When Unmarried Couples Buy A Home Together

Today, more than ever before, unmarried couples are deciding to purchase homes together. Presently, more than eight percent of all owner-occupied homes in the U.S. are owned by unmarried couples. Although there are many reasons why purchasing a home with a non-spouse is a good idea, the parties should realize that almost half of such cohabitations break up within five years and plan accordingly.

When unmarried co-owners decide to go their separate ways, serious differences and problems usually arise just as they do when married co-owners split up. Unfortunately for unmarried co-owners, however, they do not have the benefit of either the protections provided for married couples by State laws nor do they have an established body of case law to rely upon as married couples do.

Consequently, when unmarried couples purchase homes – or any other real estate – together, it is important for them to have a written agreement that spells out their respective rights and responsibilities concerning the property, not only while they live there together, but also if and when a time comes when they decide that living together is not working out the way that they had hoped it would.

A properly written Homesharing Agreement would deal with at least the following issues:

1. Acquisition

A. Earnest Money Deposit and Downpayment. Who pays how much?

B. Closing Costs. Who pays how much?

C. Liability. Who signs the purchase money Note for the loan?

D. Title. Who gets what percentage of ownership? Does the title pass to the survivor if one of them dies?

2. Ongoing Payments

A. Mortgage. Who pays how much? Rent?

B. Real estate taxes. Who pays how much?

C. Insurance. Who pays how much for hazard and liability insurance? Other Insurance? Who and what is covered by the policies?

D. UOA/HOA/POA fees (if applicable). Who pays how much?

E. Utilities. Who pays how much?

F. Maintenance, Repairs, Replacements. Who pays how much for each type of expense? Who decides what is needed and when?

G. Improvements. Who pays how much? Who decides what is to be improved and when?

H. Other Expenses. Who pays how much for any other expenses?

3. Occupancy. Who is entitled to occupy what portions of the property? May a party lease their space to someone else?

4. Personal Property. Who owns what personal property acquired prior to homesharing? Who owns what personal property acquired during homesharing?

5. Sale or Transfer of Interest. Under what circumstances will a party be allowed to sell or transfer their interest in the property; or compel the sale or refinance of the entire property? Put/call options? Who is entitled to stay? Who must go?

6. Management/Control. What degree of agreement (unilateral? unanimous? majority?) is necessary between/among the parties before a decision can be made that materially affects the condition, use and/or enjoyment of the property?

7. Default. What happens if one party cannot pay their share of any required payments?

8. Distribution of Proceeds upon Sale. What is the priority of distribution of funds upon sale? Who takes how much of the loss if the property cannot be sold for the price that was paid for it?

9. No partnership. The Agreement should state that it does not create a partnership for any purpose, including federal income tax purposes.

10. Termination of Agreement. Under what circumstances, if any, can a party terminate the Agreement?

Properly planning, in advance, for these types of contingencies can spare both parties a great deal of acrimony and emotional distress, not to mention thousands of dollars of expense, if and when they decide to go their separate ways.

Uniform Power of Attorney Act

The use of Powers of Attorney (“POAs”) has become commonplace in all manner of transactions. In its most basic form, a POA authorizes someone to act on your behalf. Sometimes, POAs are used for convenience or expediency. For example, a party to a real estate contract might grant a POA to an agent to execute the necessary paperwork. Other times, POAs are used when the principal lacks the capacity or ability to make certain decisions for himself. In such situations, POAs can be used to manage or sell property, authorize appropriate medical care, and provide for dependents. What happens, however, when a POA is granted to someone that does not have the principal’s best interests at heart? What remedies are available to the principal and/or his family when it appears that the person entrusted with the POA is self-dealing?

In response to the deepening flood of litigation involving Powers of Attorney (“POAs”), the Virginia General Assembly recently promulgated Uniform Power of Attorney Act (“UPAA”)(Va. Code Ann. §§ 26-72, et. seq.) Prior to the enactment of UPAA, there was no comprehensive statutory regulation of POAs. Instead, the courts were largely guided by common law. UPAA provides specific enumeration of an agent’s duties under a POA and instruction on how others may challenge the actions of an agent.

The agent must:

1. Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;

2. Act in good faith; and

3. Act only within the scope of authority granted in the power of attorney.

With certain exceptions, the agent must also:

1. Act loyally for the principal's benefit;

2. Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

3. Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

4. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

5. Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and otherwise act in the principal's best interest; and

6. Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:

a. The value and nature of the principal's property;

b. The principal's foreseeable obligations and need for maintenance;

c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

d. Eligibility for a benefit, a program, or assistance under a statute or regulation.

Upon suspicion that an agent has violated any of the duties enumerated above, anyone of the following persons may petition the circuit court to review the actions of an agent:

1. The principal or the agent;

2. A guardian, conservator, personal representative of the estate of a deceased principal, or other fiduciary acting for the principal;

3. A person authorized to make health care decisions for the principal;

4. The principal's spouse, parent, or descendant;

5. An adult who is a brother, sister, niece, or nephew of the principal;

6. A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate;

7. The adult protective services unit of the local department of social services for the county or city where the principal resides or is located;

8. The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and

9. A person asked to accept the power of attorney.

An agent that violates the UPAA is liable to the principal or the principal's heirs for the amount required to:

1. Restore the value of the principal's property to what it would have been had the violation not occurred; and

2. Reimburse the principal or the principal's heirs for the attorney fees and costs paid on the agent's behalf.

This statutory scheme is only beginning to be tested in Virginia courts. Case law will further hone and define the duties owed by an agent under a POA and the remedies available to others upon a finding that the agent has breach his duties to the principal. But the UPAA is the first step toward a establishing a uniform framework for handling claims involving POAs.

Reach for the Stars, and You Might Get Burned

Usually, when clients come to us about real estate deals gone bad, the facts revolve around a buyer and a seller having a dispute about whether the deal has to go forward. Every so often, however, we get an inquiry about a dispute between a buyer or seller and his or her real estate agent. One such dispute recently led to a headline-making ruling about sanctions in the context of frivolous claims in a lawsuit.

In 2007, our clients – Husband and Wife – sought representation in claims that had been made against them by a former (fired) real estate agent (the Agent). The Agent was not only suing for commission, but rather for millions of dollars, plus attorney’s fees, claiming defamation (for filing a complaint about her with the Virginia Real Estate Board), conspiracy and tortious interference with contract. The Agent also sued the buyer’s agent. As you might imagine, our clients were reeling.

All attempts at settlement failed and the case was litigated. We argued that the Agent had been properly terminated in light of the terms of the listing agreement, and therefore was not entitled to any commission. Even if she had been entitled to a commission, it would have been two percent of the sales price of the property, but she wanted five percent of a sale she suggested, but which never came to fruition. Two different attorneys made this claim on the Agent’s behalf prior to filing suit. Once suit was filed, however, the Agent’s demand increased to not only five percent of the full sale, but also six percent of a future sale based on the assumption that the buyer she had found would’ve torn down the house, built a “McMansion” on the site, and sold the place using her as his agent. Additionally, the Agent claimed that the complaint with the VREB entitled her to in excess of a million dollars in defamation damages, and that Husband had conspired with the buyers’ agent to “cut her out” of the deal. No evidence of any such conspiracy existed, nor would it make any sense from the buyers’ agent’s perspective.

Piece by piece, we got various parts of the lawsuit dismissed. The court agreed that the defamation claims for making a complaint to the Real Estate Board should be dismissed under the “absolute privilege” for defamation. The law in Virginia states that parties to litigation have an absolute right to speak without fear of being held liable for libel or slander; and that privilege also applies in “quasi-judicial” contexts such as administrative agencies, as long as certain facts apply (like subpoena power, oath-taking, and so forth – all of which applied to the Real Estate Board).

The case proceeded to trial on the claims of (1) tortious interference with a contract expectancy (that is, improperly interfering with another person’s expected contract, causing the contract not to occur); (2) conspiracy to harm a business (that is, joining with another person to hurt someone else in commerce); and (3) defamation (lying about another person – in this case, Husband allegedly lying to the buyers’ agent about the Agent in order to further the conspiracy to “cut her out of the deal”).

The evidence consisted of the following: (1) Husband supposedly disliked the plaintiff; and (2) Husband and the buyers’ agent had spoken together by phone. Husband admitted to speaking with the buyers’ agent – in fact, part of the reason Wife fired the Agent was the fact that the buyers’ agent said she had been discouraged from making an offer on the property! There was no evidence that Husband acted improperly in advising Wife to fire the Agent. In fact, evidence was introduced that Wife came to Husband for advice, and after presenting the matter to an attorney who advised him to fire the Agent, Husband advised Wife accordingly. In Virginia, the giving requested advice is a defense to a tortious-interference claim, so Husband appeared to be free of liability on that count.

Likewise, no evidence was introduced that Husband had entered into an agreement with the buyers’ agent to get the Agent fired. So, at the close of the Agent’s case, toward the end of day two of trial, we and the attorney for the buyer’s agent moved to strike the evidence – a Virginia procedure that basically accuses the plaintiff of having failed to prove his or her case. As we arrived on day three to continue our arguments on the Motions to Strike, the Agent “nonsuited” her case against the buyers’ agent and her brokerage firm. A nonsuit is a voluntary dismissal “without prejudice,” which basically allows a plaintiff one free “do-over” in most cases, giving the plaintiff a certain amount of time to refile his/her case. So the buyers’ agent was out of the case, though subject to the possibility of a future second lawsuit. Husband remained as a Defendant, and argument on his Motion to Strike continued. As the Judge was prepared to rule, the Agent nonsuited the remaining case against Husband.

All defendants joined in asking the trial court to allow a post-trial motion for sanctions under Virginia Code § 8.01 271.1, which bans frivolous lawsuits. The court agreed to let the defendants present their arguments, and after quite of bit of hard-fought post-trial motions, including multiple pleadings, hearings, and a great deal of evidence, the trial court found that the Agent had filed a frivolous lawsuit in violation of the statute, and as a sanction it awarded reasonable attorneys’ fees to the defendants in the case. Our clients were awarded $158,318.40 in sanctions against the plaintiffs and their attorney; and the other defendants were awarded $113,778.06 in sanctions. A suit borne out of what the Agent saw as a loss of commission totaling – even counting her speculative “future sale” – approximately $168,000, and built upon emotion and speculation, rather than a solid legal position, led to a “landmark” decision on sanctions.

Why was the Agent fired, you ask? Well, among other things, because – in violation of her contract – she never even listed the property for sale.

The funny thing is, if the Agent hadn’t been fired, at best she was entitled to $13,940 (2% of the actual sale that occurred, since the buyers had an agent); yet she was seeking $37,500 (5% of the proposed sale she found, even though that one didn’t occur), plus $130,500 (6% of the “future commission” sale), for a grand total of $168,000 in lost commissions. In seeking millions of dollars, she got “aggressive” (to use her lawyer’s term); in the end, it cost her. A lot.

The case is currently on appeal to the Virginia Supreme Court. No word yet about whether the Court will take the appeal.

Equitable Distribution vs. Community Property – The Line is Fading

Simply put, “equitable distribution” is meant to be and do what the name implies: distribution of property upon divorce into fair -- not necessarily equal -- shares. This is accomplished by taking a number of factors into consideration to determine the financial position of the parties after divorce. In Virginia, similar to other equitable distribution states, the factors are:


1. Each party’s contributions – financial and otherwise – to the well-being of the family and the acquisition, care and maintenance of marital property;

2. Length of the marriage;

3. Age, physical and mental condition of the parties;

4. Cause of dissolution of marriage, including fault grounds;

5. How and when marital property was acquired;

6. Debts and liabilities of the parties and whether debt is secured by marital property;

7. Liquidity – or lack thereof – of marital property;

8. Tax consequences of distribution to each party;

9. Use of marital funds for separate purposes, dissipation of marital funds done in anticipation of divorce after separation;

10. Other factors deemed necessary or appropriate to consider to arrive at a “fair and equitable monetary reward.”


If after reading the statutory language you are no closer to understanding what you are likely to receive in an equitable distribution proceeding, then you are halfway to reaching the proper mindset necessary for entering into divorce litigation. The lack of predictive quality to this and similar statutes around the country -- while not purposefully so -- is the best of many reasons to try and reach a settlement as to the distribution of your property rather than take the matter to trial. There is not always a financially feasible as well as legally sound reason to leave distribution to a Judge, to whom such statutes offer no more guidance as to what is “equitable” than they do to you or me.

However -- whether it is a product of the vagueness of the statutory factors or a testament to their validity -- many if not most equitable distribution divorce decrees ultimately divide the marital property 50/50! In other words, equitable distribution divorces tend to look a lot like “community property” divorces. Confused? What if I told you that five of the country’s community property states subject the spousal shares to equitable distribution? What does this all mean to the bottom line?

The best way to try and understand what you might be facing is to avoid the distribution consideration and focus on the classification of your property, because therein lies the similarity between the states as well as the true reason that we are finding 50/50 splits across the map. Regardless of where you live, the classification of property drives the distribution and if you understand what you have, you can understand how much you’ll keep.

For the most part, community property states have two classes of property: “community” and “separate.” These jurisdictions consider everything acquired during the marriage to be community property except that acquired by gift or inheritance. Everything acquired prior, or by gift or inheritance, is “separate.”

Equitable distribution states classify property as marital, separate, or part-marital/part-separate. “Marital property” is similar to “community property.” “Separate property” is property acquired prior to marriage; property received in exchange or as proceeds of separate property, regardless of when acquired; and gifts or inheritances, regardless of when acquired. “Part-marital/part-separate” occurs when marital is commingled with separate property or when the non-owning spouse adds value – either monetary or non-monetary – through personal efforts.

In the vast majority of cases – not the most notable, but the most common -- most property is not separate. You find more separate property in very short marriages or those governed by prenuptial agreements – ironically, two factors common in “Hollywood marriages.” These are the exceptions, not the rules. Because most property is classified as community, marital, or at least part-marital, you will find that most divorce decrees split most property 50/50.

So, where does all of this lead us? The moral of the story is that if your attorney suggests early settlement negotiations and begins with the notion of an equal division of property and works from there -- regardless of where you live -- you are likely getting better advice than if your attorney tells you he’ll help you “take him for all he’s worth,” because, in fact, he’s probably only worth about half of what you were worth together.

Letters of Intent

When you are purchasing a business or a piece of commercial real estate, you will almost always start off with a Letter of Intent.

What is a Letter of Intent?

Such a letter sets out the basic economics of the transaction – what is being sold (assets or stock?) and for how much, payable when and how. Some other key terms are usually set out in simple terms -- e.g., assumption of liabilities or not, non-competes for key personnel, and a closing date. The Letter of Intent lets each side know that it is worth the time, energy and expense of doing “due diligence” and having a formal contract drafted.

Clients always rightly want to know if the Letter of Intent will be binding or not. The short answer is that for the most part, they will not be binding – for the simple reason that it is usually in the interest of both parties to check out (perform “due diligence”) the other side to make sure they can get what they want out of the deal before committing themselves legally to the transaction. So, there will usually be a provision that says that the Letter of Intent is not binding on either party until a formal contract is signed.

However, there are two areas that most Letters of Intent expressly provide are binding on the parties – and binding as soon as the Letter of Intent is signed. First is an agreement not to disclose the confidential information from the other party, and there is usually an extended definition of what is, and what is not, confidential. Second, there may be an agreement (usually by the Seller) to deal exclusively with the Buyer for some period of time. This is to allow time to reach an agreement without having the rug pulled out by the other side’s trolling for better deals with others.

There may also be circumstances where one or both sides may have good reason to make a Letter of Intent binding. This should not be done lightly, however, and the Letter of Intent may be written so as to provide an “escape clause” under certain conditions.

The most important things are to clearly state each side’s expectations and assumptions going into the deal and to make an intelligent and transparent choice regarding which terms, if any, of the Letter of Intent will be binding.

Money Laundering Laws Can Snare the Unsuspecting

When most people think about “money laundering” – the movement of illicit funds for the purpose of concealing the true source, ownership or use -- they naturally associate it with organized criminal syndicates like drug cartels, the Mafia, mobsters, or violent gangs. According to law enforcement,

"Through money laundering, the monetary proceeds derived from criminal activity are transformed into funds with an apparently legal source. Money laundering provides the fuel for drug dealers, terrorists, arms dealers and other criminals to operate and expand their enterprises. We know that criminals manipulate financial systems in the United States and abroad to further a wide range of illicit activities."

Yet, to an ever-increasing extent, ordinary tax-paying, crosswalk-crossing citizens find themselves among those caught in the net meant to snare these more traditional targets of federal criminal investigations.

Take the recent case of Gus and Greta Mueller (names, places, etc., have been changed). Gus worked for years as an IT specialist at a local hospital. With the help of their two adult sons, both patent attorneys, they recently purchased their dream home in Annandale. In order to make the deal work, they needed some extra money for the down payment. Unbeknown to Gus, Greta, a traditional stay-at-home mom, had been saving up portions of the “cookie money” that Gus gave her for household expenses each payday in a secret stash. After forty years, it added up to many thousands of dollars, just enough to make their dream home affordable.

Nice story, isn’t it? Well, it has a scary ending. When Greta told the mortgage broker about the extra cash, the broker advised Greta that if she deposited more than ten thousand dollars at one time, it would be reported to IRS and they would face extra scrutiny from the taxman. So, Greta only deposited $9,900 at a time. Big mistake, since Big Brother, in the form of a federal organized crime task force, was watching.

You see, in order to keep track of potential money laundering operations, the federal government requires banks and other financial institutions and commercial actors to report any transaction involving more than ten thousand dollars in cash or cash equivalents (e.g., cashier’s checks, money orders). And, to prevent mobsters from evading detection of large cash transactions by, say, breaking up $15,000 in cash into three segments and depositing each one in a different bank or branch office, the feds invented a type of money laundering crime called “structuring.”

Structuring is the illegal act of breaking up a larger transaction that would normally have to be recorded or reported into smaller transactions in order to avoid the recordkeeping or reporting requirements. The idea is that money launderers are familiar with the dollar thresholds that require recordkeeping and reporting. Therefore, in order to remain anonymous and avoid the detection of law enforcement agents, they will “structure” their transactions so that the recordkeeping or reporting requirements will not be triggered.

Bank employees are routinely warned to be on the lookout for structuring transactions that might be for the purpose of avoiding these federal recordkeeping or reporting requirements. If they spot activity that might constitute structuring, they are required to send a Suspicious Activity Report (SAR) to the feds. Here is the content of a typical banking notice regarding structuring:

"Likewise, it is illegal for you or your employees to assist anyone in structuring transactions in order to avoid recordkeeping or reporting requirements. For example, you may not tell or even imply to a customer that they can avoid providing information by conducting a smaller transaction. Some criminals may attempt to trick you or your employees into allowing them to structure transactions by splitting up transactions with several accomplices or by trying to 'con' you with a hard luck story. You need to be on the lookout for structuring so that you can prevent it from occurring."

So . . . Gus and Greta’s bank, noticing a series of deposits just under the ten thousand dollar threshold, sent a SAR about them to feds and the task force swooped in. Without any advance warning to Gus and Greta -- and absent the slightest evidence of any underlying criminal activity as the source of the funds – the task force obtained a seizure order from a federal magistrate and confiscated over twenty thousand dollars from Gus and Greta’s bank account. They then visited Gus at his workplace and interrogated him (and later Greta) about these suspicious transactions.

Fortunately, Gus and Greta had the sense and the resources to hire a lawyer with some experience in this area. Ultimately, no criminal charges were brought and much of the seized funds were eventually returned. But the task force got its pound of flesh, Gus and Greta had the scare of a lifetime, thousands of dollars in legal fees were expended, and a great deal of investigative time and effort – time and effort that could have been far better spent chasing actual money launderers with real illicit funds – was wasted treating Gus and Greta like gangsters.

‘Tis the Season…for Holiday Visitation

The holidays can be a difficult time of year for couples who have recently separated. Parents may be attempting to establish visitation for the holidays, and they may not have time to place a motion for visitation on the court’s docket. Here are a few suggestions for amicable resolution of holiday visitation.

1. A fairly common visitation schedule provides that one parent has the child for the entire winter break from school in odd-numbered years, and the other parent has the child for the entire winter break in even-numbered years. This approach typically factors in who will have visitation during the Thanksgiving holiday and the child’s spring break, and may not provide the best resolution for parents dealing with the pendency of Christmas break.

One approach, when discussing only winter break, is to divide the break in half, with one parent receiving visitation for the Christmas portion and the other parent receiving visitation for the half of the break containing New Year’s. Parents simply divide the child’s winter break equally.

A second potential solution, for parents who hope to both spend time with the child on Christmas, is to divide Christmas itself. One parent has visitation on Christmas Eve and a portion of Christmas morning, and the other parent has visitation for the remainder of Christmas morning until the following morning.


2. Think about geography when creating a schedule. Where do each of the parents and the child reside? Consider where extended family members one may plan on visiting live when determining the best way to arrange for the holidays. Factor in how much time the child is potentially going to spend traveling, how this travel will affect the child’s Christmas, and how many transitions the child may be subject to during the week.


3. Most important, remember that this is also your child’s holiday. As a parent, you already realize a marital separation is difficult on your kids. Consider your son or daughter’s needs first when creating a schedule. Do not include him in the discussions and do not ask him if he has a preference as to where to spend the holidays. Remember that these are decisions best made by adults and one is only placing stress on a child when attempting to include his input.

Parents: Your word is your bond.

          If a supervising parent agrees to host her child’s friends, what legal duties or consequences arise? The Virginia Supreme Court recently heard argument in the tragic case of Kellermann v. McDonough, 679 S.E.2d 203, 2009 Va. LEXIS 79 (Record No. 081718) (2009).
In this case, Michael Kellermann agreed to let his 14-year-old daughter Jaimee visit her friend Becka McDonough in December 2004. When he dropped off his daughter with Becka's mom, Kellerman specifically instructed her not to let Jaimee be driven anywhere by inexperienced drivers. "No boys with cars," he emphasized. McDonough agreed to Kellermann's instruction and promised to take good care of his daughter.
          Later that day, Paula McDonough dropped off the girls at a local mall and movie complex. After the girls attended a movie, Becka called her mom and asked for permission to have her friend, Nate (who had a reputation for reckless behavior), drive them home. Mrs. McDonough agreed to let the girls ride with Nate. Jaimee reluctantly got into the car after fruitlessly searching for another ride home. Once in the car, Nate frightened Jaimee by driving erratically. She begged him to slow down. Jaimee texted her father stating that she feared for her life. A few moments later, Nate’s vehicle swerved out of control and hit a tree. Jaimee died of her injuries the next day.
          The administrator of Jaimee’s estate sued the McDonoughs alleging wrongful death. The lawsuit alleged that the McDonoughs had agreed to supervise Jaimee and had promised to enforce Mr. Kellermann’s “no cars with boys” instruction. The lawsuit further alleged that the McDonoughs breached their duty of reasonable and ordinary care by allowing Jaimee to ride with Nate. The trial court dismissed the lawsuit finding that the pleadings were insufficient to support a wrongful death claim. The Virginia Supreme Court reversed:

"We hold that when a parent relinquishes the supervision and care of a child to an adult who agrees to supervise and care for that child, the supervising adult must discharge that duty with reasonable care. However, such adult who agrees to supervise and care for a child upon the relinquishment of that care and supervision by the child's parent is not an insurer of the child's safety. Rather, the supervising adult must discharge his or her duties as a reasonably prudent person would under similar circumstances.

In this case, Kellermann pled sufficient facts that support the existence of this common law duty. As we have already stated, both Paula and Paul McDonough invited Jaimee to visit their family, and the McDonoughs knew Jaimee was a 14-year-old child. Kellermann alleged that Jaimee was in the care of the McDonoughs for approximately two days, that she was dependent upon their supervision and care, that they breached their duty to supervise and care for her, and that she died as a result of the McDonoughs' breaches of duty."

          The Virginia Supreme Court explained that it was grounding its parental liability ruling in common sense:

"If this Court were to agree with the McDonoughs, that they do not owe a duty in tort to supervise and care for a child whose parents have relinquished such supervision and control to them, such holding would yield absurd results. For example, an adult who agreed to supervise and care for a group of four-year-old children could permit the youngsters to play in a street at a dangerous and busy intersection, and yet that supervising adult would not be subject to tort liability for her negligent supervision and care. Additionally, under the McDonoughs' view of this case, an adult who agreed to baby-sit and care for a group of four-year-old boys in her home overnight could allow the boys to play with loaded pistols without being subject to any tort liability in the event one of the boys fired a pistol and killed another child."

          Equally important, the Virginia Supreme Court held that a claim could proceed against Paula McDonough on the separate theory that she had assumed an express duty to render services to Jaimee by accepting Michael Kellermanns’ conditions and by promising that she would “take good care of” Jaimee.
The case was sent back to the circuit court for trial. The Virginia Supreme Court has made clear that parents who agree to supervise other minors have a duty to provide reasonable care and supervision. If the supervising parent agrees to certain terms and conditions imposed by the drop-off parent (“No cars with boys”), that agreement can form the basis of a heightened duty. All parents should be aware of this – whether they host sleepovers, birthday parties, camping trips, or play-dates. Do not agree to abide by the rules of another family, unless you really intend to honor those rules.

A Bitter Homecoming

The return home of a wounded soldier is not always accompanied by scores of hugs and tears of joy at the airport. Many return home to domestic and financial problems which developed -- but of which they were completely unaware -- while they were overseas. When compounded by health issues such as traumatic brain injury (TBI), PTSD, or other injuries requiring frequent surgeries, long rehabilitation and psychological recovery, the results can be disastrous. Health care is covered, but legal assistance is not, and in many cases it is as sorely needed.

Long absences and the physical and emotional effects of serving in a war can destroy a couple, and in turn, a family. Spouses left behind are not always equipped to deal with the separation, fear and anxiety that deployments cause, and can find themselves even less prepared to deal with a severely injured husband or wife. When the injuries are not visible, but rather psychological, such as PTSD or the manifestations of a TBI, developing understanding and patience can be impossible for some. As a result, many soldiers return home to find that their marriages are falling apart. Trying to put your marriage back together while the doctors put you back together is not easy, and soon, a newly-returned veteran may find herself in need of legal advice as much as medical services. Unfortunately, the VA currently does not serve this need.

These clients’ situations are unique, even if the legal issues they are facing are not. For example, a diagnosis of PTSD can be the difference between a grant of joint custody and supervised visitation. This writer has seen the injuries suffered by a wounded veteran used against him in a custody battle in a shameless manner, and the bald-faced assertions and baseless arguments accepted unquestioned by the Court. In this case, a wife who became “estranged” from her service-member husband while he was in Afghanistan claimed that he “came back different,” citing PTSD. At first -- with no one truly championing the husband’s cause, and press coverage giving an impression that the war was creating monsters – her assertion was enough to lend credence to a fabricated protective order petition and sole custody claim. This particular soldier did come back different, but not in the ways claimed. He had lost some of his mobility, and his retention skills needed some rehab, but he was still the loving father he had always been. Thankfully, he also hadn’t lost his ability to stand firm in the face of adversity. By listening to his story and continuing to fight, we were able to turn the tables and obtain sole custody of the children this soldier hadn’t been permitted to speak to for six months. Now his spouse has visitation when he agrees.

For those who decide to serve these clients – and everyone who can should -- it is crucial that beyond the marital issues and financial circumstances, one become educated as to what the client has been through and what he or she faces. Learn not only the true nature of any medical diagnoses and their manifestations, but the treatments, side effects, treatment schedules, and even VA disability classification procedures. While we who have not served can never understand what a soldier goes through in a war zone, we can learn what they are facing upon their return, and we can -- for a change -- fight their battles.

Default clause in your Will

Most people provide for their spouse and children in their Will. And if a child predeceases you, it is generally provided that his or her share will go their descendants.
But what if your spouse and all your children predecease you? This is, in effect, what happens when there is the catastrophic accident. To whom do you want your property to go? If you have said nothing in your Will, then it will go to your "heirs" or your closest relatives. Not so bad. But what about your spouse's family? If you had died first with all of the kids and your spouse had survived a few days, then everything would go to your spouse's "heirs." In either example, this is not what most people would prefer.
If they have thought about it, most will provide that some share goes to one spouse's family and some share will go to the other spouse's family. Often this is expressed as a percentage: 50% to my heirs and 50% to the heirs of my spouse. This is actually a very simple and fair way to handle a very unlikely event.
If you do want to keep your assets in the family, then the split doesn't have to be a 50/50 split. It can be 60/40 or 80/20. The important thing is that both Wills have the same provisions so that, let's say, husband's family gets 40% of the family assets and wife's family gets 60% of the family assets. How you determine what percentage goes to which spouse's family can depend on one or more of several factors:
1) From which side of the family did the family assets come
2) Which side of the family needs to the assets the most
3) Which side of the family do you like the best.

There are other options for a default, like a charity or friends. The most important thing is that your Will provide for what you would like to have happen.

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Rich, Rosenthal, Manitta, Dzubin & Kroeger, LLP is pleased to announce that Katelin T. Moomau, formerly employed at the Reese Law Office, has joined Rich Rosenthal Manitta Dzubin & Kroeger, LLP, as a litigation associate, with an emphasis in family law and civil litigation. A graduate of McDaniel College, where she earned a bachelor of science degree in 2004, Katelin worked for the Maryland General Assembly as a Legislative Assistant to Delegate Karen S. Montgomery. Katelin received her J.D. in 2008 from Catholic University's Columbus School of Law and continued working for the Maryland General Assembly in the Amendment Office, a branch of the Office of Legislative Affairs. During law school Katelin was also a law clerk at Lobel, Novins and Lamont, assisting the firm with tax, trusts and estates and general civil litigation. Katelin is a Virginia-certified Guardian Ad Litem for children. She is a member of the the American Bar Association, the Fairfax County Bar Association, and the Virginia Women Attorney's Association.