Virginia Family Law for Non-Family Law Lawyers

By | April 29, 2015

fairfax family law

WHAT ALL VIRGINIA ATTORNEYS SHOULD KNOW ABOUT

DOMESTIC RELATIONS LAW
by
Jason A. Weis & Grant T. Moher
Curran Moher Weis, PC
10300 Eaton Place, Suite 520
Fairfax, Virginia 22030

As of January 1, 2013

I. INTRODUCTION

a. What does domestic relations encompass?

Divorce; annulment; equitable distribution of property {division of property); spousal support (alimony); child custody, visitation, and support; paternity; pre- and post-marital agreements; division of retirement assets, adoption, tax consequences of separation and divorce; military issues and divorce; some issues affecting same-sex and unmarried couples; protective orders in cases of family abuse or stalking.

b. Common Law Marriage.

There is no such thing as common law marriage in Virginia, and the national trend has been to disfavor these. Currently, only a small handful of states recognize common law marriage, or any variation thereof.

II. DIVORCE

a. Residency requirement. One party must be a bona fide resident and domiciliary of Virginia for at least six months before the commencement of suit for divorce. Va. Code § 20-97.

b. Types of Divorce. One can receive either a divorce a vinculo matrimonii, which is your “standard” divorce. One can also opt for a divorce a mensa et thoro, which is basically the same as legal separation pending a divorce a vinculo. Virtually no one gets a divorce a mensa and filing for one is typically only used as a mechanism to institute a divorce filing where there are grounds for divorce, but the parties have not been separated for the requisite amount of time.

c. Grounds. Divorces may be granted on either a fault or no-fault basis, as follows:

i. Adultery/Sodomy/Buggery. Sexual intercourse or other sexual acts with any third party. See Va. Code § 18.2-365, 18.2-361. One may counter a claim of adultery with any of the following, if they apply: 1) condonation (forgiveness); 2) collusion; 3) recrimination (both guilty of marital fault); and 4) statute of limitations (5 years from act).

ii. Conviction of a Felony. A divorce may be granted if either spouse has been convicted of a felony during the marriage and sentenced to confinement for more than one year.

iii. Cruelty. Cruelty typically involves physical acts only, however extreme mental cruelty may also be actionable.

iv. Desertion. If any party willfully deserts or abandons the other party (basically moves out without consent), divorce may be granted based on desertion.

v. Living Separate and Apart. Divorce may be granted if 1) the parties have lived separate and apart for more than one year, or 2) if the parties have lived separate and apart for six months, they have no minor children, and they have entered into a separation agreement. Separation in Virginia most often occurs when the parties are living in separate residences, not just in separate bedrooms, or when they cease engaging in marital relations. It is possible to live separate and apart in the same house, but very difficult.

vi. Pleading and Practice. One can only file for a divorce a vinculo before the one year separation requirement by filing based on adultery. However, for a felony conviction, cruelty, and desertion, one may file immediately for a divorce a mensa, which can later be amended to request a divorce a vinculo, after the expiration of the statutory period. Typically once a divorce has been filed, the court will set the final hearing for one year after the alleged date of separation, so that if fault grounds cannot be proven, a divorce can still be granted on the basis of separate-and-apart.

III. ANNULMENT

a. Grounds. Annulments in Virginia are rare, but may be granted to either party based on the following:

i. The marriage was not properly licensed and solemnized according to the Virginia Code.

ii. The marriage was prohibited under Va. Code § 20-38.1 (i.e. one party was married before an earlier marriage was dissolved, a marriage between certain related parties).

iii. Either party lacked the capacity to consent to marriage because of mental incapacity.

iv. Fraud or duress.

The aggrieved party only may seek annulment based on the following:

i. Either was under age 18 at the time of the marriage and did not comply with the consent requirements of Va. Code § 20-49.

ii. The other party suffered from “nature or incurable impotency of the body,” when the marriage contract was entered into.

iii. At the time of the marriage, the wife was pregnant by another man or husband fathered a child born to another woman within 10 months after the marriage.

IV. PRE-MARITAL AGREEMENTS

a. General. Pre-Marital Agreements (also called Prenuptial Agreements) are Virginia contracts, and they are enforceable without consideration, provided they are executed according to the standards of Va. Code § 20-147 et seq. and are otherwise not assailable under contract law.

b. Requirements. Per § 20-147, et seq. Pre-Marital Agreements must be

i. In writing.

ii. Signed by both parties.

iii. Executed voluntarily.

iv. Must have a full disclosure of both parties’ assets or a waiver of full disclosure.

c. Scope. Per § 20-150, pre-marital agreements can address:

i. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

ii. The right to buy, sell, use, transfer, manage, etc., any type of property;

iii. The disposition of property upon separation, marital dissolution, death, or any other event;

iv. Spousal support;

v. The making of a will, trust, or other arrangement to carry out the provisions of the agreement

vi. The ownership rights in and disposition of the death benefit from a life insurance policy;

vii. The choice of law governing the agreement;

viii. Any other matter, including the parties’ personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

 

V. PROPERTY SETTLEMENT AGREEMENTS

a. General. If a divorce case resolves before a final hearing, it is typically done with an agreement referred to as a Property Settlement Agreement, or “PSA.” The requirement for validity of these agreements is the same as for Pre-Marital Agreements. They may resolve all issues between parties or only some.

b. Scope. A PSA can resolve all outstanding issues between parties, similar to the scope of a Pre-Marital Agreement, but also including child custody, visitation, and support. Although courts have the ability to override parties if they think an agreement or any portion thereof is contrary to the best interests of a child, in practice this rarely happens.

c. Enforceability. PSAs are extremely difficult to overturn, even in situations where their practical effect is massively unfair. Where they are overturned, typically it will be because of oppressive conduct or unconscionability.

d. Incorporation within divorce decree. Typically, PSAs will be incorporated but not merged into the Final Decree of Divorce when granted. This allows the PSA to be enforceable by way of a contempt motion or rule to show cause, rather than having to file a separate breach of contract action.

e. Marital Agreements. Similar to Pre-Marital Agreements and Property Settlement Agreements, Marital Agreements are agreements entered into by married couples who want to define their rights in the marriage, but continue to live together as husband and wife. They are governed by the same statutes applicable to Pre-Marital and Property Settlement Agreements.

 

VI. EQUITABLE DISTRIBUTION OF PROPERTY

a. General. § 20-107.3 gives the Court jurisdiction to divide or transfer jointly owned marital property, make monetary awards, and apportion marital debt. The Court does not have jurisdiction to transfer property titled solely in one party’s name, except in limited circumstances such as a pension, profit sharing plan, or other retirement asset.

b. Classification of Property. Property can be classified as either marital, separate, or part-marital and part-separate (commonly referred to as “hybrid property”).

i. Marital Property. Marital property is all property titled in the names of both parties and all property acquired by each party during the marriage (regardless of who paid for it) that is not separate property;

ii. Separate Property. Separate property is all property owned by a party before the marriage; all property acquired during the marriage by gift, inheritance during the marriage from anyone except the other party; and all property acquired during the marriage in exchange for or from the proceeds of sale of separate property.

Income received from separate property is considered separate if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts have contributed to the increases in value.

iii. Hybrid Property. Hybrid property is property that has both marital and separate component. Examples of this include real property purchased during the marriage using some of a party’s separate property or a 401(k) account owned prior to the marriage that contains both pre-marital and post-marital additions.

c. Calculation of Marital and Separate Interest in Hybrid Property. Virginia does not have a set formula or method for calculating the parties’ interests in hybrid property that has appreciated or depreciated. The method most commonly used is the “Brandenburg” method, which looks at the total contributions made to the asset, or which reduced the loan encumbering the asset, both marital and separate, and apportions the equity in the asset in accordance with those contributions. Although Brandenburg has been accepted by the Court of Appeals, it is not the only method, nor is it the most equitable in many situations.

The Keeling method has also been approved by the Court of Appeals. It awards a party who has made a down payment for the purchase of real estate that has appreciated in value a percentage increase on their down payment equal to the appreciation in value of the property.

The reasonable rate of return method has also been used in at least one Circuit Court case. It involves giving a party making a separate contribution to a piece of marital property their separate investment back, plus an amount designed to give them some rate of return on that investment.

d. Valuation of Property.

i. General. The standard of valuation in Virginia is the “intrinsic” value of the property. See Howell v. Howell, 31 Va. App. 332 (2000). Often this will be the same as the property’s fair market value, but sometimes it will not. For example, in the case of a business that generates significant revenue, but has either little or no fair market value because sale would be impractical or would not yield a fair price, intrinsic value may be far different than fair market value.

ii. Valuation date. In general, property is valued as close to the date of the final divorce hearing as possible.

e. Division of marital property. The court is not required to divide marital property evenly, and there is no presumption in Virginia that a 50/50 division should be made. In practice, however, judges generally start with the notion that marital property should be divided evenly, and generally end up there as well. However, when deciding how to divide marital property, the Court must consider the factors set forth in § 20-107.3.

f. Retirement Assets and Deferred Compensation. Pursuant to section 20-107.3, the Court has the authority to award a spouse an interest in the marital share of a party’s retirement, pension, profit sharing plan, deferred compensation plan and similar assets. This is true whether the plans are vested or unvested and whether they are defined contribution accounts, such as 401(k) plans, or defined benefits, such as traditional pensions which pay a monthly amount until death.

i. What may be awarded. Benefits to a spouse may be paid directly from the entity holding the benefits, such as the retirement plan administrator. Such benefits may only be directed by the Court to be paid to the spouse as they are payable to the party who holds the asset. Any payment ordered by the Court may not exceed 50% of the marital share of the benefits actually received by the spouse who holds the asset.

ii. ERISA plans. Most employer-sponsored retirement plans are covered by ERISA, the “Employee Retirement Income Security Act.” ERISA in general prohibits the transferring of pension rights to another person, however there is an exception in that benefits may be transferred to a former spouse in the event of divorce by way of a Qualified Domestic Relations Order, or QDRO.

iii. Military pensions. Military pensions are not covered by ERISA. They are divided by means of a Military Qualifying Court Order. If one wishes to require the military member to be required to elect his/her former spouse as their survivor beneficiary, they must send a “deemed election” letter to the Defense Finance and Accounting Service (“DFAS”) within one year after entry of the Final Decree of Divorce.

iv. FERS and CSRS Government Pensions. FERS and CSRS government pensions are not covered by ERISA. They may be divided by means of a Court Order Acceptable for Processing, which should be prepared in accordance with federal government regulations applicable to same.

v. Thrift Savings Plans. Government thrift savings plans are not covered by ERISA. They may be divided by means of a Retirement Benefits Court Order (“RBCO”) prepared in accordance with the appropriate federal guidelines.

vi. Stock Options. Stock options are deferred compensation subject to division under § 20-107.3. Options that are vested during the marriage and before the date of separation are marital. Options that vest after the date of separation may be marital, but a fact-driven inquiry must be made. When were they granted? When will they vest? Is continued employment with the company required to keep them? Why were they granted? Often the summary plan description or granting documents associated with the stock options will yield this information.

g. Personal Injury and Worker’s Compensation Awards. Personal injury and worker’s compensation awards can be marital, separate, or hybrid property. The marital share of such an award is the component received for loss of wages incurred during the marriage and the medical expenses not covered by health insurance. The burden of proof to classify the marital and separate portions of the award is on the recipient thereof. See Chretien v. Chretien, 53 Va. App. 200 (2008).

 

VII. SPOUSAL SUPPORT

a. General. § 20-107.1 authorizes the court to award support to any spouse, and § 20-103 authorizes the court to award pendente lite spousal support in anticipation of a final hearing. The Court may award periodic support, lump sum support, or both. The Court may award support for a defined or permanent duration.

b. Pleading and practice. Spousal support may be requested in a Complaint for Divorce. It may also be requested in a separate maintenance action, which is a common law claim that spouses are living apart and one requires support. Such a claim is commonly filed where parties are living separately but grounds for divorce do not yet exist. One may also file a Petition for spousal support in the Juvenile and Domestic Relations District Court as well.

c. Factors for determining. Section 20-107.1 contains several factors the Court must consider to determine the amount and duration of a support award. An overarching consideration for the Court is the need of one spouse being balanced against the other spouse’s ability to pay. See Robertson v. Robertson, 215 Va. 425 (1975). Fairfax County and several other counties around the state utilize guidelines to determine spousal support for pendente lite purposes only. Several other local courts also informally use the Fairfax County guidelines to determine pendente lite support.

d. Termination. Per § 20-109, unless otherwise agreed, spousal support is terminated upon

i. The death of either spouse;

ii. The remarriage of the recipient spouse; or

iii. The presentment of clear and convincing evidence that the recipient spouse has been habitually cohabiting with another person in a relationship analogous to marriage for one year or more unless termination of support would be unconscionable.

1. If parties agree that support survives any of the above conditions, an agreement must specifically so state. A statement that “support shall not terminate for any reason” or similar language will not be sufficient. See Hardesty v. Hardesty, 40 Va. App. 663 (2003); Waugh v. Waugh, 79 Va. Cir. 120 (2009).

e. Modification. Where the court orders support, or when the parties agree that support may be modified, spousal support may be increased, decreased, or terminated upon a finding of the occurrence of a material change in circumstances, not reasonably within the contemplation of the parties when the award was made; or an event which the court had anticipated would occur during the duration of the award, but which does not in fact occur. § 20-109(B)

f. Effect of Adultery. A spouse guilty of adultery cannot be awarded permanent spousal support unless the court finds that the denial of support would constitute “manifest injustice.” § 20-107.1(B)

g. Reservation. In addition to, or in lieu of granting spousal support, the court may order a reservation of one or both spouse’s rights to seek spousal support in the future. There is a rebuttable presumption that such reservation shall continue for half the length of the marriage. § 20-107.1(C)

h. Tax implications. Spousal support is generally tax-deductible to the payor spouse and includable as income to the recipient, but may be subject to recapture rules and other issues. See IRS publication no. 504.

 

VIII. CHILD SUPPORT

a. General. Courts have the authority to order one party to pay child support to the other for the support of any minor children they have together. § 20-107.2

b. Length of award. Child support is payable until age 18, but may be extended after age 18 if the child is “(i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party receiving support. Child support then continues until the child graduates from high school or turns age 19, whichever comes first. Support can also be continued for any child over 18 who is (i) severely and permanently disabled, (ii) unable to live independently and support himself; and (iii) resides in the home of the parent seeking or receiving child support. In addition, a court can confirm an agreement by the parties to extend support beyond the statutory timeframe.

c. Guidelines. Support in Virginia is based primarily on guidelines that take into account various things, including the monthly gross incomes of both parties, health insurance costs for the minor children; and work-related child care costs of the minor children. If the non-custodial parent has over 90 days per year with the child, the number of days the non-custodial parent has with the children will be factored in; support is calculated using a shared custody guideline where the non-custodial parent has over 90 days per year with the child. The number generated by the guidelines is presumptively correct, but may be rebutted upon a showing that they would be unjust or inappropriate based on the factors set forth in § 20-108.2

d. Modification. Regardless of what the parties agree to, child support may always be modified by a court of competent jurisdiction based on a material change in circumstances occurring after the date the last order addressing child support was entered. See Crabtree v. Crabtree, 17 Va. App. 81 (1993).

e. Pleading and practice. Child support may be awarded in connection with a suit for divorce in the Circuit Court. An independent action for child support may also be brought in the Juvenile and Domestic Relations District Court by married parties before a divorce commences, or between unmarried individuals who share a child.

f. Interstate practice. The Uniform Interstate Family Support Act, or UIFSA, governs the determination of what state has jurisdiction in support cases involving interstate issues. §20-88.32 et seq.

 

IX. CHILD CUSTODY

a. General. There are two different forms of custody: legal custody and physical custody. Legal custody is generally the right to make major decisions in the child’s life, such as those relating to the child’s health, education, activities or religious upbringing. Physical custody simply refers to the place a child primarily lives (visitation).

b. What determines custody? Courts have the goal of assuring that children have frequent and continuing contact with both parents, but custody is determined by the best interests of the child. In making this determination, courts must consider the factors set forth in § 20-124.3.

c. Visitation. There is no “standard” or presumptive visitation schedule for a non-custodial parent in Northern Virginia. Visitation will depend on the best interests of the child. Perhaps the most common visitation schedule in Northern Virginia is alternating weekends, one evening each week, an equal share of holidays and two weeks during the summer.

d. Third parties. Third parties who are “persons with a legitimate interest,” such as grandparents, aunts, uncles, etc., may petition the Court for custody of a minor child. §§ 20-124.1, 20-124.2. However, to be awarded custody or visitation rights, third parties are held to a heightened standard. They must show that actual harm to the child is likely to result from their not being granted custody or visitation. See Griffin v. Griffin, 41 Va. App. 77 (2003).

e. Modification. Courts may modify custody decrees as the circumstances of the parents and the benefit of the children may require. § 20-108. The test for modification is generally set forth as: “custody should be modified if: (1) there has been a change of circumstances since the most recent custody award; and (2) a change in custody would be in the best interests of the children.” Keel v. Keel, 225 Va. 606 (1983).

f. Pleading and practice. Child Custody may be addressed in connection with a suit for divorce in the Circuit Court. An independent action for child custody and visitation may also be brought in the Juvenile and Domestic Relations District Court (JDR) by married parties before a divorce commences, or between unmarried individuals who share a child.

g. Interstate issues. Interstate custody issues are governed by the Uniform Child Custody Jurisdiction and Enforcement Act, or “UCCJEA.” Under this act, a court of the child’s home state (where the child has lived for the last six months), generally has jurisdiction to decide custody cases involving more than one state.

h. International issues. International custody cases are governed by the Hague Convention on the Civil Aspects of International Child Abduction, where the other country in question is a signatory to the Convention.

 

X. JURISDICTION

a. Circuit Court. All divorces are filed in the Circuit Court. Once a Complaint for Divorce has been filed, the Circuit Court has jurisdiction to determine all issues connected to the divorce.

b. Juvenile and Domestic Relations District Court. The Juvenile and Domestic Relations District Court has exclusive jurisdiction over custody, support, protective orders, and related issues between unmarried parties. It has concurrent jurisdiction with the Circuit Court over these issues between married couples.

c. Divestiture. If a case is pending in the Juvenile Court between married parties and one party files a Complaint for Divorce and sets a hearing on the issues of custody, guardianship, visitation, child support, or spousal support within 21 days of the filing of the Complaint, the Juvenile Court is divested of jurisdiction to enter any further orders on the matters that have been raised. § 16.1-244. However, the Juvenile Court can still enforce any existing orders it had previously entered. Once a Circuit Court enters an Order on the issues of custody, visitation or support, any Order entered in the Juvenile Court shall cease and become inoperative. § 20-79

d. Appeal. One may appeal any ruling of the Juvenile Court to the Circuit Court and be afforded a trial de novo, the Notice of Appeal must be filed within 10 days. If one is appealing a support award, an appropriate appeal bond must be posted.

 

XI. OTHER IMPORTANT ISSUES

a. Bankruptcy. Bankruptcy can affect divorce proceedings in several major ways.

i. Pending divorce proceedings involving the equitable distribution of property are automatically stayed upon the filing by one spouse of bankruptcy. A filing of bankruptcy also serves to stay any post-divorce collections until the stay is lifted;

ii. Child support and spousal support are absolutely non-dischargeable in bankruptcy. Many other obligations under a divorce decree or agreement are non-dischargeable in bankruptcy.

b. Taxation. Fully advising a divorce client in the area of taxation can be daunting (and perhaps best left for a tax attorney or CPA), but the most commonly applicable areas where taxation and divorce law intersect are the following:

i. Spousal support is generally deductible for the payor and income for the recipient, but child support is not tax-deductible;

ii. Child dependency exemptions generally may be claimed by the parent whom the child resides with most, however, a Court does have the ability to apportion the deduction between the parents;

iii. Attorney’s fees incurred for the pursuit, but not the avoidance, of spousal support are deductible;

iv. Transfers of property incident to divorce are not taxable;

v. Although separated parties may file a joint income tax return, they are not required to.

vi. Qualified Domestic Relations Orders permit the division of qualified retirement assets without penalty, but monies so divided are subject to standard income tax and penalties if used prior to retirement.

c. Pendente Lite Relief. After a Complaint for Divorce has been filed, and pending a final ruling by the Court, the Court may grant either or both parties temporary, or pendente lite, relief. § 20-103. The Court may:

i. Award spousal support and require the provision of health insurance coverage;

ii. Award preliminary attorney fees and costs of suit;

iii. Prevent either spouse from imposing any restraint on the personal liberty of the other spouse;

iv. Provide for the custody and visitation of any minor children (except in Fairfax);

v. Award child support and provide for health insurance coverage for any minor children;

vi. Award either party exclusive use and possession of the family residence;

vii. To preserve the estate of either spouse;

viii. To compel either spouse to give security to abide any such decree.




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