Articles Posted in Divorce

Virginia considers marriage an economic partnership. As such, it is in the majority of states that follow equitable distribution law for the division of marital property and debts during divorce. Under Virginia Code Section 20-107.3, courts must engage in a fair division of marital property and debts. While some couples may agree amongst themselves on the fair division of marital property, conflicts often arise and many must rely on the courts to decide on their behalf. The goal of the court is to encourage fair and equitable results. However, despite its name, equitable distribution does not necessarily mean 50/50 distribution. Instead, it is a way for the court to divide assets in a manner that considers each party’s earning capability, separate assets, and role in the marriage.

Under the lens of Virginia divorce law, courts classify property as either marital property or separate property. The law defines marital property as jointly-owned property and all other property obtained from marriage to separation. In contrast, separate property refers to property that belonged to only one party before their marriage. Property that was once separate property but then used for the benefit of the marriage may turn into marital property.

Common examples of marital property are the couple’s home titled in both spouse’s names or a retirement account accumulated during the marriage, even if the account only lists one spouse’s name. Further martial property may include vehicles, electronics, and business interests. Separate property includes items like cars given to one spouse, an inheritance, and separately maintained cash gifts from a third party. It is important to note that gifts from one spouse to the other are marital property.

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A Virginia appellate court recently addressed a wife’s appeal from a final divorce decree. Amongst several issues, the wife argued that the circuit court erred by denying her continuance request. According to the record, the couple married in 2008 and began separation and divorce proceedings in 2018. Following several hearings, the parties entered into a separation agreement in 2020. The separation agreement was limited to equitable distribution matters, and the remaining issues were slated for a hearing in March 2020. However, because of the pandemic, the hearing was moved to August 2020.

On the day of the hearing, the wife contacted the clerk explaining that she had a fever and possible COVID-19 contact. The court failed to provide the woman guidance, and the woman did not appear at the hearing. As such, the court decided the case solely on the husband’s evidence. The wife objected to the final decree; however, the court denied the motion.

The wife argues that the lower court abused its discretion by failing to grant her a continuance or provide alternative arrangements to participate in the hearing. Virginia’s rule governing continuance provides that a court abuses its discretion “when a relevant factor that should have been given significant weight is not considered” and when the court considers an irrelevant factor, and when all proper factors are considered, but the court “commits a clear error of judgment.”

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The state appeals court recently issued a decision in a divorce case involving a motion to amend spousal support. The parties’ divorce decree was entered in July 2019, and neither party appealed. During this time, the husband was president and sole employee of a home building company. The wife filed a petition arguing that the husband did not pay spousal support on time; in response, the husband moved to reduce spousal support. During proceedings, the husband conceded that his business received COVID-19 relief, and he failed to show evidence that he was pursuing additional work. However, he argued that his failure to pay was not due to willfulness but rather his inability to pay. Amongst other findings, the court found in favor of the wife and ordered the husband to pay support to cover the arrearage. The husband appealed several findings, including the trial court’s failure to reduce spousal support.

Under Virginia law, upon petition, a court may increase, decrease, or terminate spousal support and maintenance. The party moving for the change must establish a “material change in circumstances” that “warrants a modification of support.” The material change must involve the dependent spouse’s financial needs or the ability of the supporting spouse to pay. Trial courts maintain broad discretion in determining whether a material change warrants a modification. Further, appellate courts must afford the trial court with deference when reviewing these matters.

In this case, the court determined that while there was a material change in circumstances, the husband failed to prove that the change warranted a reduction. Although the husband showed that COVID-19 brought slowdowns in the home building industry, he failed to disclose his finances fully. Further, the husband failed to meet his burden to seek other employment because he did not seek or apply for any other job. In this case, it was not the wife’s burden to establish a need for support, and instead, it was the husband’s burden to show that the wife’s need for support changed. Ultimately, the appellate court found that the trial court evaluated the parties’ circumstances and did not err in their decision to deny the husband’s motion to reduce spousal support.

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