Month: May 2016

Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?

The decision whether to award spousal support and the amount and duration of spousal support to be awarded are left to the judge’s discretion in Virginia.  The court is required, under §20-107.1(E), to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery, conviction of a felony, cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.  This is a threshold determination that can affect whether a spouse is entitled to support, but that should not affect the duration or amount of support, which should be decided according to the factors numbered 1 through 13 in §20-107.1(E).  A judge must deny spousal support to the guilty spouse when the fault ground of adultery is proven, unless clear and convincing evidence demonstrates that the denial would result in a manifest injustice, as provided in Virginia Code Section 20-107.1(B).

The Virginia Court of Appeals addressed the relationship between fault and support in the unpublished case of Lothar W. Nass v. Arlene Wolin Nass, Record No. 1882-00-1 (April 10, 2001).  In Nass, the parties were married twenty years before separating.  No children were born of the marriage, or adopted.  The husband filed first for a divorce from bed and board under Virginia Code Section 20-95.  The wife filed a cross bill (now properly a counter-claim under Rule 3:9 of the Supreme Court of Virginia for divorce and equitable distribution, alleging cruelty and desertion by husband.  In Virginia, evidence in a divorce case can be presented directly to the court ore tenus or to a commissioner in chancery under Virginia Code Section 8.01-607, a quasi-judicial officer appointed by the court who can make findings of fact and report to the court, or, in some cases, though written or oral depositions.  In Nass, the commissioner found that husband was guilty of cruelty tantamount to constructive desertion and recommended a divorce a vinculo matrimonii or final divorce be entered in favor of the wife.  The husband objected to the commissioner’s report on the grounds that the parties had agreed, during the hearing, to proceed on a no-fault, one year separation, basis, as permitted by Virginia Code Section 20-121.02.  The Virginia Circuit Court overruled husband’s objection granted the wife a divorce on the grounds of desertion and denied husband’s request for spousal support.

On appeal, the Virginia Court of Appeals reversed the trial court’s ruling with respect to the divorce based on constructive desertion, holding that the record demonstrated that husband had validly moved the court for a no-fault divorce under Section 20-121.02 and the evidence supported the relief he requested.  The Virginia Court of Appeals remanded the case to the trial judge to enter a divorce based on living separate and apart for a year, instead of the fault ground of constructive desertion in favor of the wife.

With regard to spousal support, the appellate court first recognized that “[w]hether and how much spousal support will be awarded is a matter of discretion for the trial court”, citing Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240 (1998).  The Virginia Court of Appeals then noted that under Section 20-91(A)(9)(c), the entry of a no fault divorce decree does not lessen the obligation of either spouse to support his or her spouse, unless the spouse proves the existence of a fault ground in his or her favor.   The court further noted that the spousal support section, Section 20-107.1, did not specify how fault grounds were to be considered in making the threshold determination of whether spousal support would be appropriate.  If an award of spousal support were appropriate, then the trial court should consider the factors listed in Section 20-107.1(E).  In this case, the Virginia Court of Appeals found evidence in the record of husband’s egregious conduct toward wife, thus justifying the divorce court judge’s ruling that husband was not entitled to spousal support.

You should consult with your Virginia divorce lawyer concerning whether any fault grounds would prevent you or your spouse from obtaining spousal support.

 

Does a Virginia equitable distribution award to wife based on husband’s adultery, drinking, gambling and verbal abuse require a showing of adverse economic impact?

Not in the case of Attiliis v. Attiliis,  where the Virginia Court of Appeals ruled that husband’s drinking, adultery, gambling and verbal abuse constituted negative nonmonetary contributions to the well-being of the family entitling wife to a Virginia equitable distribution award of $65,000 without a showing of adverse economic impact , citing Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224 (2003) .

In Attiliis, the Virginia Court of Appeals addressed four equitable distribution decisions of the trial court: the distribution of a capital loss carry-forward tax credit; an order to maintain wife as a beneficiary on husband’s life insurance; an award to wife for waste, dissipation of assets, and negative non-monetary contributions; and a finding that husband’s adultery was the primary cause of the dissolution of the marriage.  The Virginia Court of Appeals first restated the rule that it will not reverse the divorce court’s discretion in fashioning an equitable distribution award unless it appears from the record that the divorce court abused its discretion, failed to consider or misapplied the factors in the equitable distribution statute, Virginia Code Section 20-107.3(E), or made essential fact findings unsupported by the evidence.

The Virginia Circuit Court in the Attillis case was reversed on its findings with respect to a $75,000 long-term capital loss carry forward and a $40,070 short-term capital loss carry forward as unsupported by the evidence at trial.  Although Wife had listed a $75,000 capital loss shown on tax returns as an asset on a list of assets in evidence, Wife offered just the couple’s 2005 tax return into evidence, which did not reveal the disputed $75,000 capital loss tax credit.  Further, Wife’s attorney did not cross-examine Husband with respect to the exact amount of the capital loss tax credit when he denied the $75,000 figure, and conceded in his closing argument that Wife was claiming half of a $37,070 capital loss carry forward.

The Circuit Court was also reversed on its ruling that husband was required to maintain wife as a beneficiary on his life insurance policy as without statutory support in Virginia Code Section 20-107.3(G)(2).  Although Virginia Code Section 20-108.1(D) allows a court to order a party to maintain an existing life insurance policy with a child as the beneficiary in a child support proceeding for the duration of a child support obligation, and Virginia Code Section 20-111.1 provides that an existing written contract with a revocable death benefit is revoked upon entry of a divorce decree, unless the parties’ contract or the divorce decree provides otherwise, nothing in the Virginia Code allows a judge to order a spouse to maintain life insurance for the other spouse’s benefit.

With respect to the divorce court’s findings and rulings on waste, dissipation of assets, and negative non-monetary contributions, the Virginia Court of Appeals first reversed the Circuit Court’s equitable distribution award for waste of a bank account following execution of the couple’s separation agreement because the award did not account for husband’s half interest in the wasted funds and thus was unsupported by the evidence.  The court next reversed the divorce court’s award of $50,000 for dissipation of assets as without supporting evidence because waste and dissipation of assets are the same thing and do not occur over the course of the marriage, but instead only while the marriage is undergoing an irreconciliable breakdown.  Finally, the Virginia Court of Appeals upheld the divorce court’s award of $65,000 for husband’s adultery, drinking and verbal abuse because the trial court’s considerations of non-monetary contributions to the well-being of the family do not require a showing of an adverse economic impact, as contended by Husband.

The Virginia Court of Appeals ruled that husband had waived his argument that the circuit court erred in ruling that Husband’s adultery was the primary cause of the dissolution of the marriage because Husband failed to cite legal authority in support of his argument in his appellate opening brief as required by Rule 5A:20 of the Rules of the Supreme Court of Virginia.

You should consult with your Virginia divorce lawyer concerning the likely effects of spousal misbehavior on an equitable distribution award.

When a Virginia divorce is based on adultery, would it be a manifest injustice to deny spousal support to a wife who is still living with her paramour and their son?

Not according to the City of Salem, Virginia, Circuit Court judge in the case of Carter v. Carter , Case No: CL09-524, who denied permanent spousal support or maintenance to the wife who was guilty of adultery and continued to live with her paramour and their child.  While the case does not directly concern bankruptcy law, it does highlight some of the financial repercussions of the fault ground of adultery in a Virginia divorce case.  Under Virginia Code Section 20-107.1, a Virginia divorce court judge shall not award permanent maintenance or support to a guilty spouse when the fault ground of adultery, sodomy or buggery committed outside the marriage exists, under Virginia Code Section 20-91(1), unless the denial of support and maintenance would constitute a manifest injustice, as shown by the higher civil burden of proof of clear and convincing evidence.  The divorce court trial judge would examine the respective degrees of fault during the marriage and the relative economic circumstances of the parties in determining whether such a manifest injustice would result from a denial of alimony or permanent spousal support.

In Carter, the couple were married for sixteen years and had seven children before separating.  The wife had worked prior to the marriage, but did not work outside the home after the marriage.  Both parties were deeply involved with their church and the wife had home schooled the children.  The evidence indicated that the husband abused his role as the spiritual head of the household (in accordance with the parties’ religious beliefs) by belittling his wife and treating her as a child, strictly limiting her budget and holding her accountable for all her spending.  The wife tired of the husband’s neglect and controlling treatment of her and withdrew from the marriage, concentrating on raising her children.  She contacted an old boyfriend through the internet and began going out at night to meet him.  The husband became even more controlling, taking the wife’s cell phone and her car keys from her.  The wife eventually left the marital residence to live with her paramour, with whom she had a child.

The Virginia Circuit Court judge appointed a guardian ad litem to represent the interests of the minor children of the parties in the custody dispute portion of the divorce case.  The report of the guardian ad litem reflected the different views of the husband and the wife toward the marriage, which the husband found fulfilling and the wife found stifling.  The Circuit Court judge held that the wife’s adultery was the legal fault for the divorce of the parties and a negative non-monetary contribution to the marriage.  While the trial judge noted that the adultery was the result of mental neglect, domination and control by the husband, he concluded that those factors did not authorize the adultery.  The judge found the wife to be the more credible party based on the parties’ testimony, but he nevertheless awarded physical custody of the minor children to the husband and denied permanent spousal support or maintenance to the wife.  In equitable distribution, the judge did award a higher portion of the equity in the marital residence to wife rather than husband.

In denying spousal support to the wife, the judge stated that he was bound by the dictates of §20-107.1 of the Code of Virginia, and concluded that no manifest injustice would result from a denial of alimony, without revealing the factual support for that conclusion.  Although the wife had stayed at home to take care of the children for the entire duration of the marriage, the judge did impute income to her at the minimum wage in calculating child support, indicating his belief that she could or should be working now.  The fact that she was still living with her paramour would suggest that she was not without support.  One could reasonable assume that as the judge concluded that the fault ultimately rested on wife’s adultery and her financial circumstances did not leave her destitute, it was not a manifest injustice to deny permanent spousal support to her.

You should discuss with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., whether the marital fault of adultery might result in a denial of permanent spousal support or alimony in your Virginia divorce case.

Will a separation agreement challenged as fraudulent and unconscionable be upheld in a Virginia divorce brought on grounds of adultery?

Not in the case of Derby v. Derby, 8 Va.App.19, 378 S.E.2d 74 (1989), where the Virginia Court of Appeals affirmed the trial court’s findings that the allegations of adultery were sufficient to support a divorce on those grounds and that the separation agreement should be set aside as invalid.

George and Sandra Derby were married on April 19, 1961, and during their twenty-two years of marriage, the parties had two children. On October 6, 1983, Mrs. Derby filed for divorce, claiming cruelty, and Mr. Derby filed a cross-bill alleging adultery on several specified occasions. Approximately ten months after filing for divorce, Mrs. Derby went to the beauty shop owned by both her and her husband. She brought a copy of a settlement agreement her lawyer had drafted, providing for equal distribution of the parties’ assets.  Mrs. Derby, however, called her husband into the parking lot. After a brief discussion, Mr. Derby signed the agreement with a revision granting Mrs. Derby the majority of the parties’ property assets, including all of the parties’ real property. Mr. Derby alleged he signed the agreement while under the impression that if he did so, Mrs. Derby would return to the family home.

In the lower court proceeding, the Court held that the private investigator’s findings of adultery were sufficient to grant a divorce on those grounds but held that the property settlement as invalid. Mrs. Derby challenged the invalidation, arguing that Mr. Derby did not demonstrate fraud, duress, or undue influence by clear and convincing evidence.  To determine whether this invalidation was proper, the Court examined Virginia Code §20-109.1, which states, “[A]ny court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, any valid agreement between the parties.” At issue in this case was the question of validity, which the Court addresses prior to incorporation in the divorce decree unless otherwise uncontested by the parties. See Forrest v. Forrest, 3 Va.App.236, 349 S.E.2d 157 (1986).

The trial court held that the separation agreement should be declared invalid on the basis of constructive fraud. Constructive fraud requires, “[B]reach of legal or equitable duty which, irrespective of moral guilt, is declared by law to be fraudulent because of its tendency to deceive others or violate confidence.” Wells v. Weston, 229 Va. 72, 77, 326 S.E.2d 672, 275-6 (1985). Here, the lower court ruled that Mrs. Derby’s actions of hiding her adultery from her husband and having him sign the agreement knowing he was fostering ideas of her return constituted constructive fraud; however, the Court of Appeals disagreed, stating that the fiduciary duty between the parties was severed by the separation and retention of attorneys, and, therefore, Mrs. Derby’s actions did not breach any duty. See Barnes v. Barnes, 231 Va. 39, 42, 340 S.E.2d 803, 804 (1986) (holding that when a husband and wife separate and employ attorneys, their former confidential and fiduciary relationship ends).

After examining the issue of fraud, the Court turned to whether the separation agreement should be set aside on the issue of unconscionability, which according to the Restatement, means the agreement “was such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.  Restatement (Second) of Contracts § 208 comment b.  In cases of unconscionability, the court examines whether the disparity of values exchanged and the process involved in the reaching of the agreement were such that one party signed at a severe personal detriment. Here, the Court ruled that the terms were so disproportionate and the means of acquiring Mr. Derby’s signature suggested that the contract was unconscionable and should be set aside. Moreover, the Court held that the misrepresentation of Mrs. Derby about her infidelity and her possible return to the marriage, coupled with her preying on Mr. Derby’s emotional weakness created a situation where it would be inequitable to uphold the agreement. Therefore, the Court of Appeals affirmed the trial court’s decision, although it established a different basis for its decision in regards to the separation agreement.

You should consult with your Virginia divorce lawyer concerning the possibility of setting aside your separation agreement.