A permanent and final divorce is called a “divorce a vinculo matrimonii” (meaning from the bonds of matrimony) in Virginia. All divorces require proof of grounds. If you are filing for divorce, you have to have grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Virginia you can be living separate and apart under the same roof, but this is difficult to prove, and requires planning.
The grounds for a final divorce in Virginia are as follows:
1. Adultery
2. Felony conviction – at least one year imprisonment.
3. Cruelty – one year after the act of cruelty.
4. Desertion continuing for one year.
5. Voluntary separation – for one year without interruption or marital relations and no reasonable prospect of reconciliation. If there are no minor children and the spouses have a written separation agreement, the require period is six months. In Virginia you can be living separate and apart under the same roof during the required separation period, but this requires careful planning and can be difficult to prove.
If the parties agree to be divorced, you generally need a written Marital Settlement Agreement that makes adequate and sufficient provisions in writing for the custody and support of any minor children of the marriage and makes a fair and equitable division of your property. If there are no minor children, and a written Separation Agreement, you can file for divorce after six month’s separation.
If there are minor children, or you and your spouse cannot reach an agreement, you have to be separated for at least one year. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, the Agreement need only say that differences have arisen that prevent you from living together as husband and wife, you have or will separate, there is no hope of reconciliation and you intend to end the marriage.
After your divorce you should review your Will and all beneficiary designations to ensure that you do not unintentionally include a gift to your former spouse. Although we strongly recommend against relying on statutes to correct your estate plan despite your own inaction, there are statutes that provide that the judgment of divorce eliminates prior bequests or certain beneficiary designations to the former spouse. See Va. Code Sec. 20-111, 20-111.1, 64.1-59; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355. The effect of these statutes on the treatment of a now former spouse in an estate plan is uncertain and incomplete and may be frustrated by federal law spousal protections. The savings statutes are no substitute for a careful review of estate planning documents and beneficiary designations and corrective action based on the divorce settlement or judgment.
You can improve on the intestate estate outcome by unilateral action. You can make a Will or a new Will; or revoke a Will that leaves everything to your now estranged spouse. We encourage clients to consider taking these actions early on in the process.
However you cannot freely disinherit your spouse. In each local jurisdiction the surviving spouse can renounce the gift, if any, to the spouse in the Will and elect to take a statutory share of the estate. The surviving spouse is entitled to claim an elective share as follows:
Maryland – an allowance of $5,000 and one-half of the net probate estate if there are no surviving issue of the decedent and one-third if there are surviving issue. Md. Code, Estates and Trusts Article, Sec. 3-201 and 3-203.
Virginia – one-half of the augmented estate if there are no surviving issue of the decedent and one-third of the augmented estate if there are surviving issue. Va. Code Sec. 64.1-16.1.
District of Columbia – the surviving spouse who renounces the gift under the Will is entitled to the amount he or she would take if the decedent did not make a Will. D.C. Code Sec. 19-113.
If you die intestate (without a valid Will) your spouse is entitled to the following percentages of your net probate estate:
Maryland – the surviving spouse takes entire net probate estate unless there are surviving decedents or surviving parents of the decedent;
the surviving spouse takes $15,000 plus one-half of the net probate estate if the decedent is survived by decedents who are not minor children, or by parents of the decedent; and
the surviving spouse takes one-half of the net probate estate if the decedent is survived by his or her minor children.
See MD Code, Estates and Trust Article, Sec. 3-102.
Virginia – surviving spouse takes entire net probate estate unless there are surviving descendants of the decedent who are not descendants of the surviving spouse, in that event the surviving spouse takes one-third of the net probate estate;
the surviving spouse also has a claim to one-half of the augmented estate if the decedent is not survived by descendants and one-third if the decedent is survived by descendants,
See Va. Code Sec. 64.1-1.
District of Columbia – D.C. law provides that the surviving spouse or domestic partner, and minor children, are entitled to a reasonable allowance from the probate estate for maintenance during estate administration. D.C. Code section 19-101.04
The surviving spouse or domestic partner takes the entire net probate estate if the decedent is not survived by descendants or parents;
The surviving spouse or domestic partner takes two-thirds of the net probate estate if the decedent is survived only by descendants who are issue of the decedent and the surviving spouse;
The surviving spouse or domestic partner takes three-fourths of the net probate estate if the decedent is not survived by descendants but is survived by a parent;
The surviving spouse or domestic partner takes one-half of the net probate estate if the decedent is survived only by descendants who are issue of the decedent and the surviving spouse, and the surviving spouse has other issue; and
The surviving spouse or domestic partner takes one-half of the net probate estate if the decedent is survived by descendants one or more of who are not issue of the surviving spouse. D.C. Code section 19-302.
Also in each local jurisdiction there is a statutory preference for the surviving spouse to be the personal representative or executor of the estate.
Generally spousal claims apply to the probate estate which only includes assets that the decedent owned at death and which did not pass by operation of law or beneficiary designation or other contract provision. Virginia expands the spousal protections to the “augmented” estate, the calculation of which includes certain non-probate assets and prior gifts. A federal law known by the acronym ERISA protects spouses’ rights to certain retirement plans and accounts. Often the vast majority of a decedent’s property passes outside of probate.
For example, many spouses own the marital home and sometime other real property in a form of ownership called tenants by the entirety (“T by E”). One of the characteristics of this tenancy is survivorship – if one tenant dies the other succeeds to ownership of the entire property by operation of law. A Will cannot change this result.
Often spouses hold bank accounts as joint tenants with right of survivorship (“JTWROS”) or name each other as pay on death (“POD”) beneficiaries of their financial accounts. These arrangements can be changed by transferring the funds or changing the beneficiary.
You can freely change the beneficiary designation on your IRA’s. However 401(k) accounts are subject to ERISA spousal protections. You cannot name a beneficiary other than your spouse without your spouse’s consent and if you name no beneficiary your spouse takes by default. A spouse’s ERISA rights in 401(k) accounts, 403(b) accounts, pensions, etc. can be eliminated only by a final judgment of divorce, or completion and delivery of a beneficiary designation with spousal consent to the plan administrator.
The marital contract that spouses enter into at the time of the marriage includes many provisions that I often find are a surprise to some people. One area where marriage makes a big difference is how property passes at death.
If you are married at the time of your death your spouse has important rights to your estate, whether or not you made a Will. And the law does not consider you unmarried just because you are separated or there is a divorce case pending. Only the final judgment of divorce changes your status for decedent estate purposes. A limited divorce does not terminate spousal estate rights although Virginia, but not Maryland and the District of Columbia, bars the estate claims of surviving spouses who abandoned the decedent. See Va. Code Sec. 64.1-16.3.
Various alimony guidelines have been developed around the country. The American Academy of Matrimonial Lawyers (AAML) has developed a guideline that uses incomes and length of marriage to calculate the starting point for determining alimony. The Kaufman guidelines, developed by a Michigan divorce attorney and initially published locally by the Montgomery County Commission for Women, use income, length of marriage, education, income potential and child custody to generate a recommended amount and duration of alimony. Last year, the Maryland Court of Appeals approved a trial judge’s reference to the AAML alimony guidelines for informational purposes in Boemio v Boemio, 414 Md. 118, 994 A.2d 911 (2010) .
In Virginia, the Fairfax County Circuit Court has by rule adopted guidelines for pendente lite alimony determinations. It is commonly understood that those guidelines have some influence on final alimony settlements and determinations.
There may someday be statutory alimony guidelines in each state the way there are now statutory child support guidelines but it is not likely to be anytime soon. The driving force behind the universal adoption of statutory child support guidelines was the federal interest in making child support more predictable and more collectible across state lines. It does not appear there is any similar overriding federal concern with alimony. So divorcing spouses and divorce lawyers will continue to settle alimony cases based on all the circumstances with non-statutory guidelines playing an increasingly important role in negotiations. Those cases that do not settle will be tried before judges who may or may not consider the various guidelines in deciding the cases.
What if one divorcing spouse works for a private company and has a pension and will be eligible for social security and the other is a government employee? The Court will divide the marital portion of the private pension and the government pension but cannot divide the social security. Should the Court take account of that difference in expected government benefits in dividing the pension? Not in Maryland. See Pleasant v Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993). In that case the Maryland Court of Special Appeals held federal law precluded treating social security benefits as marital property and affirmed the trial court’s holding that the marital portion of husband’s pension, funded by payroll deduction during the marriage, would be equally divided when received and the wife’s social security benefit, funded by payroll deduction during the marriage, would not be divided. The court made no other adjustment to the equitable distribution of marital property. Is that unfair? Of course. The law of Virginia is the same on this point. See e.g. Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County)
Here is a comparison applying the child support guideline of each local jurisdiction to a typical case: two children, sole custody, $0 health insurance and $0 child care costs and combined monthly income of $10,000, non-custodial parent’s income is $7,500 and custodial parent’s income is $2,500:
District
total support $25,174/12 = $2,098
custodial % of income .75
recommended support order $1,573
Maryland
total support $1,811
custodial % of income .75
recommended support order $1,358
Virginia
total support – $1,577
custodial % of income .75
recommended support order $1,183
Again, applying the child support guidelines to a case with the same facts except combined monthly income of $15,000, non-custodial parent’s income is $11,250 and custodial parent’s income is $3,750
District of Columbia:
total support $35,152/12 = $2,929
custodial % of income .75
recommended support order $2,197
Maryland:
total support $2,847
custodial % of income .75
recommended support order $2,135
Virginia
total support –1,597+.051 x $5,000 = $1,832 1/
custodial % of income .75
recommended support order $1,374
As you can see, at higher incomes, child support is much lower in Virginia than in Maryland or the District.
1/ Total support for two children increases $5.10 for each $100 dollars of combined income between $10,000 and $20,000.
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Thyden Gross and Callahan divorce attorneys are here to help you. Our philosophy is that a constructive approach to cases, and a respectful approach to clients, lawyers, opposing spouses in divorce cases, best serves our clients.
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