Special Joint Courts of Justice Subcommittees

September 3, 1997, Richmond

The special ad hoc subcommittee of the House and Senate Courts of Justice Committees held its second meeting to receive a staff report on the feasibility of conducting an economic impact analysis on the effects on of no-fault divorce, review a proposal by the Family Law Section of the Virginia State Bar to allow courts to award alimony for a limited period of time ("rehabilitative alimony") and revisit the issue of alternative means for encouraging participation in pro bono activities by lawyers.

No-Fault Divorce

At the subcommittee's last meeting, staff was asked to examine the means by which available data on divorces could be analyzed to determine the effects that the proliferation of no-fault divorce has had on the economic well-being of the parties and their children. Staff reported back that there are currently no publicly available data sources from which the required information on no-fault divorces could be isolated and reviewed. Staff concluded that in order to perform such an analysis, a statistically valid sample would have to be obtained from a hand search of available court records and that interviews and surveys of the parties to those divorces would be required. Such a project would be labor intensive and expensive and would require at least one year to complete.

The subcommittee unanimously agreed that such a project could not be undertaken by legislative staff. The chief patron of the resolution that originally requested creation of the study agreed and suggested that he would pursue the matter further to try to determine if grant money would be available to fund such a study by a public or private university in the Commonwealth.

"Rehabilitative Alimony"

House Bill 2131 was introduced during the 1997 Session, following a two-year study by the Virginia State Bar conducted on request of the General Assembly. At its last meeting, the subcommittee asked for a presentation on the rehabilitative alimony bill, detailing the highlights and explaining the workings of the State Bar study group. The term "rehabilitative alimony" is a colloquial reference to the authority of a court to award periodic payments of spousal support for a specified duration. Currently, when a court awards periodic payments of support, the payments continue until the payee dies or remarries, or the court may terminate the payments if the payee cohabits in a relationship analogous to a marriage. The bill would apply prospectively only, to initial actions filed on or after the effective date, or to actions to modify an award entered in a case filed initially on or after that date.

In addition to authorizing an award of support for a fixed term, the bill also (i) makes the granting of a reservation of right to support permissive with the court rather than required if requested by a party and, in order to establish some finality, establishes a presumptive limit on the duration of the reservation; (ii) modernizes and expands the factors to be considered by the court in determining support issues; (iii) establishes rebuttable presumptions, based upon the duration of the marriage, to be used by the courts in determining whether to award permanent or fixed-term support; (iv) requires that written findings be made detailing the basis for determining the type and amount of support ordered; and (v) specifies that awards made for a defined duration may be modified only during the term of the award and then only if the court finds that a material change of circumstances has occurred that could not reasonably have been anticipated at the time the award was entered or that an anticipated event upon which the award was based has not occurred through no fault of the party seeking modification.

Representatives of the State Bar study group noted that Virginia and Louisiana are the only two states that do not currently allow for an award of rehabilitative alimony. The subcommittee had questions about the precise meaning of some of the language used in the bill, but found the examples included in the State Bar's report ( House Document No. 55 ) illuminating. All of the statewide family law organizations participated in the State Bar study and support the consensus represented by the bill as introduced. Representatives of the National Organization of Women and the Virginia League of Women Voters noted that they had not been included in the study group. Both representatives expressed opposition to the bill on the grounds that the need for and effects of the changes had not been empirically studied and that the rebuttable presumptions were not family-friendly and could in fact encourage parties to proceed with a divorce in order to obtain the benefit of the presumptions at a particular time.

Following the review and discussion of the bill, the subcommittee recommended the bill on a 5-to-1 vote, with one member abstaining. A draft of the bill will be prepared for introduction in the 1998 session.

Pro Bono Activities

After its last meeting, the subcommittee learned that two special committees of the Virginia State Bar had been looking at issues closely related to the work of the subcommittee. The Access to Justice Committee of the State Bar includes representatives of the Poverty Law Center, the Legal Services Corporation, the Virginia Trial Lawyers Association and the Virginia Women Attorneys Association. That committee is looking at alternative plans for facilitating and increasing participation in pro bono activities. Among the alternatives currently under consideration are (i) organizing planned pro bono programs by circuit, (ii) requiring out-of-state attorneys to pay a fee for the privilege of appearing in Virginia courts, with the money raised being used exclusively to fund pro bono activities, and (iii) institutionalizing a system whereby attorneys who cannot, for any reason, participate in pro bono programs would be allowed to make voluntary contributions to a special fund used to fund such programs.

The Committee to Revise the Code of Professional Responsibility has drafted recommended changes to current Canon 2, expanding on the American Bar Association's Model Rules of Professional Conduct. The proposed changes would continue to make the duty to provide pro bono services a goal rather than a requirement, but expand upon the ways in which the goal can be met. For example, the proposed rule would allow for financial support of pro bono projects in lieu of a service requirement. The proposal will be presented to the State Bar for approval in October, but must still be approved by the Supreme Court.

The subcommittee was pleased to learn of these activities and voted to send a letter to the State Bar and recommend introduction of a resolution commending the Bar for its activities to date and encouraging further efforts to ensure that the burden of providing legal representation to all those who cannot pay for it is borne equitably by all who enjoy the privilege of practicing law.

Concern remains however, over the financial status of the Legal Services Corporation (LSC) of Virginia. The subcommittee noted that in recent years LSC has been forced to focus on plugging holes in its budget rather than expanding legal services for the poor. Although private attorney involvement in LSC projects has increased, so too has the demand, much of it in the area of domestic relations law. Following a 30 percent cut in federal funding two years ago, LSC is facing the possibility of an additional 50 percent cut in federal funding this year. Such a reduction would seriously undermine LSC's ability to provide services at the current reduced level. Although the subcommittee will not meet again, the members expressed concern over this situation and a desire to be kept informed on LSC's budget situation.

The Honorable James F. Almand, Chairman
Legislative Services contact: Mary P. Devine