Virginia Divorce Cases

Equitable Distribution of Marital Property

In addition to classifying property as marital or separate, the court must identify and value the property of the parties before making a monetary award.

Rein v Rein, 1994 Va. App. LEXIS 699.

The Virginia equitable distribution statute contains no presumption favoring equal division of marital property.

Gamble v. Gamble, 14 Va.App 558, 421 S.E.2d 635 (1992)

Classification

An inherited farm was properly classified as hybrid property (part marital – part separate) where the wife obtained title to it be paying the father’s estate a sum that was borrowed using the farm as security, the lender required that the farm be titled to husband and wife and husband failed to show that wife intended to make a gift. The farm was marital to the extent of the amount of the loan and the remaining value was wife’s separate property.

Dotson v Dotson, 2004 Va.App. LEXIS 204.

Property acquired by one spouse after the parties’ last separation with wages earned after the last separation is separate property; the marriage is deemed to have ended, for purposes of classifying property, on the date of the last separation, in the absence of proof to the contrary.

Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463 (1993),
1993 Va. App LEXIS 513.

The mere fact that separate funds are conveyed into a joint account does not prevent the owner from tracing those funds to another source. The husband did not contribute significant efforts toward the increase in value of the wife’s separate property by helping her to purchase the property at a more favorable price.

Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398 (2002).

Valuation

The trial court properly valued the wife’s orthodontic practice as of the date of the hearing. The wife failed to show that the increase in value of the practice after separation was due to her post-separation efforts.

Ledwith v Ledwith, 2004 Va.App. LEXIS 488.

The husband and wife married. Less than a year later, they purchased a residence. It was undisputed that the husband invested a specific sum of his separate property in the acquisition and maintenance of the home. The residence had a specific purchase price and the parties borrowed most of that amount to make the purchase. The residence significantly increased in value during the marriage. The parties then divorced. The trial court had to determine how to equitably distribute the parties’ property. Regarding the residence, the husband advocated applying the Brandenburg formula, which would have given the husband a large amount of equity in the property and the wife a small amount of equity. The trial court found that application of the Brandenburg formula would be harsh and inequitable. As a result, it concluded that the balance of the equity in the home, after considering the husband’s contribution from separate property, should be divided equally. On appeal, the appellate court found no abuse of discretion in the trial court’s decision not to apply the Brandenburg formula and concluded that the wife was not entitled to an award of attorney fees and costs.

Keeling v Keeling, 47 Va. App. 484, 624 S.E.2d 687, 2006 Va. App. LEXIS 30.

Retirement Plans or Accounts

The appeals court reversed the trial court’s award of a marital share of Husband’s retirement account to wife based on a valuation date other than the date of separation.

Webb v. Webb, 2004 Va. App. LEXIS 197.

The appellate court held that the trial court erred in limiting the wife’s marital share of the CSRS pension benefits to a fixed amount as if husband had retired on the date of separation. The court explained that Virginia courts have recognized two methods for valuing and dividing a defined benefit plan. Under the “immediate offset approach” the trial court determines the present value of the marital share of the benefits and considers this value in making the monetary award. Id. Under the “deferred distribution approach,” the trial court awards “a percentage of the marital share of the pension, in which case payment is to be made only as retirement benefits are paid. If a trial court orders deferred distribution of the marital share of the pension, it need not determine the pension’s present value. Furthermore, the court have previously rejected limitation of a pension award, payable in the future, to a ‘present value calculation’ because it denied the benefit of ‘future earnings and adjustments that are attributable to the … deferred share’ and its ‘future appreciation. It is only fair that both parties share in the increased value of the pension. There can be no justification for husband receiving the increase in value of his … share as well as any increase in wife’s share. The portion of the trial court’s judgment awarding an IRA annuity to the wife and not awarding the wife the survivor annuity benefit under the husband’s CSRS pension plan was affirmed.

McGinniss v McGinniss, 49 Va. App. 180, 638 S.E.2d 697,
2006 Va. App. LEXIS 596.

Agreements

The parties’ property settlement agreement provided that the wife would receive a pickup truck value at $11,000. Each party waived spousal support. Under the agreement, the husband was given all of the interest in the marital residence and in the business that the two parties had developed during the course of their marriage. The value of the business and home parcel was around $200,000. While the commissioner found that the property settlement agreement was unconscionable, in that a gross disparity existed between the value of the property each party would receive, the trial court sustained the husband’s objections and found that the agreement was not unconscionable. On appeal, the court found that, while the agreement gave the husband about 94 percent of the marital assets, there was no evidence of overreaching or oppressive behavior by the husband. The husband brought the agreement to the wife the night before it was executed and advised the wife that she could consult an attorney. Even if the wife proved that there was a gross disparity in the division of assets, she failed to prove any overreaching by the husband; thus, the agreement was not unconscionable under 20-151.

Galloway v. Galloway, 47 Va. App. 83, 622 S.E.2d 267,
2005 Va. App. LEXIS 483.

Dissipation of Assets

The husband argued that the trial court erred in assigning a valuation date other than the date of the equitable distribution hearing and in dividing certain marital accounts. The appellate court found no error, noting that the wife filed a timely motion to use the date of separation as an alternative valuation date, claiming that, since the parties’ separation, the husband wasted marital funds. In addition, the husband failed to present evidence to prove that the funds were used for living expenses or some other proper marital purpose.

McBride v. McBride, 2004 Va. App. LEXIS 640.

Source of Funds

Marital and nonmarital components of hybrid property may be apportioned in the same percentages as their respective contributions to the total equity in the property. The value of improvements, not their cost, should be considered when determining contributions.

Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998).

Gift

The trial court was not plainly wrong in concluding that the husband intended to make a gift when he placed assets in joint title with the wife, and the decision to make a relatively equal distribution of the gifted property did not constitute an abuse of discretion despite the short duration of the marriage.

Theismann v. Theismann, 22 Va. App. 557, 471 S.E.2d 809 (1996).

Factors in Award

When fault is relevant in arriving at an award, the trial judge must consider it objectively and consider how, if at all, it quantitatively affected the marital estate or the well-being of the family.

O’Loughlin v. O’Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995).

Postdecree Proceedings

Ex parte divorce decree did not foreclose the wife from later seeking equitable distribution of her property right in the husband’s military pension.

Toomey v. Toomey, 19 Va. App. 756, 454 S.E.2d 735 (1995),
1995 LEXIS 189.

Alimony

The income received by the husband from his share of the distribution of his pension could be considered as a resource when determining the amount of his spousal support obligation, and the wife’s income from her share of the pension should be considered as a resource of hers in determining her need for support.

Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 702 (1997).

Since a divorcing couple’s written stipulation agreement did not set forth the duration of the husband’s spousal support obligation, Va. Code Ann. 20-109(D) governed. Therefore, the husband’s obligation was not subject to termination unless either party died or the wife remarried.

Courtney v. Courtney, 2006 Va. App. LEXIS 267.

The wife filed a bill of complaint for a no-fault divorce and requested temporary and permanent spousal support. Without leave of court, the wife filed an amended bill of complaint requesting, inter alia, temporary and permanent spousal support. She did not file an answer to the husband’s cross-bill for a divorce and alimony. The trial court dismissed the wife’s bill of complaint and granted a final divorce to the husband based solely on his cross-bill. The Court found that when the wife filed the bill of complaint, she had not been separated from the husband “without interruption for one year” as required by Va. Code Ann. 20-91(9)(a). The wife’s amended complaint was also properly dismissed because she did not seek leave of court before amending her pleading pursuant to Va. Sup. Ct. R. 1:8. Consequently, the wife’s requests for spousal support abated with the dismissal of the pleadings. The wife’s omnibus motion did not contain an independent request for spousal support. The Supreme Court of Virginia held that without a valid pleading for spousal support, the trial court erred in granting a reservation of spousal support to the wife under Va. Code Ann. 20-107.1(D).

Harrell v Harell, 272 Va. 652, 636 S.E.2d 391, 2006 Va. LEXIS 105.

Custody

Order granting mother’s motion for modification of child custody and visitation based on mother’s relocation to Pennsylvania was proper because trial court considered Va. Code Ann. 20-124.3 factors in finding that relocation was in the best interests of the child. The trial court also expanded the father’s visitation schedule.

Masters v. Sutton, 2007 Va. App. LEXIS 136.

The trial court did not err in finding that it was in the best interests of the child to deny the grandparents’ petition for visitation. The trial court specifically discussed the experts’ testimony, noting, inter alia, that there existed evidence that, after visitation, there was some exacerbation in the child’s problem behavior and that it was in the child’s best interest to allow the mother the right to make the decision about how things were handled with the child.  A therapist’s testimony that would have been adverse to the mother’s position in a grandparent visitation case was properly excluded under Va. Code Ann.  20-124.3:1.

Rice v. Rice, 49 Va. App. 192; 638 S.E.2d 702; 2006 Va. App. LEXIS 588.