally cannot be sold by the beneficiaries for the life of the trust and cannot be reached by creditors of the beneficiaries. On the other hand, often part of the trust property must be used to pay a trustee’s fee. There are also occasional problems with dishonest or incompetent trustees, although today most banks and trust companies have safe trust departments. Trusts can be complicated, especially when considering tax laws. A trust should not be created without a lawyer’s advice.

Minors: The Virginia Uniform Transfer to Minors Act

The Virginia Uniform Transfer to Minors Act allows a person, the creator, to easily transfer either personal or real (land, houses, etc.) property to a custodian, who holds and manages the property for the benefit of a minor child. When the child turns 18 (or 21 if the transfer to the custodian is by gift and the creator chooses 21 as the child’s age when property is to be transferred back to the child), then the title (ownership) to the property and its management automatically passes to the child. The custodianship can be made effective immediately or at the occurrence of a future event, such as the creator’s death. If it is made effective on the occurrence of some future event, the creator can change what that event is prior to its occurrence or the transfer can be made effective immediately anytime before the event.

The custodian is like a trustee, but has greater powers. For example, the custodian may sell the property for the minor without going to court to get permission. On the other hand, this law requires the property to be given to the child by the age of 18 or 21. Also, a custodianship for property can only be created for the benefit of one minor, even though there is no limit on the number of properties or assets placed into the custodianship.

The main advantage to this law is that a person can simply register any number of properties to a custodian on behalf of a minor and direct that it take effect only upon the death of the person creating the custodianship. The cost of transferring property is much less than if one transferred property in a trust or a will.

The main disadvantages are that the custodianship of any given asset goes to only one minor, and the custodianship cannot last beyond that minor’s twenty-first birthday. Another disadvantage is the danger involved in the amount of power and control given to the custodian over the property, as well as the costs of a professional custodian. Finally, while it provides for a minor child, it does not provide for multiple children or for a surviving spouse with children.

Powers of Attorney

A “power of attorney” is a legal document by which an individual (the grantor), gives another individual (the attorney-in-fact) the authority to act for the grantor, either for some particular purpose or in general. The attorney-in-fact does not need to be a lawyer and usually is not. The attorney-in-fact may be a spouse or any other individual eighteen years of age or older. Within the terms of the power of attorney (the paper that creates the power) the attorney-in-fact has full authority to deal with the grantor’s property. Therefore, such authority should only be given, with extreme caution, to someone who is completely trusted. Powers of attorney can be divided into general powers and special powers. A general power is almost unlimited and is more useful—and more dangerous if used improperly.

The “special power of attorney” gives an attorney-in-fact authority to act in the grantor’s behalf for a specifically named transaction or for a specific period of time. The most common special powers of attorney are for things such as shipping household goods, endorsing checks, authorizing medical or dental care, and executing legal documents. A special power of attorney may be written to authorize another person to do virtually any act that the grantor might do if personally present.

The general power of attorney is considered “legal dynamite” because it gives an attorney-in-fact power to conduct almost all of the grantor’s business. The attorney-in-fact can buy and sell property, borrow money in the grantor’s name, etc. A general power of attorney is rarely, if ever, needed. It is strongly inadvisable to grant anyone, even a spouse, general power of attorney “just in case.”

The person given the power of attorney does not have to accept that power. If you decide to give the power of attorney to another person, you should check with them first to make sure they will accept the power. The need to give someone the power of attorney over your affairs is entirely personal and should be tailored to your individual needs and desires. Remember: never grant a power of attorney to someone who is not absolutely trustworthy and capable.

Powers of attorney end on either the death of the grantor, the termination (end) date in the power, or on the disability of the grantor (unless the grantor specifically grants what is called a “durable” power of attorney that includes language like, “This power survives my disability.”).

Durable Medical Powers of Attorney

Every person should carefully consider what should be done if he or she should become so seriously ill that he or she cannot make medical decisions. In Virginia, a durable medical power of attorney gives one or more specially named persons the power to make medical decisions for a person who cannot make such a decision by him or herself. This may also be called an advance directive to appoint an agent to make health care decisions. The durable medical power is useful because it deals with medical care for a person who may die and also with the medical care of a person not likely to die, but who cannot make medical decisions because of illness or accident.

A durable medical power of attorney is one of the most important documents a person can ever make. Be sure to appoint the right person (or people) to act for you. Be sure that they agree. Also, be sure that the written document states exactly what they are to do. Many people don’t wish, for example, to be kept alive by modern medical technology if there is no hope for recovery. Your wishes must be set forth clearly if you want limits to be placed on medical treatment.

A durable medical power of attorney should be written by a lawyer to make sure that it meets all the legal requirements and that you have carefully considered all of the important things that should go into it.

IX. BANKING

Joint Accounts

When a person opens a bank account, whether a savings or checking account, the person owns the account and may take money out of the account, subject to any special limitations in the account arrangement. A joint account has joint owners. In practice, each of the people on the joint account can withdraw any or all of the money from the account, even without the permission or notice of the other person. Joint accounts should only be opened with people you trust completely.

Loans

In General

Borrowing money from a bank can be simple. If the bank approves you and your loan, you borrow a set amount of money for a fixed period of time at a specified interest rate. The hard part is usually getting the bank’s approval, which can be especially difficult for a young adult fresh out of school who may want to take out a car loan, for example.

Personal loans usually ask only that the borrower promise in writing to pay back the loan, with any required interest. If the borrower doesn’t pay back the money, the bank can sue the borrower. A loan can be a secured loan, however. A secured loan is a loan that is backed up by property such as a car or a house. If a borrower has a secured loan and doesn’t pay, the bank can take the security (the property) and sell it to get the money back.

Some loans have an “acceleration” clause. This means that if the borrower doesn’t make the required payments, the lender can demand immediate payment of the entire loan. It’s important to read the loan paperwork carefully and know exactly how much interest will be charged. Most loans will conform to a federal law, the Truth in Lending Act, which makes sure that the consumer is fully informed about the terms, costs, and interest rate associated with a loan.

Co-Signing Loans

A person who co-signs a loan promises to pay the loan back if the borrower doesn’t. Co-signing a loan is very risky. It’s easy for a friend to ask you to co-sign a loan, promising that it’s only a formality and won’t ever be a commitment to pay. But you should never co-sign a loan unless you are prepared to pay back the entire loan by yourself. If you do decide to co-sign a loan, require in writing that (1) the lender notify you in writing if the borrower misses a payment and (2) that the lender notify you before any late fee is due and before the loan is due. Also, try to get the lender to agree in writing that as a co-signor you aren’t responsible for any interest or late charges, just the amount borrowed (minus any principal payments the borrower has already made). If you are sued, Virginia law may permit you to force the lender to first sue the person for whom you co-signed. If you are sued, see a lawyer quickly.

Checking Accounts

In General

A check is an order from the owner of the checking account to the bank to pay the amount on the check to the person who is named on the check (the payee).

A check must be signed by the account owner (the drafter of the check) in order to be valid (or one of the owners in the case of a joint account). No person can be responsible for a check, and the money it represents, unless the check contains his or her signature. A symbol affixed by machine or a mark intended to represent a signature is satisfactory, and a signature may be placed on any part of the check. If someone finds or steals a check and forges the owner’s name on it or changes the amount of the check, the owner is not responsible, unless the owner negligently and substantially contributed to the forgery or alteration. If the bank pays the check when this is not the case, it must put the money back in the account owner’s account.

Once the payee signs the back of the check, endorsing it, anyone can cash the check. Never sign the back of a check just to show that it’s yours; that’s a sure way to lose the money if it’s lost or stolen. Only endorse a check when depositing it in a bank or cashing it. If you must send the check through the mail to the bank in order to deposit it, write on the back, before your name, “For deposit only.”

The bank doesn’t have to pay a check when the account owner doesn’t have enough money in the account to pay the check; the bank may “dishonor” the check, perhaps charging the account owner a fee for insufficient funds at the same time. The bank ordinarily must honor a certified check, a special kind of check issued to an account owner that guarantees that there are sufficient funds in an account to cover it.

The owner of a checking account may “stop payment” on a check, that is, tell the bank not to pay it. A stop payment order usually costs something. Also, the owner of the checking account must give the bank a reasonable opportunity to stop the payment of a check. Therefore, notify the bank of your wish to stop payment as soon as possible. A stop payment order may prevent the payment of a check, but if the check was used to buy something or to pay a debt, the checking account owner will still owe the money. Under federal legislation designed to speed up the “clearing” or processing of checks, checks now may be processed electronically. This makes the process faster, so, if you want to order your bank to stop payment, do it very quickly—on the same day, if possible.

Post-Dated Checks

A “post-dated” check is a check that is given to someone with a future date on the check. Under Virginia law, a post-dated check is not payable before the date stated on the check. A bank may refuse to honor a check until the date stated on the check. Unless an account owner notifies the bank that the check should not be paid until the stated date, however, the bank may (but is not required to) charge a customer’s account for a check that the bank did pay before the date specified on the check.

X. BANKRUPTCY

In General

Sometimes honest people become unable to pay their debts. The law recognizes that the inability to pay debts is not always the result of bad conduct or moral failure. When a person cannot pay off his or her debts, even after discussing new repayment plans with creditors (the people money is owed to), bankruptcy may be the answer. Bankruptcy law makes the best of a difficult situation. One purpose of bankruptcy law is to give the honest, overburdened debtor (person who owes money to someone) a fresh start. A person who is “discharged in bankruptcy” no longer owes the debts, and creditors (people or companies to whom the debtor owes money) can no longer try to collect them. A bankruptcy, however, does have some bad financial results. A person who has declared bankruptcy may be unable to get credit. Even more significant, with some important exceptions, much of the bankrupt’s property may be sold to pay the debts.

For many years, people considered bankruptcy immoral. Social attitudes have changed greatly, in part because of the number of large companies that have declared bankruptcy. Bankruptcy is a reasonable decision for a person who cannot reasonably pay off debts incurred in good faith.

Bankruptcies are governed by federal law, not Virginia law. In 2004, Congress made changes to the federal bankruptcy law that made it more difficult to file for bankruptcy. Most people must attempt a Chapter 13 bankruptcy, addressed below, before they will be allowed to liquidate under Chapter 7. Further, the person filing for bankruptcy must attend credit education classes and meet other requirements prior to filing. It is highly recommended that you seek the advice of a lawyer.

Types of Bankruptcy

Chapter 7 Bankruptcy

The most common type of bankruptcy has been known as a “Chapter 7” or “straight” or “liquidation” bankruptcy. Under the bankruptcy law passed in 2004, it is much less common than it used to be. In this sort of bankruptcy, the court appoints a person to act for it, called the trustee, to collect the debtor’s property and pay off as much of the debt as possible. To raise cash, the trustee sells that part of the debtor’s property that the law doesn’t protect (non-exempt property). The trustee then distributes the money to the creditors. The creditors receive different amounts of money depending on the amount and type of the debt the debtor originally owed. The creditors most likely will not be paid the full amount owed to them.

Bankruptcy law tries to balance the creditors’ rights to get their money back with the debtor’s need for a fresh start. It would be wrong to let a debtor buy a great number of things she or he could not afford, declare bankruptcy, and then keep everything. At the same time, however, if the law took everything a debtor owned, a fresh start would be impossible. As a result, bankruptcy law allows a debtor to keep exempt property when declaring bankruptcy.

In a Chapter 7 bankruptcy, the debtor gives up all of his non-exempt property at the time of filing, in the hope of obtaining a discharge. A discharge is a release from further responsibility for pre-bankruptcy debts.

Exempt Property

In Virginia, the debtor who files for Chapter 7 bankruptcy does not have to give up all of his property. The debtor who is a Virginia resident generally may keep, among other things: $5,000 worth of real (land, etc.) or personal property of the debtor’s own choosing; $1,000 worth of clothing; any pets; tools of a trade worth up to $10,000; household furnishings worth up to $5,000; a motor vehicle worth up to $2,000; medically prescribed health aids; and items such as a family Bible, wedding rings, etc. Some disabled veterans can keep even more.

Discharge of Debts; Exceptions

The debtor may obtain a release (discharge) from some, but not necessarily all, pre-bankruptcy debts. Some debts are non-dischargeable. For example, the debtor may still have to pay certain tax debts, debts incurred through fraud (including certain credit card charges), court fines and costs, spousal and child support, or certain student loans after bankruptcy. The debtor who gets a discharge may still have to pay the full amount of these debts.

Objections to Discharge

The creditors can object to a bankruptcy discharge. Most objections involve some form of dishonesty or uncooperativeness by the debtor. If those objections are successful, the bankruptcy court will deny the debtor a discharge. A creditor cannot successfully stop a bankruptcy discharge just because he or she won’t get paid back in full.

Chapter 13 Bankruptcies

Chapter 13 bankruptcies are different from Chapter 7 “liquidation” bankruptcies. In a Chapter 7 bankruptcy, the debtor’s property is sold off to satisfy the creditors. In Chapter 13 bankruptcies, the debtor creates a plan to pay part or all of his debts in the future. Under these plans, the debtor may keep her or his assets and make payments to creditors according to a court-approved repayment plan. Chapter 13 bankruptcies are known as “rehabilitation” bankruptcy proceedings. Only individuals and corporations who have regular income and who meet certain other requirements can file for Chapter 13 bankruptcy. After 2004, almost everyone who files for bankruptcy will at least have to attempt a Chapter 13 bankruptcy before they will be allowed to use a Chapter 7 or “liquidation” bankruptcy.

Repayment Plans

Both Chapter 7 and Chapter 13 bankruptcies call for court-approved repayment plans. It is not necessary that the plan provide for full repayment of all debts. If the plan meets certain requirements, the court will approve it. The requirements for court approval of the plan are different depending on whether the bankruptcy filing is under Chapter 13 or Chapter 7 of the bankruptcy law. Chapter 13, however, requires that creditors must receive at least as much as they would under a Chapter 7 filing, unless they agree to accept less.

Discharge of Debts; Exceptions

As in a Chapter 7 bankruptcy, in a Chapter 13 bankruptcy the debtor may receive a discharge of indebtedness. Again, some debts are non-dischargeable. In a Chapter 13 bankruptcy, debts generally are discharged once the debtor completes the payments to be made under the court-approved repayment plan. In some Chapter 13 cases, a hardship discharge may be granted even if the debtor fails to complete the payments under the plan, though a hardship discharge is very hard to get.

Advantages and Disadvantages

Filing for bankruptcy can have both good and bad results. For example, on the plus side, it can give the debtor relief from creditors. Automatically, the debtor’s act of filing for bankruptcy temporarily stops creditors from taking action to collect the money owed to them. Bankruptcy also can give the debtor permanent relief from creditors. The bankruptcy court may grant the debtor a discharge from certain debts; that is, the debtor will not have to pay any more money. In other words, bankruptcy can lift the weight of heavy debt and allow the debtor a fresh start, which is especially important to those whose lives have been made miserable by bill collectors.

On the other hand, the bankruptcy may remain on the debtor’s credit record for up to ten years. Also, while a debtor can discharge most debts, the debtor may not discharge certain types of debts. Finally, depending on the type of bankruptcy filing, the debtor may have to give up property. Bankruptcy is a very serious matter involving a number of important technical issues. A person thinking of declaring bankruptcy should first talk with a lawyer.

X. DRUGS AND ALCOHOL

Drugs

In Virginia, it is a crime for any person to manufacture, sell, give, distribute, or possess any controlled substance or imitation controlled substance without a valid physician’s permission or a license from the Commonwealth. Penalties for violating these laws vary according to the classification of the substance, the amount found at the time of arrest, and the number of prior illegal substance convictions. Military personnel who use unlawful drugs may also be tried by court-martial for violations of the Uniform Code of Military Justice.

Cocaine, heroin, codeine, morphine, and L.S.D. are classified as Schedule I or Schedule II drugs in Virginia and have the most severe punishments. Substances that are considered less dangerous are classified as Schedule III or Schedule IV, and usually have relatively lighter penalties than Schedule I and II substances. Marijuana is classified separately.

A person found guilty of a first offense of violating Virginia’s Schedule I or II drug laws, other than simple possession, face imprisonment of five to forty years and fines up to $500,000. A second conviction results in the same minimum five years imprisonment, but the judge or jury may impose life imprisonment. Penalties may increase when the defendant distributes the illicit substance near school property or to children under 18. Simple possession of a Schedule I or II substance is a Class 5 felony carrying a penalty of one to ten years imprisonment and a fine of up to $2,500.

A person found distributing between one‑half ounce and five pounds of marijuana will be sentenced to one to ten years imprisonment and may be fined up to $2,500. If the amount exceeds 5 pounds, the sentence range increases to a minimum of 5 and a maximum of 30 years imprisonment. Conviction of simple possession of marijuana can result in up to 30 days imprisonment and fines up to $500. A second conviction for simple possession is a Class 1 misdemeanor carrying a penalty of at least one year imprisonment and up to $2,500 in fines.

In addition to the above penalties, the court will suspend the defendant’s privilege to drive for a period of 6 months. Also, the Commonwealth may seek to acquire through a civil forfeiture action all money, property, or equipment associated with the unlawful substances.

Courts may show leniency to first-time offenders of the possession statutes. After finding evidence sufficient to convict the defendant, the court may order a period of probation during which time the offender would undergo drug-testing and education. Following successful completion of the probation period, the court may, by use of its discretion to dismiss the charges. This is a one-time opportunity and does not apply to those charged with distribution or sale offenses.

Alcohol

The legal drinking age in Virginia is 21. Possession of alcohol by a minor or using false identification to obtain alcohol is punishable by suspension of a driver’s license for one year (regardless of whether the alcohol offense is related to driving), a fine up to $2,500, and a jail term of up to one year. Knowingly purchasing alcohol for a minor is punishable by up to one year in jail and a fine up to $2,500.

Public drunkenness, regardless of age, is also a crime under Virginia law. Offenders may be held until sober, taken to a detoxification center, and/or fined up to $250.

Virginia law presumes all drivers to be under the influence of alcohol when their blood‑alcohol content (BAC) is .08 or above. Penalties for driving under the influence include:

First Offense:

If the BAC is .08 to .14, the penalty is a one year license revocation, mandatory fine of $250, additional fines up to $2,500, and up to one year in jail. If the BAC is .15 to .20, there is an additional mandatory five days in jail. If the BAC is .21 or above, there is an additional mandatory ten days in jail.

Second Offense:

Second offense DUIs receive the same punishment as listed above, but also have additional penalties.

If the second offense was committed within five years after a prior offense, the additional punishment is a mandatory fine of $500 and a jail sentence. The mandatory minimum sentence is 20 days in jail, but the sentence can be up to one year.

If the second offense was committed between five and ten years after a prior offense, there are different penalties. The additional punishment is a mandatory fine of $500 and a jail sentence. The mandatory minimum sentence is 10 days in jail, but the sentence can be up to one year.

If the second offense was committed within 10 years of the prior offense, and the BAC was between .15 and .20, there is an additional mandatory minimum period of 10 days in jail. If the second offense was committed within 10 years of the first offense, and the BAC was between over .20, there is an additional mandatory minimum period of 20 days in jail and a $500 fine.

Third Offense

Any person convicted of three DUIs within 10 years is guilty of a felony. There is a 90-day mandatory minimum sentence if the three offenses were committed during the 10-year span. If the three offenses were committed within a 5-year period, the mandatory minimum sentence is 6 months in jail and a $1,000 fine.

Fourth or Subsequent Offense

Any person convicted of four or more DUIs within 10 years is sentenced to a mandatory minimum sentence of one-year imprisonment. There is also a $1,000 fine.

For drivers under 21, the law presumes the influence of alcohol if the blood-alcohol content is .02 or higher. A minor arrested for driving with a BAC of between .02 and .08 faces forfeiture of license for six months and up to a $500 fine.

Virginia has adopted an administrative license suspension statute; upon a failure of a breath test or refusal to take the test, the Commonwealth immediately suspends the driver’s license for 7 days. Refusal to take a breath test may lead to suspension of the driver’s license for one year. Additional refusals within 10 years may lead to suspension of the driver’s license for 3 years.

Virginia outlaws the operation of a boat while under the influence of alcohol. Courts presume the influence of alcohol when the BAC reaches .08 for adults and .02 for minors. Punishments mirror those for driving under the influence of alcohol.

Virginia courts have the discretion to impose alternative sentencing for individuals between the ages of 18 and 21 years of age for first-time conviction of crimes below a Class 1 felony. Such alternative sentences may include imprisonment at a youthful offender facility, rather than an ordinary prison, and/or parole or probation. The judge has complete discretion in whether to impose alternative sentencing. Before the judge decides, the Department of Corrections and the Parole Board make their own report to the judge to aid in the decision of whether it would be in the State’s best interest to impose such alternative sentencing. The judge makes the final decision, and as stated earlier, the judge is under no obligation to apply or even consider such alternative sentences. Also, for some crimes, even if first offenses, alternative sentencing is not allowed.

XI. LAWYERS: GETTING AND USING ONE

In General

Lawyers are professionals whose duty is to serve their clients, subject to any limitations imposed by law and ethics. Nearly all lawyers are graduates of a law school. Law school is normally three years long, and admission ordinarily requires a college degree. A few states, including Virginia, permit people to “read law,” that is to study under the supervision of a lawyer, instead of going to a law school. Very few become lawyers this way. No person may practice as a lawyer in a state without admission to the bar of that state. Admission usually requires that the applicant pass the bar examination in that state. Lawyers admitted to practice in one state, however, may sometimes be permitted to practice in a different state without having to take a new examination.

Finding a good lawyer is no more difficult, or easy, than finding a good doctor or dentist. You may call the Virginia State Bar in Richmond to request a list of local lawyers, although the bar association usually will not recommend a specific lawyer. Also, you can use the Yellow Pages or select a lawyer through television advertising. The best approach may be word of mouth. Ask friends and co-workers for recommendations and listen carefully to any problems that they may have had.

Most lawyers charge for their help. Many will not charge for the first meeting or, if they do, will charge a discounted amount. When arranging a first consultation with a new lawyer, be sure to ask what the session will cost.

Fees usually fall into one of three types: fixed amounts (a set rate to perform a specified task), hourly at a set rate, or, when suing someone, a “contingency fee” (if the client wins, the lawyer takes a fixed percentage, often one third, of any recovery). Hourly or fixed rates often increase if a case goes to trial. It is very important to find out if there will be other costs. Lawyers usually charge clients for various expenses in addition to their fees, including court costs. In other words, even though a lawyer has advertised “no fee if we lose,” a client may be responsible for substantial expenses.

If a client cannot afford a lawyer’s fees and makes that clear, the lawyer may be willing to take the case or advise the client at a reduced cost or free of charge (pro bono representation). In addition, some agencies such as Legal Aid offices will take clients who cannot pay. You can find a list of Legal Aid offices by calling (866) LEG-LAID or accessing http://www.valegalaid.org.

When a client discusses a problem with a lawyer, anything said by one to the other that is said in confidence to obtain legal help for the client is privileged (confidential and cannot be told to anyone outside the law firm). There are a few exceptions to this rule, but they rarely apply in general practice. Discussing how to commit a future crime, for example, is not protected.

When a client asks for legal help, a lawyer will listen to the client, obtain whatever additional factual information may be appropriate, conduct legal research, and then advise the client of whatever options may be available to solve the client’s problem. A good lawyer will counsel the client, but the client must make up his or her own mind as to what to do.

Military Personnel and their Family Members

Members of the active armed forces and their families are entitled to free legal help from the legal assistance division of the local office of the Staff Judge Advocate. This assistance includes the types of work that a local lawyer would handle for a civilian, including preparation of wills and tax returns, family matters, and general legal advice. Members of the military may receive legal assistance either from uniformed judge advocates and Coast Guard law specialists or from civilian employees working for the government. At some installations legal assistance lawyers may be able to go to civilian court to defend junior enlisted personnel.

XII. THE VIRGINIA COURT SYSTEM

In General

The Virginia Court System has six different kinds of courts: the Virginia Supreme Court, the Court of Appeals, Circuit Court, General District Court, Juvenile and Domestic Relations District Court, and small claims court. Most lawyers and judges refer to the General District Court as “District Court” and the Juvenile and Domestic Relations District Court as the “J&DR” court. Small claims courts may handle claims of up to $5,000, not including interest. Parties may bring law suits and criminal cases in small claims court, District Court, J&DR Court, and Circuit Court.

Jurisdiction

The power of a court to do something for or against someone is called jurisdiction. If a court doesn’t have jurisdiction, it cannot hear the case. If you have to go to court, it is helpful to know that there are two different kinds of jurisdiction: personal and subject matter.

Personal Jurisdiction

Personal jurisdiction is the power of a court over a person. A court must have personal jurisdiction over a defendant before it can render judgment against him or her. A Virginia court will have personal jurisdiction over anyone living in Virginia. Generally, the Virginia court will also have personal jurisdiction over anyone who did something in Virginia, if it is related to the law suit. If one of the “people” involved in the suit is a corporation or partnership, the same rules generally apply.

One important fact is that defendants may waive, or give up, their right to challenge personal jurisdiction. If you sue someone from another state in a Virginia court over something that happened in that state, and that person comes to Virginia to fight the suit on some grounds other than lack of personal jurisdiction, the Virginia Court gets personal jurisdiction over them. They are allowed, however, to come to Virginia and claim that the Virginia court has no personal jurisdiction: just because they show up doesn’t mean they have given up their right not to be sued in Virginia. If you are sued in another state over something that happened in Virginia, you should check with a lawyer to make sure you don’t give up your right to not be sued in that other state.

Subject-Matter Jurisdiction

Subject-matter jurisdiction is the power of a court over certain matters. For example, if you wanted to sue someone over a contract for $4,000, the General District Court is the only court to which you can turn, because it has what is called “exclusive subject-matter jurisdiction” over claims for less than $4,500. If your claim was for more than $15,000 though, you would have to go to Circuit Court, because it has exclusive subject-matter jurisdiction over claims for greater than $15,000. Both courts have subject-matter jurisdiction over claims between those amounts.

Venue

Venue generally means that a suit must be filed in the court for the county or city in which the events leading up to the suit took place or where the defendant lives. There are a few specific rules that need to be followed:

Construction Contracts: Venue for any suit involving a construction contract may be filed in the city or county in which the construction was to take place.

Real Estate and Leases for Real Property: Real property generally includes any land, house, or apartment. A suit involving real property may be filed in the city or county in which any part of the land is located.

Divorce: Any suit for divorce, annulment of a marriage, or to confirm a marriage should be filed in the place where the couple last lived together or where the defendant lives. For example, if your husband or wife has moved out of your house in Williamsburg and started living in Richmond, venue would be proper in Williamsburg (where you last lived together) and Richmond (where he or she now lives). If you want a divorce, you should hire a lawyer, and it will be cheaper to get one where venue is proper.

If venue is not proper, the defendant must object within 21 days of “service of process” in Circuit Court or on or before the day of trial in District Court. If the defendant fails to object in a timely manner, he or she waives any objection. Service of process is described below.

Courts

Every county and most cities have a court house with a variety of judges for the Circuit Court, District Court, and J&DR Court. There will also be a clerk of court who handles most of the paperwork and can help steer you in the right direction. Each of these courts have different subject-matter jurisdiction, and before you can go to court you need to understand to which court you should go.

General District Court

The District Court hears most cases not requiring a lawyer. Except for cases of less than $5,000 brought in a small claims court, a District Court has jurisdiction in the following situations:

1) Any suit for less than $4,500 must be heard first in District Court.

2) Any suit for an amount less than $15,000 may be heard in District Court.

3) If the case involves personal property of less than $15,000, the District Court may hear a “suit to partition” or divide the property. Personal property is anything that is not land or a building on land. A “suit for partition” is one in which you have the court sell a piece of property and divide the proceeds between the owners. For example, if you and another person own a car worth less than $15,000 and the other person won’t ever let you use the car, you may sue in District Court to have the car sold and split the money.

4) Any suit to recover personal property worth less than $15,000. For example, if someone took your car, you may sue them in General District Court to get the car back.

5) Any suit to force someone to leave your property. If you have not paid your rent, your landlord may sue you in General District Court to get you out of the apartment. Lawyers call this a “suit for ejectment.” Before a landlord can evict anyone, he must give the tenant written notice to pay the rent or leave the property. This is called a “pay or quit” notice.

The General District Court also tries criminal misdemeanors, traffic ticket cases, civil commitments (hearings to declare someone insane), and does felony preliminary hearings in criminal cases. Any time you wish to sue without a lawyer (by yourself, or “pro se”—pronounced pro-say), it is best to sue in General District Court. There are two reasons for this:

1) The General District Court is less formal, and you can argue fairness over the technicalities of the law with a greater chance of success than you can in the Circuit Court.

2) The Circuit Court has automatic appellate jurisdiction over any District Court case worth over $50. When a case is appealed to the Circuit Court, the judgment of the District Court is “vacated” (erased). If you make a mistake in your trial, you can appeal to the Circuit Court and have the case heard just as if it had never been heard before. This basically gives you a chance to start over. If instead, you first file the case in Circuit Court, the only hope for appeal usually lies with the Supreme Court of Virginia, which rarely overturns the Circuit Court.

Circuit Court

The Circuit Court hears most cases requiring a lawyer. It has jurisdiction in the following cases: any case involving an amount greater than $4,500, divorce, or criminal felonies. It also has automatic appellate jurisdiction in cases over $50 heard by the District Court.

If you intend to appeal a civil case from General District Court, you must:

1) Give written notice of appeal to the clerk of court within 10 days of judgment. This must actually be in the clerk’s hand at the end of the ten-day period, so mailing it will not be enough. It must be in writing.

2) “Perfect” your appeal within 30 days. This means that you must:

a) Post bond for the amount of the judgment against you (put up a promise to pay the judgment against you if you lose the appeal; the clerk of court can give you list of people who can help you out with this); and

b) Pay a writ tax (a fee).

If you intend to appeal a criminal conviction from District Court, you must give written notice to the clerk within 10 days. Time is counted from the day of an event, so, if the court renders judgment on a Monday, it is one day to Tuesday, two days to Wednesday, etc. The time clock keeps on ticking during weekends and holidays; but if you must file something by a date falling on a Saturday, Sunday, or holiday, you may file it on the next day the court is open. If you intend to appeal a District Court decision, it is advisable to get an attorney to handle the case in Circuit Court.

Juvenile and Domestic Relations District Court (J&DR)

The J&DR Court hears most cases involving families. It hears cases involving: criminal acts against family members by family members, including those with children in common; orders for spousal and child support, supervision of custody and visitation rights, and juvenile matters. Generally, you want to have a lawyer help you with these cases.

If you have a spouse or an ex-spouse who lives in another state and who owes you support money, the J&DR court is the court that handles collections against that spouse in other states. If you have a copy of the support order, you can generally handle enforcement issues without the help of a lawyer. The clerk of court will guide you through the process, but basically it involves taking a copy of the order to the clerk of the court and filling out a “Motion for Show Cause Summons,” a very simple form.

If a court in another state, city, or county issued the original order for child support, the best thing to do would be to call the Virginia Division of Child Support Enforcement, and they will handle all the paper work for free. They can also help you get the court to change the amount of money owed for support. Their phone number is 1-800-468-8894, and their web address is http://www.dss.virginia.gov/family/dcse.html.

You have a right to appeal an adverse J&DR decision to the Circuit Court.

Small Claims Court

Small claims courts may only hear cases in which the plaintiff is trying to obtain less than $5,000 in damages. A small claims case is filed by filling out a “Small Claims Civil Warrant,” which a plaintiff can get from the clerk of court. The clerk will charge the plaintiff a small fee to file the case and will also give the plaintiff information on procedures followed by the court.

The biggest differences between General District Court and small claims court are that in small claims court no party may use an attorney, and all the formal rules and procedures used in the other courts are suspended. Cases are appealed from the small claims court just as they are from the General District Court.

Filing a Lawsuit in Virginia

When you start a court case, it is called “filing suit” or “filing a case.” About the only courts in which you should even think of filing a case without a lawyer are small claims court and General District Court. Since the court realizes that a large number of people don’t want to use a lawyer, the court has made it easy by developing three forms to file common suits. The clerk can help you fill out the forms if you have any problems. The three forms are:

Warrant in Detinue: Use this form to get your specific personal property that someone else is holding and refuses to give back. You can use this if someone promised to sell you a specific object (such as a particular car, not just any similar car meeting your requirements), but didn’t sell it to you; or if they have taken from you. You may also use it if you let someone borrow something, and they never returned it.

Warrant in Debt: Use this form to get money from someone. You may use it to get payment from someone who has bought something from you without making payments, borrowed money or property from you without repaying or returning it, or injured your body. If the injury is significant, you may wish to see a lawyer specializing in such things. They will usually charge you their costs and one-third to forty percent of your recovery, but they can also make sure you get the most you deserve.

Summons for Unlawful Detainer: Use this form to evict someone from land you own. Five days before filing the Summons for Unlawful Detainer, a residential landlord must give a tenant written notice that rent is due. Most lawyers and judges call this a “Pay or Quit” notice, and no one can successfully file a suit to evict someone until they give the notice to the tenant. No particular form is required, and a letter merely telling the tenant that they owe a certain amount of rent and should either pay the back rent or vacate the apartment within five days will satisfy this requirement. Once the landlord has given the tenant a pay or quit notice and filed suit, the landlord may recover rent due on the property, sometimes reasonable attorney fees, possession of the apartment, and other damages.

You can obtain these forms in the clerk’s office of any courthouse or from the website of the Virginia Court System: http://courts.state.va.us.

The court will charge you a small fee to fill out the form and file it. After you have paid the fee, the local sheriff will serve process on the defendant. That means the sheriff will personally give the defendant a copy of the form, give it to a family member, or tack it to the door of their house or apartment and mail a copy to them. If the person lives outside Virginia, the Clerk will forward it to the Secretary of the Commonwealth of Virginia in Richmond who will mail it to the defendant.

Once You Are Involved in a Suit in Virginia

The clerk will determine what is called a “return date” on which the defendant must appear for a hearing. If the defendant (the person being sued) does not appear on the date set for trial, judgment likely will be rendered in favor of the plaintiff (the person filing the suit) without anything further. This is called a default judgment. If the court gives a default judgment, it may still hold a hearing to determine the amount of money it will award; but if the amount is certain, the court doesn’t need to hold a hearing.

A slightly different rule applies to plaintiffs—if the plaintiff doesn’t show up, and the defendant shows up and denies owing anything, the court sometimes will dismiss the case with prejudice. This means the plaintiff loses and may not bring the case again. If neither the plaintiff nor defendant shows up, the court will dismiss the case, but the plaintiff may refile the case. The best rule is: appear in court when you are supposed to.

There are very few times when the court will set aside a default judgment or allow an absent plaintiff the right to refile a case. Basically, you must be dead or in the hospital and unable to call the court and let them know you can’t show up. If someone tells you that they have dropped a case against you, check with the clerk of court to make sure they have. There was a case in Virginia where a husband told his wife that he dropped a suit for divorce when he hadn’t. She later found out that she got divorced because she didn’t show up! This was eventually reversed, but it cost her a lot of time and money in appeal costs.

Lawsuits Against Military Personnel

               The Servicemembers Civil Relief Act provides for the temporary suspension of civil judicial and administrative proceedings in the local, state, or federal systems that may negatively affect servicemembers who are serving in the United States military.  This law replaces what was formerly known as the Soldiers and Sailors Civil Relief Act.

               This law provides that, upon application of a servicemember (a person serving in the armed forces), a court or agency must stay proceedings for a mandatory minimum of 90 days if the servicemember (1) makes the request is writing; (2) explains why military duty prevents the servicemember's appearance in the hearing; (3) provides a date when the servicemember can appear; and (4) provides a letter from his commander confirming the information provided.  Other provisions are included for additional stays in the proceedings.

               Default judgments entered against a servicemember on active duty may be set aside if the servicemember petitions the court to do so within 90 days of leaving active duty.  The servicemember must show that he has legal defenses in the case and that he was prejudiced by not being present at the proceedings.

               There are other provisions that address breaking leases on dwellings and vehicles, taxation, health insurance, and the lowering of certain debts to a 6% rate of interest.  Any service member who expects to be sued, is being sued, or has questions about any of the matters mentioned above should consult a legal assistance attorney in the local Staff Judge Advocate's office or Naval Legal Services Office.