Thursday, September 15, 2011

Obamacare may yet Fail in Virginia

Obamacare may yet fail in Virginia: What do the recent 4th Circuit rulings in Commonwealth of Virginia v. Kathleen Sebelius and Liberty University v. Timothy Geithner mean?

            On September 8, 2011, the 4th Circuit Court of Appeals in Richmond issued two critical rulings in cases concerning President Obama’s signature health care legislation passed by Congress and signed into law on March 23, 2010, the Patient Protection and Affordable Care Act, sometimes referred to as “Obamacare.”  Procedurally, two United States District Court judges in Virginia the 4th Circuit had previously ruled against the United States federal government, holding in both cases that the entirety of the Obamacare law was unconstitutional. The federal government appealed both rulings to the 4th Circuit Court of Appeals, and the parties argued the issues in briefs and orally before a panel of the appellate court.  The Court of Appeals issued two separate rulings, one in each case, overturning the lower court decisions.

            The legal reasoning in each, however, was far from the popular perception that the Court of Appeals had somehow declared that Obamacare is “constitutional.”  Both focused on a very narrow conclusion which leaves the question of the “constitutionality” of Obamacare open to further challenge.

            In Virginia v. Sebelius, the Commonwealth of Virginia filed suit against the federal government to declare Obamacare unconstitutional, on the grounds that it conflicted with a recently-enacted Virginia statute (the Virginia Health Care Freedom Act) declaring that no Virginia resident “shall be required to obtain or maintain a policy of individual insurance coverage.”  The U.S. government argued that Virginia, as a state, lacked standing to bring the suit n the first place, primarily because Virginia, as a state, suffered no injury as a result of Obamacare’s provision, and because the Virginia state statute lacked any enforcement mechanism and was otherwise ineffective since it merely declared that Virginians were exempt from federal law.  The 4th Circuit ruled in favor of the federal government, found that Virginia lacked standing to sue, and remanded the case to the district court with instructions that the district court dismiss it. 

            In Liberty University v. Geithner, two individuals filed suit seeking an injunction to stop enforcement of the Obamacare legislation, and in particular, the provision requiring individuals to obtain and maintain health insurance.  Their argument was that the individual mandate unconstitutionally required them to purchase a product they had chosen not to purchase, and mandated that they do so from another private party.  Liberty University, also a plaintiff, sued to enjoin enforcement of the law due to its application of certain onerous requirements on “large employers.”  The federal government argued that existing federal law prohibits any plaintiff from obtaining an injunction against the IRS on the stated grounds to prevent it from collecting taxes.  The lower district court found that the penalties and enforcement mechanism in the Obamacare legislation were not taxes, and therefore were not authorized by the Constitution’s taxing power.  Consequently, the federal law preventing injunctions against tax enforcement therefore did not apply.  Interestingly, on appeal to the 4th Circuit, while both sides agreed with the lower court that the specific federal anti-injunction law did not apply, the Court of Appeals disagreed.  The appellate court determined that the Obamacare legislation created a tax and an enforcement mechanism, and therefore the federal anti-injunction law applied, leaving the district court without jurisdiction to award an injunction prior to an actual instance of the tax being collected (the Obamacare penalty for noncompliance goes into effect in 2014).

The 4th Circuit never reached the question of constitutionality in either of the two cases, and therefore, in the 4th Circuit, that is still an open question.  These two opinions, however, should be read and studied by every practicing lawyer and law student as incredibly interesting examples of what happens when you (a) name the wrong party plaintiff, and (b) request relief that cannot be granted. 

Law students in particular should be conscious of the series of seemingly inane (but quite important) hurdles to overcome in every case they plead or file.  Have I named the correct Plaintiff and/or Defendant?  Has my plaintiff actually suffered some form of injury or is he or she granted standing to sue by some other statute or case law?  Can the Court grant me the relief I’m requesting?

Perhaps most importantly, do I have the ability to explain, believably and convincingly, to a Court what logical process I followed to make each decision as I put together my case?

Other jurisdictions have already taken up the substantive constitutional issues implicated in Virginia v. Sebelius and Liberty University v. Geithner.  Most recently, the 11th Circuit Court of Appeals issued a lengthy (304 pages), but fascinating, opinion in State of Florida ex rel. Atty. Gen. v. U.S. Dept. of Health & Human Services, 11-11021 (11th Cir. Aug. 12, 2011).  The 11th Circuit struck down the so-called individual mandate provision of the Obamacare legislation because, the Court said, it exceeds Congress’ constitutional authority to regulate interstate commerce under the Commerce Clause.  Congress does not have the authority, the Court said, to require by law an individual to purchase a product or service from another private party.  The 11th Circuit affirmed the remainder of the law, which stretches to more than 900 pages, as constitutional.  The opinion is an excellent primer on the historical development of Commerce Clause jurisprudence, and is also recommended reading for all lawyers and law students with even a passing interest in constitutional law.

Each of these cases is likely to be appealed to the United States Supreme Court, and the repeal of Obamacare is likely to be a hot-button issue in the 2012 Presidential election.

                                                                        -           Tom Ashton, September 8, 2011

Wednesday, August 17, 2011

What Constitutes Separate Property in Virginia?

Separately owned property does not automatically become marital upon marriage, even when it is placed into joint names. If one party invested separate funds into a marital asset, if they can trace out or prove that investment, they may be entitled to a return of the asset or the amount invested plus appreciation. This is a substantial issue in many cases.
The goal of the tracing process is to link every asset to its primary source, which is either separate property or marital property. Harris v. Harris, 2004 Va. App. LEXIS 138 (2004). See also Mann v Mann, 22 VA. App 459; 470S.E. 2d 605, 1996, holding that the interest passively earned on the husband’s premarital assets are separate.
The Code of Virginia, §20-107.3(A)(1)(iv) defines “separate property” as “that part of any property classified as separate pursuant to subdivision A.3. Code of Virginia, §20-107.3(A)(3)(e) provides that “when marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.” (emphasis added). Code of Virginia, §20-107.3(A)(3)(g) provides that section (e) of this section shall apply to jointly owned property. No presumption of gift shall arise under this section where (ii) newly acquired property is conveyed into joint ownership.
The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property. See Code of Virginia, §20-107.3(A)(3)(a). All of the increases of the real estate in this case are attributable to market fluctuations.
Tracing involves a two-prong, burden shifting test. First, a party has to prove he invested separate property into the real estate, which he did. It is undisputed that all of the money used to purchase the real estate was his traceable separate property. Then the burden shifts to the Complainant to prove, by clear and convincing evidence, that the transmutation was a gift. There is no presumption of a gift that arises from the fact that one party put the real estate in the parties’ joint names. If the party claiming a separate interest proves retraceability and the other party fails to prove transmutation of the property by gift, "the Code states that the contributed separate property 'shall retain its original classification.
            The second issue is the passive appreciation in the value of the jointly titled real estate. Pursuant both to Virginia Code Va. 20-107.3(A), and using the Brandenburg formula, which has never been held erroneous by the Virginia appellate courts, (See Turonis, Supra) All of the passive appreciation on a party’s separate investment in real estate is also separate property. By contrast, although the customary care, maintenance, and upkeep of a residential home may preserve the value of the property, it generally does not add value to the home or alter its character. Martin, Supra.  The Court held that the Wife's evidence that at some time during the twelve years of marriage she personally painted, wallpapered, and carpeted parts of the house does not prove a "significant" personal effort.” These activities constitute part of the customary maintenance and upkeep that homeowners typically perform in order to preserve the home's value; they do not by their nature impart value to the home. Courts have held that the trial judge has a duty "to determine the extent to which [a spouse's] separate property interest in the home increased in value during the . . . marriage."
In the case of Hargrave v. Wienckowski, 2000 Va. Cir. LEXIS 208, the Court states that “traceable separate property that is commingled with marital property, whether to acquire new property or otherwise, is subject to being restored to the contributing party.” The Court analyzes the issue and finds that “parties are under no requirement to contribute their separate property, whether acquired before or during the marriage, to the marriage. If a party does so, he or she does so voluntarily and should be reimbursed for it unless the party intended to make a gift of such property to his or her spouse.” This holding is consistent with the purpose of the Virginia legislature in enacting the equitable distribution law which was to give courts power to compensate a spouse for his or her contribution to the acquisition of property obtained during the marriage.
If tracing separate property is an issue in a case, records proving the separate ownership are very important. Records include bank accounts, HUDs, deeds, mortgage and payments. Property acquired during the marriage or jointly titled is presumed to be marital without proof of a separate investment or ownership. Of course, the easiest way to resolve this issue is a prenuptial agreement.

When does adultery bar spousal support in Virginia?

In Virginia, a spouse is often entitled to spousal support when the other spouse makes significantly more gross income. A rule of thumb is that if one spouse makes 70% or more of the amount earned by the other spouse, there is generally no spousal support awarded. If they make less, than the spouse earning less income can be entitled to spousal support.
Virginia recognizes three types of spousal support: pendent elite, temporary, and permanent. Pendente lite spousal support is spousal support awarded while a trial is pending or after separation and before divorce. Temporary support is also known as defined duration support and can be awarded for up to 50% of the time the parties were married and together. Permanent support is just what it sounds like: permanent or until one of the parties dies or the one receiving spousal support remarries or cohabitates with another person for over a year. Pendent elite is calculated based on a formula (usually the Fairfax Guidelines) while temporary and permanent support is not. Adultery can be a bar to most types of spousal support although not usually pendente lite.
Virginia Code § 20-107.1(B) provides that "no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91," which includes adultery. The bar, however, is subject to one exception: that the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

Tuesday, August 16, 2011

When can a property settlement or marital agreement be set aside as unconscionable?

When can a property settlement or marital agreement be set aside as unconscionable?
Virginia favors written agreements (contracts) especially among married parties. The person claiming the agreement is unconscionable has the burden of proof to prove it. An agreement is unconscionable if it is lopsided and significantly favors one party over the other. However, it is not enough that the agreement be disparate. It has to be so disparate that it “shocks the court.” There must also be some type of wrong doing by the other party like fraud, misrepresentation, or duress of some type. Otherwise, the court will not save one party from their bad bargain.

When is a pre or post marital agreement not enforceable in Virginia?

Virginia Code Section 20-151 provides that a premarital agreement is not enforceable if (1) it was not executed voluntarily or (2) it was unconscionable when executed and the person against whom enforcement is sought proves they were not provided a fair and reasonable disclosure of property or financial obligations of the other party or that they did not voluntarily and expressly WAIVE, in writing, their right to those disclosures. It is thus important that the Agreement contain exhibits showing assets and liabilities of each party or that a specific written waiver of that disclosure be provided. A refusal to provide the financial information can raise suspicions so if the parties are actually all in agreement regarding the terms of an agreement, it is best to include a list of assets and liabilities along with statements of net worth so there is no question of disclosure.

Monday, August 15, 2011

What are schedules I and J in a bankruptcy petition

If you pass the Means Test, the next question is whether you qualify under Schedules I (Income) and J (Expenses). Schedules I and J measure your actual income and expenses but totally disregard any expenses you will get rid of in the bankruptcy. All income counts. Child support counts. Social Security income counts. Unemployment income counts (but not in the means test). Profits you make from your business count but not the gross income of the business. All income counts. Not all expenses count.

 You are not allowed to have too high a budget for discretionary items like recreation. You can tithe up to 10% of your income to churches or give it to charities. Your grocery bill on Schedule J is often less than it actually is. Clothing expenses are limited. What isn’t limited are medical expenses, health insurance, car insurance, and other necessities. Most people actually have more expenses than income to cover them when Schedules I and J are done.

You also want to look at the assets you are allowed to keep to see what you may have to give up to your creditors. Most people can exempt everything they own but check my website at to see a list of items you are allowed to keep in Virginia and West Virginia.

Also, remember bankruptcy consultations are free at the Law Firm of Marilyn Solomon.

What is the Means Test to qualify for bankruptcy?

When the bankruptcy law was totally revised in 2005, a new requirement called "the means test" was added to it. The Means Test is supposed to measure the average income in each state. The debtor's income is compared to the "mean" or "average" state income. If your income is less than the mean income in your state, you qualify to file a Chapter 7 bankruptcy under the law assuming you meet other requirements. If your income is more, than you must take "part two" of the means test.

Part two of the Means Test calculates your particular allowable expenses including priority expenses like child and spousal support and taxes, your secured debt like the debts against your house, car, or furniture, and other expenses like health insurance and medical expenses then determines if you have any money left over to pay your creditors. Basic living expenses are filled in for you depending on the city or county you live in and are based on what the IRS thinks it cost, not what it actually cost. The second part of the Means Test is, thus, partly hypothetical.

If you have no money left over to pay creditors, you qualify. If you do have money left over, you have to file Chapter 13. Many people pay enough for health insurance or medical expenses or support that they qualify even with a very high income.

As it happens, some people have money left over under the second part of the means test but do no actually earn enough money to qualify for Chapter 13 because the means test does not use all of your actual living expenses and for some of your expenses, it substitutes hypothetical ones. It assigns expenses to you based on where you live except for priority and medical expenses. Many people are trapped in the middle and thus have no bankruptcy option available to them. They make too much for Chapter 7 and not enough for Chapter 13.

The good news for Virginia is that the Means Test here is about the third highest in the nation as all the high wage earners in Northern Virginia pull up the average income for everyone. Right now, a family of one (just you) can make up to almost $50,000 and a family of four can earn up to about $86,000. These numbers change every month or two and, because of the economy, have gone down a time or two as well.

If you make more than the mean amount, it is still worth inquiring about Chapter 7 as you may pass part two of the means test and be eligible anyway.

Monday, August 8, 2011

Adultery as grounds for divorce in Virginia

Virginia still recognizes fault grounds for divorce, and adultery is the only one that does not require any waiting period. If you can prove your spouse committed adultery by “clear and convincing evidence,” you can get an immediate divorce. Virginia Code Annotated Sections 20-91(A)(1) is the law providing adultery as a ground for divorce and Section 20-94 provides that it must be within five years of filing suit without any cohabitation after finding out about the adultery.
While adultery eliminates the 6 or 12 month waiting period for a divorce based on separation, it may not make a difference regarding equitable distribution of property unless there is an “economic impact.” Examples of economic impact include things like your spouse spending marital money or income on his or her lover. While the law requires an economic impact, many judges take adultery into account as a negative contribution to the marriage. Also, it is specifically relevant to the consideration of spousal support. If the spouse who wants support commits adultery, they are barred from support unless the other spouse has also cheated or unless it creates a “manifest injustice.” A manifest injustice means it is unfair to deny spousal support. This could be because the cheating spouse has given up a career to stay at home for the sake of the family or because the cheating spouse was physically abused by the other spouse. The determination of manifest injustice is usually fact specific and decided on a case by case basis.

If one spouse committed adultery and both parties want a divorce and just don’t want to wait the 6 or 12 months required, an uncontested divorce can be obtained on the grounds of adultery if the paramour is willing to sign an affidavit admitting to the sexual relationship.

Monday, August 1, 2011

Equitable distribution of marital property in Virginia

Division of marital assets in Virginia is called equitable distribution. The trial court is required to consider ten factors before deciding how to divide assets and debts, but it is typically close to or at a 50-50 division unless there are extenuating circumstances. Fair is not always equal in Virginia. Each case must be evaluated on its own facts. Did you put separate money into a marital asset? Did you inherit property or money? Did you help pay your spouse’s separate debts? Did you personally improve property? Did you gift or deed your spouse real estate or did they do so to you? Did your spouse spend marital money on a lover? All of these issues can have a significant impact on the equitable division of assets in a divorce. Some assets are marital, others are separate while still others are hybrid: part marital and part separate.

If one party has invested separate funds in a marital asset and can trace that investment, the property may be a “hybrid” property, part marital and part separate. The investing party is entitled to reclaim their separate investment if they can prove it, plus appreciation on it, if any, unless the other party can prove, by clear and convincing evidence, that it was a gift to them.

The court is required to decide which property is marital, separate, or hybrid. Separate property belongs to the person who owns it, and the other spouse receives no interest in that property. Separate property includes property owned before the marriage, property inherited by or given to only one spouse during the marriage, and assets acquired with money earned after the parties’ separation. Assets acquired during the marriage are marital even if they are only in one spouse’s name like a pension or retirement account. If one spouse invests personal effort or marital funds into the separate property of the other, the property may also become hybrid depending on the circumstances.
 If part of the pension or retirement account was earned before the marriage, it becomes hybrid property, part separate and part marital. Debts acquired during the marriage are also marital even if they are only in one spouse’s name.

Saturday, July 30, 2011

What kinds of custody are available in Virginia?

What kinds of custody are available in Virginia?

Custody is divided into two types: legal custody and physical custody. Legal custody means the right to participate in major decisions affecting the child like educational, medical, and religious. Physical custody is the right to the child itself or what most people think of when they think of custody.
Primary physical custody is also called primary residence and primary care and is usually the parent the child resides mostly with. Virginia prefers that parents share joint legal custody with primary physical custody being in one parent or the other. However, if there are problems of abuse, drugs, or alcohol, joint legal custody will probably not work. Even if parents share joint legal and physical custody, it doesn’t mean they have equal 50-50 time with the child. Parents can share custody and design a schedule that works best for the child with or without it being 50-50.

A typical schedule provides time with the non-custodial parent every other weekend, usually Friday through Sunday, one night or evening during the week, shared or alternating holidays and the child’s birthday, and one or two weeks during the summer.

Shared custody can be week on, week off, alternating weekends with each parent having two days during the week, or 3 days on 4 days off then switch.

Child support is often paid even when there is 50-50 time with the child depending on the parents’ relative gross incomes. Gross income includes all income from every source for determination of child support.

If you can’t afford health insurance for your child, you should investigate Virginia’s FAMIS program. You can find information about FAMIS at:

Child support calculations are by the Virginia Guidelines. You can calculate your own using information found at:

Friday, July 29, 2011

Who gets to live in the marital home during the separation?

There is not a black and white answer to this question. It depends on a lot of factors. If there are minor children, usually the court will allow the parent with primary custody to live in the house with the children during the separation.

In the past, the party living in the house with the children, usually the mother, asked the court to have the other party, usually the father, pay the mortgage during the separation. The payment of the mortgage was in addition to child support and spousal support. Some courts would order the mortgage paid by the husband, especially if the mother had no job. Others would divide the mortgage in two or deduct the rental value of the house from the amount of the mortgage, charge the person living in the house with the rental value, and divide the remaining amount either equally or in proportion to the parties’ income.

These days, an order for payment of the mortgage often depends on whether or not there is any equity in the house. Most divorcing couples don’t have any equity in the house so the court is not charged with preserving the asset during the separation period so it can be divided later. Often the court won’t even divide the deficiency or upside part of the house in the divorce as that can possibly prevent one of the parties from discharging the debt in bankruptcy later.

If there are no children, it is more difficult to decide who lives in the house. The court will not kick out a spouse if you are still together unless there has been domestic violence in which case the one attacked can get a protective order forcing the other spouse to leave. Short of violence, each spouse has the right to live in the house and the court won’t make either one of them go unless there are fault grounds causing the divorce like adultery in which case the court will often order the cheating spouse to leave (but not always, especially if there are children involved). Who gets the house during the separation depends on your particular situation.

Thursday, July 28, 2011

How to avoid foreclosure

A lot of clients ask me what to do to stop a foreclosure on their home. There are several options that may be available: deed in lieu of foreclosure, modification of the loan, or short sale. Here is the difference.

Usually, a deed in lieu of foreclosure can only be done when there is only one mortgage on your home. If you have a second mortgage, equity line, or judgment or tax lien, it is usually not possible to do a deed in lieu. How this works is the mortgage company takes back the house instead of foreclosing on the house. They wipe out any deficiency between the value of the house and the amount owed on the loan. The bank keeps the house, and the homeowner can walk away with no debt owed to them.

A short sale means the homeowner puts the house on the market for sale and sells it. It is more difficult to do a short sale when you have more than one loan because all the lien holders have to agree to do the short sale and how to divide up the money received. You need to receive permission from the bank to do a short sale. Most of them require a “hardship letter” to qualify which means you need to explain why you hare having a hard time and the bank gets to decide if your reason qualifies. The most commonly accepted reasons are medical expenses, job lay offs, and divorce but the bank considers many problems as hardships. They appraise the house to get an idea of how much to sell it for. The house is sold for less than is owed on the mortgage (you sell it “short” of your loan amount). The bank forgives the difference.

Another option is refinancing. Many homeowners cannot refinance because their house is upside down or underwater (you owe more on it than it is worth). Sometimes the bank will cooperate any way but, again, if you have more than one mortgage this is probably not an option for you unless you can refinance the amount you owe to both. There are some federal programs around to assist homeowners but they have very particular qualifications and you have to make every payment on time if they decide to give you a chance. Most consider these programs to be failures, but some people have successfully refinanced with them. Some of those programs are:

Homeowner Affordability and Stability Plan (HASP) also known as the Making Home Affordable Plan (MHAP)

Home Affordable Modification Program (HAMP)

Home Affordable Refinance Program (HARP)

Hope for Homeowners (H4H)

A new program to help with second mortgages (second lien, home equity loans) has just started too.
Home Equity Loan Modification (HELM)

Here is a good website for more information on the federal programs available

Wednesday, July 27, 2011

bankruptcy, student loans, and judges

When the bankruptcy law was overhauled in 2005, there were major changes regarding discharge of student loans. In the last, certain student loans could be discharged including private, non-government guaranteed loans and ones that were very old. Now, even those cannot be discharged. The only exception is for “hardship” which has been decided is almost exclusively for permanent disability of the debtor or, maybe, the debtor’s child.

On another note, Judge Krum, the bankruptcy judge for the Western District of Virginia for over 20 years, announced that he is retiring. A new judge has not been determined yet.

In Frederick County, Virginia, we are still waiting to find out which judge the General Assembly will choose to replace Judge Prosser who retired in February of this year. There are several names up for consideration. Meanwhile, the circuit judges of Winchester and Shenandoah Counties along with retired judges from other circuits are doing their best to keep Frederick County’s docket current.

division of marital debt in Virginia

Virginia Code 20-107.3 which distinguishes separate and marital property and provides the rules that the court uses to divide up marital property between spouses was recently changed to include rules about debts. Before the change, there was no provision distinguishing “separate” and “marital” debt or instructing the court how to divide them. Some courts routinely divided debts 50-50 while others divided them more in proportion to the parties’ relative incomes. Now the Court must sort out the debts according to the reason they were incurred (marital purpose or separate one). Even student loans can be considered marital if they were incurred for a “marital purpose” like increasing one spouse’s earning ability. The law was changed in response to rulings by the Court of Appeals regarding division of marital debt.  

Tuesday, July 26, 2011

Welcome to my new blog about Virginia divorce and bankruptcy law

My name is Marilyn Solomon. I've practiced law in Virginia for over 20 years. My firm focuses on divorce and bankruptcy law, and I will be blogging about interesting aspects of both. If I have a chance, I will also answer questions from my blog followers so feel free to ask!

In July of this year, Virginia finally made a change to the property Virginia citizens are allowed to keep. You used to be able to keep $2,000 of equity or value in a vehicle. As of July 1, 2011, you can now keep up to $6,000 in a vehicle of your choice. You can also keep up to $3,000 in a gun. For more information about bankruptcy or divorce, please feel free to review my website at:

I am now also offering super fast uncontested divorces in Virginia at very affordable prices. I can get people divorced in less than 3 weeks if both parties are willing to sign the papers. I can also handle a divorce anywhere in Virginia and over the internet or telephone so no appointment is necessary.

I look forward to hearing from you with questions and providing information as we go.


Marilyn Solomon