VACODE

Chapter 1. Pre-Marital Syphilis Tests and Examinations.

§§ 20-1 through 20-12.

Repealed by Acts 1984, c. 140.

Chapter 2. Marriage Generally.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Marriage, §§ 4, 11.

§ 20-13. License and solemnization required.

Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.

History. Code 1919, § 5071.

Cross references.

As to making a false entry in a marriage register, etc., see § 18.2-207 .

As to making a false statement or giving false information to be used for the purpose of making a marriage record or registration, see § 18.2-208 .

Law Review.

For note, “Estop in the Name of Love: A Case for Constructive Marriage in Virginia,” see 49 Wm. & Mary L. Rev. 973 (2007).

Research References.

Family Law and Practice (Matthew Bender). Rutkin.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.02 Marriage. Friend.

Harrison on Wills & Administration for Virginia and West Virginia (Matthew Bender). Chapter 2 Dower and Curtesy. § 2.09 Marriage. Cox.

CASE NOTES

Section is mandatory. —

The enactment of this statute wholly abrogated the common law in force in this State on the subject of marriages; and no marriage or attempted marriage, if it took place in this State, can be held valid here unless shown to have been under a license, and solemnized according to the statutes. The language of this statute is mandatory, and not simply directory. Offield v. Davis, 100 Va. 250 , 40 S.E. 910 , 1902 Va. LEXIS 23 (1902) (see also Colston v. Quander, 1 Va. Dec. 283 (1877); Eldred v. Eldred, 97 Va. 606 , 34 S.E. 477 (1899)).

Definition of “solemnization.” —

Term “solemnization” does not appear in subsection C of § 32.1-267 , and the term “ceremony” does not appear in § 20-13 ; the dissimilar use of these terms implies that the General Assembly has declined to adopt a specific definition for solemnization, leaving the details to the discretion of the officiant and the celebrants. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Void marriage not revived by corrective measures. —

Denial of a wife’s petition to annul a bigamous marriage was error because, contrary to the trial court’s finding, a void bigamous marriage could not have been revived by corrective measures, and the wife’s action in obtaining a falsified marriage certificate was not an option because, under § 20-13 , marriages in Virginia had to be solemnized; a marriage license presupposed a “marriage ceremony” solemnizing the union, and whatever formalities the ceremony required, at the very least it required the attendance of both the bride and groom. Section 20-31 had no application in cases where the putative marriage was void ab initio. Davidson v. Davidson, 2009 Va. App. LEXIS 313 (Va. Ct. App. July 14, 2009).

Marriage ceremony before license. —

Trial court properly ruled that a husband and wife never married because their marriage ceremony was not under a license since the husband and wife did not have a license when they held their marriage ceremony, and when they did obtain a license they did not perform any kind of solemnization; mailing a license via express mail for a signature when the parties were not even present did not constitute “solemnization.” MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Statute does not expressly state that the license must precede solemnization, but that is its most reasonable reading; statute indicates that, to contract a lawful marriage in Virginia, the parties must obtain a license and, afterward, solemnize their union under that license. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Performance of ceremony without license. —

By attaching a criminal penalty to the performance of a ceremony of marriage without a license, the General Assembly clarified its intention that a lawful marriage be contracted by solemnization after a license has been obtained; the statutes make plain the General Assembly’s intent that a license must precede the solemnization ceremony. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Marriage valid. —

Although the court of appeals correctly reversed the ruling that the parties’ marriage was void ab initio, it incorrectly concluded the marriage was voidable upon the challenge of either party because the husband failed to rebut the strong presumption favoring the validity of the marriage; the solemnization agreement did not violate any existing Virginia statute or case law and satisfied the objects of the statute to insure publicity and preserve evidence of marriage. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Rabbi’s alleged violation of § 20-28 did not invalidate a marriage because even if the rabbi violated § 20-28 , his violation of § 20-28 did not affect the only two requirements to create a valid marriage under § 20-13 , a license and solemnization. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Marriage was not voidable or void ab initio because the solemnization agreement, a ceremony followed by the issuance of a marriage license, the joint presentation of the marriage register to a rabbi, and the rabbi’s execution of the marriage certificate, did not violate any Virginia statute or case law; therefore, the circuit court had authority to distribute marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Solemnization. —

For the purposes of solemnization, a ceremony merely serves to authenticate the parties’ intent to marry. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Nothing in the governing statutes or case law renders a marriage void ab initio or voidable merely because the officiant and celebrants agree in advance to solemnize the marriage. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

Solemnization occurred because a husband and a wife obtained the marriage register and forwarded it to the rabbi pursuant to their agreement, which they made with the rabbi in person at the earlier ceremony, and the rabbi thereafter executed the marriage certificate in accordance with their agreement; by doing so, the husband and the wife repeated and reaffirmed to the rabbi their joint, unqualified intent to marry, and nothing in any statute or case law forbade them from verifying their intent. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

As long as consent to be married is presently expressed to and, at the same time, received by the officiant when the celebrants possess a marriage license, a valid marriage is created. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

CIRCUIT COURT OPINIONS

Section is mandatory. —

In a case in which a husband and wife were married in a religious ceremony and sought to have their marriage confirmed by a court pursuant to §§ 20-31 and 20-90 , they had not obtained a marriage license, as required by § 20-13 . While the parties might remain married according to their religion, their marriage ceremony conferred no legal rights between them under the laws of the Commonwealth of Virginia, and the court could not issue a marriage license retroactive to the date of the religious ceremony. In re Ejigu, 79 Va. Cir. 349, 2009 Va. Cir. LEXIS 127 (Fairfax County Sept. 30, 2009).

Consideration of foreign common-law marriages. —

A husband’s motion to dismiss a wife’s divorce action was denied because the Texas statute of limitations for an action to prove a common-law marriage that was in effect at the time the parties allegedly entered into a common law marriage was not applicable pursuant to Virginia’s choice of law rules, and Virginia did not have a statute of limitations for such an action, as Virginia required that marriages had to be solemnized by a license in order to be valid. Reynolds v. Reynolds, 60 Va. Cir. 414, 2002 Va. Cir. LEXIS 412 (Rockingham County Dec. 13, 2002), dismissed, 62 Va. Cir. 114, 2003 Va. Cir. LEXIS 315 (Rockingham County June 4, 2003).

Ceremony must take place within Commonwealth. —

Ceremony contemplated by Virginia’s statutes must take place within the Commonwealth, and a ceremony that takes place outside the Commonwealth even if performed by a Virginia-licensed celebrant has no legal effect in terms of creating a valid Virginia marriage; the phrase “in this Commonwealth” in the statute supports the conclusion that the solemnization requirement must occur within the geographic confines of the Commonwealth. Porter v. Porter, 97 Va. Cir. 81, 2017 Va. Cir. LEXIS 304 (Fairfax County Oct. 11, 2017).

Marriage null and void ab initio. —

Parties’ marriage was null and void ab initio because it did not meet the statutory requirements of licensure followed by solemnization, as the marriage license was obtained after the marriage ceremony and was subsequently signed by the officiant without either party being present. Moreover, the curative statute, § 20-31 , and estoppel, as well as other equitable remedies, were not applicable because the alleged marriage was void ab initio. MacDougall v. Levick, 87 Va. Cir. 160, 2013 Va. Cir. LEXIS 87 (Fairfax County Oct. 10, 2013), aff'd, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), aff'd, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Marriage of a husband and wife was void ab initio because Virginia case law and statutes clearly dictated that in order to form a valid marriage in Virginia, the parties had to have a Virginia license and a Virginia ceremony, but the husband and wife had the license and lacked the ceremony; given that both a license and a solemnization were required, and the solemnization had to taken place in the Commonwealth, it was not a marriage that “in all other respects was lawful.” Porter v. Porter, 97 Va. Cir. 81, 2017 Va. Cir. LEXIS 304 (Fairfax County Oct. 11, 2017).

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

A court does not have the statutory or equitable authority to affirm marriages that were not performed under a license of marriage. See opinion of Attorney General to The Honorable John T. Frey, Fairfax Circuit Court Clerk, 09-072, 2009 Va. AG LEXIS 50 (12/10/09).

A court may not direct a circuit court clerk to issue marriage licenses retrospectively when marriages were not performed under a license of marriage. See opinion of Attorney General to The Honorable John T. Frey, Fairfax Circuit Court Clerk, 09-072, 2009 Va. AG LEXIS 50 (12/10/09).

Authority to perform the rites of matrimony. —

The authority vested in a minister or other person authorized to perform the rites of matrimony in Virginia does not extend to a celebration of marriage under a Virginia marriage license when the ceremony is conducted outside the territorial boundaries of the Commonwealth of Virginia. See opinion of Attorney General to The Honorable Michele B. McQuigg, Prince William County Circuit Court Clerk, 10-025, 2010 Va. AG LEXIS 28 (5/18/10).

§ 20-13.1. Repealed by Acts 1995, c. 355, cl. 2.

§ 20-14. By whom license to be issued.

Every license for a marriage shall be issued by the clerk or deputy clerk of a circuit court of any county or city. If from any cause neither the clerk nor his deputy is able to issue the license, it may be issued by the judge of the circuit court of such county, or city, who shall make return thereof to the clerk as soon as there may be one.

History. Code 1919, § 5072; 1924, p. 398; 1948, p. 107; 1968, c. 318; 1977, c. 102; 1995, c. 355.

Law Review.

For 1995 survey of domestic relations, see 29 U. Rich. L. Rev. 993 (1995).

CASE NOTES

License mandatory. —

Parties must obtain a marriage license before holding the marriage ceremony; it is the General Assembly’s intent that a license must precede the solemnization ceremony. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

License and solemnization. —

Statute was not violated because the marriage license was obtained 15 days prior to the culmination of the solemnization agreement, the day on which a rabbi received the marriage register and executed the marriage certificate as promised. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-14.1. Duration of license; issuance of additional licenses.

Every marriage license issued under § 20-14 shall constitute authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees. Whenever such sixty-day period shall have elapsed without the solemnization of a marriage of the licensees, the license shall expire.

The provisions of this section shall not be construed to prevent licensees from applying for or receiving an additional license, either before or after expiration of any license, but no new license shall be issued except in compliance with all provisions of law applicable to the issuance of a license in the first instance.

History. 1958, c. 8; 1968, c. 318.

CASE NOTES

License and solemnization. —

Statute plainly contemplates a specific order: the parties must obtain a license and, within the sixty days following, solemnize their union; if a ceremony does not occur within that time, the license expires, and at that point, if the parties still wish to be married, they must apply for a new license. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Statute was not violated because the marriage license issued to a husband and a wife was obtained 15 days prior to the culmination of their solemnization agreement, the day on which the rabbi received the marriage register and executed the marriage certificate as promised; the statute did not address, much less prohibit, the unique sequence agreed to by the husband, the wife, and the rabbi. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

CIRCUIT COURT OPINIONS

Marriage was void ab initio. —

Parties’ marriage was null and void ab initio because it did not meet the statutory requirements, under § 20-13 , of licensure followed by solemnization, as the marriage license was obtained after the marriage ceremony and was subsequently signed by the officiant without either party being present. Moreover, the curative statute, § 20-31 , and estoppel, as well as other equitable remedies, were not applicable because the alleged marriage was void ab initio. MacDougall v. Levick, 87 Va. Cir. 160, 2013 Va. Cir. LEXIS 87 (Fairfax County Oct. 10, 2013), aff'd, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), aff'd, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

§ 20-14.2. Repealed by Acts 2012, c. 802, cl. 2.

Editor’s note.

Former § 20-14.2 , pertaining to health information to be furnished to applicants for license, derived from Acts 1972, c. 600; 1978, c. 567; 1987, c. 42; 1999, c. 582.

§ 20-15. Tax on license.

On each marriage license issued under § 20-14 there is hereby levied a license tax of $20, which tax shall be collected by the clerk when the license is issued and accounted for as in the case of other state taxes collected by him. Ten dollars of this license tax shall be allocated to the Virginia Department of Social Services for the purpose of providing services to victims of domestic violence.

History. Code 1919, § 5072; 1924, p. 398; 1948, p. 107; 1975, c. 119; 1982, c. 305; 1993, c. 887; 2004, c. 375.

The 2004 amendments.

The 2004 amendment by c. 375 substituted “$20” for “twenty dollars” in the first sentence and added the second sentence.

§ 20-16. Issuance of marriage licenses and marriage certificates.

The clerk issuing any marriage license shall require the parties contemplating marriage to state, under oath, the information required to complete the application for marriage license. The parties shall be able to designate themselves on the application for marriage license as spouse, bride, or groom. The clerk shall provide the parties with two copies of the marriage certificate to be completed by the marriage officiant, who shall return the completed certificates to the clerk after the marriage ceremony of the parties. The clerk shall retain one copy of the completed marriage certificate and provide the other copy to the State Registrar of Vital Records. The clerk may provide the parties with a commemorative marriage certificate and the parties may request a certified copy of the official marriage certificate as provided in Article 7 (§ 32.1-270 et seq.) of Chapter 7 of Title 32.1. For the purposes of this section any statement made by such applicant, under oath, concerning the information to be entered on the application for marriage license is hereby declared to be a material matter or thing in any prosecution for perjury for any violation of this section.

History. Code 1919, § 5074; 1928, p. 314; 1938, p. 151; 1968, c. 318; 2015, c. 708.

The 2015 amendments.

The 2015 amendment by c. 708 rewrote the section, which read “The clerk issuing any marriage license shall before issuing the license require the parties contemplating marriage to state, under oath, or by affidavit or affidavits filed with him, made by the parties for whom the application is made, before a person qualified to take acknowledgments or administer oaths, the information required to complete the marriage record. Such clerk shall make two certificates thereof and deliver them, together with the license, to the person entitled thereto. For the purposes of this section any statement made by such applicant, under oath, concerning the information to be entered on the record is hereby declared to be a material matter or thing in any prosecution for perjury for any violation of this section.”

CASE NOTES

License and solemnization. —

Statutes make plain the General Assembly’s intent that a license must precede the solemnization ceremony. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-16.1. Clerk authorized to amend marriage records.

The clerk (i) may, on his own authority, correct marriage records established in his office by amending the same upon application under oath and submission of evidence deemed by the clerk to be adequate and sufficient and (ii) shall correct such records upon order of the court in which the marriage record was established. Upon correction of a marriage record the clerk shall forward to the State Registrar a certified copy of the corrected marriage record.

History. 1988, c. 54.

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§§ 20-17 through 20-19. Repealed by Acts 1968, c. 318.

§ 20-20. Clerk to file license and certificate; indexing names of parties; certified copies as evidence.

The clerk to whom the license and certificate are returned, shall file and preserve the original in his office, and make an index of the names of both of the parties married.

When the certificates of such person celebrating such marriage are returned to the clerk, and recorded as provided in this section and § 32.1-267 , copies of the same properly certified by the clerk lawfully having the custody thereof or properly certified by the State Registrar of Vital Records shall be prima facie evidence of the facts therein set forth in all courts of this Commonwealth.

History. Code 1919, §§ 5074, 5076; 1928, p. 315; 1938, p. 152; 1968, c. 318.

Editor’s note.

At the direction of the Virginia Code Commission, substituted “State Registrar of Vital Records” for “State Registrar of Vital Statistics.”

CASE NOTES

The second paragraph of this section applies to the minister’s certificate, and does not include statements made in the application for the license. Parker v. American Lbr. Corp., 190 Va. 181 , 56 S.E.2d 214, 1949 Va. LEXIS 273 (1949).

OPINIONS OF THE ATTORNEY GENERAL

Public may access marriage licenses and certificates. —

Original marriage licenses and certificates maintained by the clerk of the circuit court constitute vital records, and such records are open to inspection by the public and the public may have access to microfilmed copies of such records. See opinion of Attorney General to The Honorable Michael M. Foreman, Clerk, Circuit Court of the City of Winchester, 00-058, 2000 Va. AG LEXIS 54 (9/27/00).

License mandatory. —

§ 20-21. Clerk to furnish attorney for the Commonwealth list of licenses not returned by minister.

It shall be the duty of every clerk issuing marriage licenses no later than March 31 of each year to furnish to the attorney for the Commonwealth of his county or city a list of all marriage licenses issued during the preceding calendar year that have not been returned by the minister or other person celebrating the marriage.

History. Code 1919, § 5074; 1928, p. 314; 1938, p. 151; 2000, cc. 31, 214.

The 2000 amendments.

The 2000 amendments by cc. 31 and 214 are identical, and rewrote the section.

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-22. Attorney for the Commonwealth to ascertain before circuit court name of minister failing to return certificates.

It shall be the duty of the attorney for the Commonwealth for each county and city, upon the receipt from the clerk of the list required by § 20-21 , to have such person or persons as he may think proper summoned before the circuit court of his county or city to ascertain the name of the minister or other person celebrating such marriage and failing to return the license and certificates to the clerk as required by § 32.1-267 .

History. Code 1919, § 5074; 1928, p. 314; 1938, p. 151; 1979, c. 502.

§ 20-23. Order authorizing ministers to perform ceremony.

When a minister of any religious denomination produces before the circuit court of any county or city in the Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he is commissioned to pastoral ministry or holds a local minister’s license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in the Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof. No oath shall be required of a minister authorized to celebrate the rites of matrimony, nor shall such minister be considered an officer of the Commonwealth by virtue of such authorization.

History. Code 1919, §§ 5079, 5080; 1962, c. 362; 1980, c. 154; 1981, c. 295; 2012, c. 565; 2016, c. 611.

The 2012 amendments.

The 2012 amendment by c. 565 inserted “is commissioned to pastoral ministry or” in the first sentence.

The 2016 amendments.

The 2016 amendment by c. 611, in the first sentence, substituted “produces” for “shall produce” and substituted “the Commonwealth” for “this Commonwealth” twice and added the last sentence.

Research References.

Virginia Forms (Matthew Bender). No. 2-1613. Order Authorizing a Minister to Celebrate the Rites of Marriage.

CASE NOTES

The interest of the Commonwealth is not only in marriage as an institution, but in the contract between the parties who marry, and in the proper memorializing of the entry into, and execution of, such a contract. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

The State has no official interest in the place where a marriage occurs, or in the ceremony or ritual which surrounds the act. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

The General Assembly was not concerned with preferring one sect over another in the enactment of this section. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

This section is not designed to encourage church marriages or marriage by ministers. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

Neither the word “ordination” nor “communion” is used in this section in an ecclesiastical sense, for the legislature was not concerned with the religious aspect of the marriage ceremony. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

This section amounts to a blanket qualification of all ministers selected or elected by religious organizations and societies. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

Who is minister referred to in section. —

The minister referred to in this section is the head of a religious congregation, society or order. He is set apart as the leader. He is the person elected or selected in accordance with the ritual, bylaws or discipline of the order. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

In treating ministers as a class, the General Assembly obviously meant to qualify those individuals who, in accordance with the rules, regulations and discipline of their church, religious sect or organization, had been selected or elected as ministers. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

The General Assembly never intended to qualify, for licensing to marry, a minister whose title and status could be casually and cavalierly acquired. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

Ministers qualifying for appointment are members of narrow class. —

Ministers qualifying for appointment under this section, like the ministers exempt under the Selective Service Act, are members of a narrow class intended for the leaders of the various religious faiths and not for the members generally. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

Clerk of Quaker meeting within definition of “minister.” —

The clerk of a Quaker meeting is its designated administrative official, meets with the members of the meeting for weekly worship, and performs such ministerial duties in meeting for worship and meeting for business as are consistent with Quaker discipline, and he, therefore, meets the definition of a “minister” who has furnished “proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member” within the meaning of this section. In re Ginsburg, 236 Va. 165 , 372 S.E.2d 387, 5 Va. Law Rep. 598, 1988 Va. LEXIS 104 (1988).

A church which consists of all ministers, and in which all new converts can become instant ministers, in fact has no “minister” within the contemplation of this section. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

Selection or election of ministers must be a considered, deliberate and responsible act. It must be an authoritative act. Cramer v. Commonwealth, 214 Va. 561 , 202 S.E.2d 911, 1974 Va. LEXIS 178, cert. denied, 419 U.S. 875, 95 S. Ct. 137, 42 L. Ed. 2d 114, 1974 U.S. LEXIS 2818 (1974).

CIRCUIT COURT OPINIONS

Authorization to perform marriages. —

Members could not have been approved to perform marriages under § 20-23 because they were of the Sikh faith, there were no ministers or leaders in Sikhism, and this type of religious structure could not have had individuals approved under § 20-23 ; however, § 20-26 applied. In re Dhanoa, 86 Va. Cir. 373, 2013 Va. Cir. LEXIS 18 (Fairfax County Mar. 29, 2013).

Marriage void ab initio. —

Ceremony must take place within Commonwealth. —

Ceremony contemplated by Virginia’s statutes must take place within the Commonwealth, and a ceremony that takes place outside the Commonwealth even if performed by a Virginia-licensed celebrant has no legal effect in terms of creating a valid Virginia marriage; phrase “in the Commonwealth” is not surplusage but emphasizes the geographical limitations of the statute, and in other words, a Virginia Circuit Court may only authorize a minister to celebrate the rites of matrimony in the Commonwealth. Porter v. Porter, 97 Va. Cir. 81, 2017 Va. Cir. LEXIS 304 (Fairfax County Oct. 11, 2017).

OPINIONS OF THE ATTORNEY GENERAL

No investigation required of facially valid ordination or certificate to determine authenticity of religious society or denomination. —

A clerk of the circuit court is not required to investigate proof of a facially valid ordination or certificate to determine the authenticity of a given religious society or denomination for the purposes of authorization pursuant to the statute; further, the clerk has discretion to allow individuals issued “Credentials of Ministry” by a Universal Life Church in California to qualify as “ministers.” See opinion of Attorney General to The Honorable Thomas M. Moncure Jr., Clerk, Circuit Court of Stafford County, 01-057 (11/29/01).

Authorization to perform marriages. —

A minister may be authorized to perform marriages pursuant to this section, upon production of proof before the circuit court of his ordination or licensure, without personally appearing before the circuit court clerk. See opinion of Attorney General to The Honorable Edward Semonian, Clerk, Circuit Court of the City of Alexandria, 02-066 (9/10/02).

Authority to perform the rites of matrimony. —

§ 20-24. Penalty for failure to certify record of marriage.

If any minister, authorized to celebrate rites of marriage under § 20-23 , shall fail to comply with § 32.1-267 , he shall be subject to forfeit twenty-five dollars.

History. Code 1919, § 5093; 1979, c. 502; 1981, c. 298.

§ 20-25. Persons other than ministers who may perform rites.

Upon petition filed with the clerk and payment of applicable clerk’s fees, any circuit court judge may issue an order authorizing one or more persons resident in the circuit in which the judge sits to celebrate the rites of marriage in the Commonwealth. Any person so authorized shall, before acting, enter into bond in the penalty of $500, with or without surety, as the court may direct. Any order made under this section may be rescinded at any time. No oath shall be required of a person authorized to celebrate the rites of marriage, nor shall such person be considered an officer of the Commonwealth by virtue of such authorization.

Any judge or justice of a court of record, any judge of a district court, any retired judge or justice of the Commonwealth, any active, senior, or retired federal judge or justice who is a resident of the Commonwealth, and any current (i) member of the General Assembly, (ii) Governor of Virginia, (iii) Lieutenant Governor of Virginia, and (iv) Attorney General of Virginia may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization.

History. Code 1919, § 5080; 1938, c. 152; 1981, c. 295; 1981, Sp. Sess., c. 15; 1983, c. 64; 1985, c. 195; 1987, c. 149; 2003, c. 228; 2004, cc. 612, 680; 2012, c. 802; 2016, c. 611; 2021, Sp. Sess. I, c. 87.

Cross references.

As to incompatibility of district court judge serving as marriage celebrant appointed by the circuit court, see § 16.1-69.19.

The 2003 amendments.

The 2003 amendment by c. 228 rewrote the section.

The 2004 amendments.

The 2004 amendments by c. 612, effective April 12, 2004, and c. 680, effective July 1, 2004, are identical, and in the first sentence of the first paragraph, substituted “circuit in” for “jurisdiction in” and “the Commonwealth” for “such jurisdiction.”

The 2012 amendments.

The 2012 amendment by c. 802 added “Upon petition filed with the clerk and payment of applicable clerk’s fees,” at the beginning of the first paragraph.

The 2016 amendments.

The 2016 amendment by c. 611, in the first paragraph, added the last sentence, and in the last paragraph, substituted “district court, any retired judge or justice of the Commonwealth, and any active” for “district court or, any retired judge or justice of the Commonwealth or, any active.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 87, effective July 1, 2021, inserted “and any current (i) member of the General Assembly, (ii) Governor of Virginia, (iii) Lieutenant Governor of Virginia, and (iv) Attorney General of Virginia” in the second paragraph and made a related change.

Law Review.

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Research References.

Virginia Forms (Matthew Bender). No. 2-1613. Order Authorizing a Minister to Celebrate the Rites of Marriage.

OPINIONS OF THE ATTORNEY GENERAL

Persons appointed as marriages celebrants under § 20-25 before July 1, 2003, may continue to perform marriages throughout the Commonwealth and are not limited by the 2003 amendment to that statute to their resident jurisdiction. See opinion of Attorney General to The Honorable Michael D. Wolfe, Clerk, Circuit Court of Alleghany County, 03-082 (10/10/03).

Persons appointed by court order on or after July 1, 2003, are limited to performing marriages in their resident jurisdiction, and a change of residence to another jurisdiction will terminate the authority of a celebrant to perform marriages in the former resident jurisdiction. See opinion of Attorney General to The Honorable Michael D. Wolfe, Clerk, Circuit Court of Alleghany County, 03-082 (10/10/03).

Authority to perform the rites of matrimony. —

Retired judge. —

A retired judge may perform marriages, even if he has voluntarily had his name removed from the Supreme Court’s recall list; he is still a “retired judge” so long as he remains in good standing with the Supreme Court of Virginia, and is a “public official” subject to possible recall under §§ 16.1-69.22:1 or 17.1-106 . See opinion of Attorney General to The Honorable Colleen K. Killilea, Judge, Williamsburg/James City County General District Court, 15-044, 2016 Va. AG LEXIS 15 (9/1/16).

§ 20-26. Marriage between members of religious society having no minister.

Marriages between persons belonging to any religious society which has no ordained minister, may be solemnized by the persons and in the manner prescribed by and practiced in any such society. One person chosen by the society shall be responsible for completing the certification of marriage in the same manner as a minister or other person authorized to perform marriages; such person chosen by the society for this purpose shall be required to execute a bond in the penalty of $500, with surety. No oath shall be required of a person authorized to celebrate the rites of marriage, nor shall such person be considered an officer of the Commonwealth by virtue of such authorization.

History. Code 1919, § 5081; 1968, c. 318; 1981, c. 295; 2016, c. 611.

The 2016 amendments.

The 2016 amendment by c. 611 added the last sentence.

Research References.

Virginia Forms (Matthew Bender). No. 2-1613. Order Authorizing a Minister to Celebrate the Rites of Marriage.

CIRCUIT COURT OPINIONS

Constitutionality. —

Bond requirement of § 20-26 was unconstitutional; further, the one person requirement was insufficiently narrowly tailored as required by the Equal Protection Clause and thus § 20-26 unconstitutionally discriminated against the members on the basis of their religion. The members were found to have been appropriate individuals to perform wedding ceremonies. In re Dhanoa, 86 Va. Cir. 373, 2013 Va. Cir. LEXIS 18 (Fairfax County Mar. 29, 2013).

Authorization to perform marriages. —

§ 20-27. Fee for celebrating marriage.

Any person authorized under § 20-25 to celebrate the rites of marriage shall be permitted to charge the parties a fee for the ceremony not to exceed $75 for each ceremony. Such person and parties may negotiate payment for any additional services agreed to by the celebrant and the parties. Additionally, such person shall be permitted to charge the parties travel expenses to and from the marriage site. If conveyance is by public transportation, reimbursement shall be at the actual cost thereof. If conveyance is by private transportation, reimbursement shall be at the rate specified in the current general appropriations act of the Commonwealth. In either event, the actual cost of the ceremony together with travel expenses shall be given to the parties at least three days prior to the marriage ceremony.

History. Code 1919, § 5083; 1970, c. 362; 1975, c. 644; 1993, cc. 941, 966; 2006, c. 625; 2014, c. 529; 2020, c. 181.

The 2006 amendments.

The 2006 amendment by c. 625, in the first sentence, inserted “under § 20-25 ” and substituted “$50” for “thirty dollars.”

The 2014 amendments.

The 2014 amendment by c. 529 added the second sentence.

The 2020 amendments.

The 2020 amendment by c. 181 substituted “$75” for “$50.”

§ 20-28. Penalty for celebrating marriage without license.

If any person knowingly perform the ceremony of marriage without lawful license, or officiate in celebrating the rites of marriage without being authorized by law to do so, he shall be confined in jail not exceeding one year, and fined not exceeding $500.

History. Code 1919, § 4542.

Research References.

Virginia Forms (Matthew Bender). No. 2-1613. Order Authorizing a Minister to Celebrate the Rites of Marriage.

CASE NOTES

License mandatory. —

Solemnization. —

Even if a rabbi violated the statute, the marriage was not voidable or void ab initio because the violation did not affect the only two requirements to create a valid marriage, a license and solemnization. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-29. Repealed by Acts 1975, c. 644.

§ 20-30. Licenses of persons on federal reservations.

The clerks of the circuit courts of any counties or their deputies and the clerks of the circuit courts of any cities or their deputies are authorized to issue marriage licenses in conformity with the law now governing the same, to any persons desiring to be married on any of the government reservations of this Commonwealth, lying within their respective counties and which reservations were before the acquisition thereof part of the political territory of this Commonwealth, and any marriage ceremony performed on such reservations shall be as legal to all intents and purposes as if performed in any county or city of the Commonwealth, if the person performing the ceremony was qualified to so act.

All marriages heretofore solemnized within the limits of any such reservations are hereby ratified and legalized to all intents and purposes as if performed in any county or city of the Commonwealth.

History. 1930, p. 701; Michie Code 1942, § 5077a.

CASE NOTES

License mandatory. —

§ 20-31. Belief of parties in lawful marriage validates certain defects.

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

History. Code 1919, § 5082.

Cross references.

As to void marriages, see § 20-45.1 . As to minimum age of marriage with consent of parent or guardian, see § 20-48 .

Law Review.

For note, “Estop in the Name of Love: A Case for Constructive Marriage in Virginia,” see 49 Wm. & Mary L. Rev. 973 (2007).

Research References.

Virginia Forms (Matthew Bender). No. 5-116. Complaint for Annulment.

CASE NOTES

Applicability. —

Statute did not apply because a husband and wife did not solemnize their marriage under a license, which was a prerequisite to the application of the statute, nothing in the record indicated that a rabbi lacked the authority to perform weddings, and the license was not defective in any way; the medicine in the statute’s cabinet is not formulated so as to spring to life a marriage that, in the eyes of Virginia law, never was. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

Lack of consent of parent does not invalidate marriage of infant. —

Although common-law marriages are void in Virginia, under the provision of this section the validity of a marriage is not affected by the want of authority of the person issuing the marriage license, or any defect, omission or imperfection in such license. Accordingly, the marriage of an infant is valid, although the license was issued by the clerk without the authority of the parent or guardian of the infant in writing, as required by § 20-49 . Stanley v. Rasnick, 137 Va. 415 , 119 S.E. 76 (1923). But see § 20-45.1 .

Statute inapplicable where marriage is void ab initio. —

Denial of a wife’s petition to annul a bigamous marriage was error because, contrary to the trial court’s finding, a void bigamous marriage could not have been revived by corrective measures, and the wife’s action in obtaining a falsified marriage certificate was not an option because, under § 20-13 , marriages in Virginia had to be solemnized; a marriage license presupposed a “marriage ceremony” solemnizing the union, and whatever formalities the ceremony required, at the very least it required the attendance of both the bride and groom. This section had no application in cases where the putative marriage was void ab initio. Davidson v. Davidson, 2009 Va. App. LEXIS 313 (Va. Ct. App. July 14, 2009).

Solemnization. —

Presumption of validity. —

Marriage was not voidable or void ab initio because the husband failed to rebut the strong presumption favoring the validity of his marriage; the solemnization agreement, a ceremony followed by the issuance of a marriage license, the joint presentation of the marriage register to a rabbi, and the rabbi’s execution of the marriage certificate, did not violate any Virginia statute or case law. Levick v. MacDougall, 294 Va. 283 , 805 S.E.2d 775, 2017 Va. LEXIS 158 (2017).

CIRCUIT COURT OPINIONS

Statute inapplicable where marriage is void ab initio. —

Marriage void ab initio. —

Ceremony must take place within Commonwealth. —

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-31.1. When marriage legitimates children; issue of marriages prohibited by law, etc., legitimate.

If a person, having had a child, shall afterwards intermarry with the mother or father, such child if recognized by both of them, as their own child, jointly or separately, before or after marriage, shall be deemed legitimate.

The issue of marriages prohibited by law, deemed null or void or dissolved by a court shall nevertheless be legitimate.

History. 1978, c. 647.

Law Review.

For survey of Virginia law on domestic relations for the year 1970-1971, see 57 Va. L. Rev. 1487 (1971).

For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

For survey of Virginia law on domestic relations for the year 1976-77, see 63 Va. L. Rev. 1418 (1977).

For survey of Virginia law on trust and estates for the year 1976-1977, see 63 Va. L. Rev. 1503 (1977).

For article, “Inheritance Rights of Children in Virginia,” see 12 U. Rich. L. Rev. 275 (1978).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Illegitimate Children, §§ 3, 4.

CASE NOTES

Analysis

I. General Consideration.
II. Legitimation by Marriage.
III. Legitimacy Though Marriage Null.

I.General Consideration.

Editor’s note.

The cases cited in the notes below were decided under former §§ 64.1-6 and 64.1-7.

For history of legitimation provisions, see Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

Purpose and construction. —

Former § 64.1-6 (similar to the first paragraph), former § 64.1-7 (similar to the second paragraph) and § 20-43 are remedial in their nature and should be liberally construed. When so construed it is apparent that the object and purpose of their enactment was to remove the stain and disabilities of bastardy from all “innocent and unoffending” children who, for any cause, might be classed as illegitimate. Goodman v. Goodman, 150 Va. 42 , 142 S.E. 412 , 1928 Va. LEXIS 292 (1928); McClaugherty v. McClaugherty, 180 Va. 51 , 21 S.E.2d 761, 1942 Va. LEXIS 145 (1942).

Legitimation may be defined to be the investment of an illegitimate child with the rights of one born in wedlock and is but a legal equalization of certain children illegitimately begotten with legitimate children. Bond v. Bond, 16 Va. L. Reg. 411 (1910).

II.Legitimation by Marriage.

In order for child to be legitimate under former § 64.1-6 (similar to the first paragraph) it was necessary: (1) that the man should have had a child by the woman; (2) that the man and woman should have intermarried after the birth of the child; and (3) that the child should have been recognized by the man before or after the marriage. These were facts to be proved as in any other case, and the burden was on the child to prove them. Bennett v. Toler, 56 Va. (15 Gratt.) 588, 1860 Va. LEXIS 21 (1860); Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921); Harper v. Harper, 159 Va. 210 , 165 S.E. 490 , 1932 Va. LEXIS 183 (1932).

If the marriage of the parents was entered into in accordance with the forms and ceremonies of the law, and the child was recognized by his father, either before or after the marriage, the conditions of former § 64.1-6 were complied with and the child would be deemed legitimate. Goodman v. Goodman, 150 Va. 42 , 142 S.E. 412 , 1928 Va. LEXIS 292 (1928).

To establish legitimacy under former § 64.1-6, it was necessary to identify the father, prove his intermarriage with the mother, and show that before or after the marriage he recognized the child. Parker v. Harcum, 201 Va. 441 , 111 S.E.2d 449, 1959 Va. LEXIS 247 (1959).

Meaning of “intermarry.” —

Every marriage is either valid or invalid, and former § 64.1-6 (similar to the first paragraph) did not declare that the marriage between the man and the woman had to be a valid marriage in order to legitimate a child born before the marriage. Since former § 64.1-7 (similar to the second paragraph) legitimated children born after the celebration of a void marriage, the word “intermarry” in former § 64.1-6 was used in its broadest sense and was intended to include every marriage, valid or void, entered into in accordance with the forms and ceremonies of the law, even though one of the parties was incapacitated to enter into the marriage contract. Goodman v. Goodman, 150 Va. 42 , 142 S.E. 412 , 1928 Va. LEXIS 292 (1928).

Marriage requirement. —

Former § 64.1-6 (similar to the first paragraph) did not apply where there had been no marriage between the parents. Eldred v. Eldred, 97 Va. 606 , 34 S.E. 477 , 1899 Va. LEXIS 77 (1899).

The requirement of former § 64.1-6 (similar to the first paragraph) for the legitimating of a child born out of wedlock was that the father intermarry, i.e., enter into the marriage status, with the mother of the child. There is but one marriage status known to the law, and from it flows the legal obligation of the husband to maintain and support the wife and child. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 , 1920 Va. LEXIS 29 (1920).

The word “recognized” means that the father should have acknowledged, accepted, admitted or owned the child as his. Harmon v. D'Adamo, 195 Va. 125 , 77 S.E.2d 318, 1953 Va. LEXIS 182 (1953); Parker v. Harcum, 201 Va. 441 , 111 S.E.2d 449, 1959 Va. LEXIS 247 (1959).

Recognition essential. —

There is a clear intent on the part of the legislature to make recognition by the putative father essential to the legitimation of a bastard. In order for such recognition of a bastard by its putative father to be binding, it must be definite and certain, and one in which the paternity of the child is plainly and unequivocally acknowledged, accepted, admitted or owned by the father. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

Evidence and presumptions as to recognition. —

Marriage is an evidential fact to be considered along with other evidence in determining the fact of recognition, but it is far from being conclusive, and the surrounding circumstances may be such as to utterly divest it of all weight whatever, as where it is entered into at the point of a pistol. The value of the fact of marriage, therefore, as evidence tending to show recognition, must in each case depend upon the circumstances surrounding and attending the marriage. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

The proof of paternity and subsequent marriage may be clear, but that is not enough. The child must be “recognized” by the man as his child. No amount of testimony on the part of the mother or other persons as to the paternity of the child can supply the place of recognition by the putative father. He, and he alone, can fulfill the requirement of the statute that the child shall be “recognized” by him. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

Every fair presumption should be indulged in favor of legitimacy rather than illegitimacy, and, in doubtful cases, in support of the judgment of the trial court. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

The question is not how often putative father denied paternity, but whether at any time he recognized the child as his. Parker v. Harcum, 201 Va. 441 , 111 S.E.2d 449, 1959 Va. LEXIS 247 (1959).

If at any time the putative father unequivocally recognized the child as his, it is legitimate and his heir at law if he has married the mother, and it makes no difference how often upon other occasions he repudiated his paternity. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

Effect of legitimation. —

The legitimation of a child puts the child on a par with children born in lawful wedlock and all the reciprocal responsibilities and duties between a father and a legitimate child obtain between him and his legitimated child. Harmon v. D'Adamo, 195 Va. 125 , 77 S.E.2d 318, 1953 Va. LEXIS 182 (1953).

Where a bastard was legitimated by former § 64.1-6, his estate was divided into two moieties, one for the maternal, the other for the paternal next of kin. Fitchett v. Smith, 78 Va. 524 , 1884 Va. LEXIS 27 (1884).

Children legitimated by former § 64.1-6 were entitled to share by inheritance in the real estate of their father on an equal basis with other children of their father. Rice v. Efford, 13 Va. (3 Hen. & M.) 225, 1808 Va. LEXIS 86 (1808); Scott v. Raub, 88 Va. 721 , 14 S.E. 178 , 1892 Va. LEXIS 24 (1892).

Legitimation after death of child. —

Where an illegitimate child married and died, leaving a legitimate child, and later the parents of the deceased married, and her father, before the father’s marriage and in the lifetime of the deceased, had recognized her as his child, and so recognized her after his marriage, which was after her death, the child of the deceased could inherit through his mother, from her father. Ash v. Way's Adm'rs, 43 Va. (2 Gratt.) 203, 1845 Va. LEXIS 35 (1845).

Father’s standing where he subsequently marries mother. —

If a father legitimates the child by marrying the mother, he stands, with respect to the question of his parental fitness, as any legitimate father. Commonwealth v. Hayes, 215 Va. 49 , 205 S.E.2d 644, 1974 Va. LEXIS 230 (1974).

As to retroactive effect of original legitimation statute, see Sleigh v. Strider, 9 Va. (5 Call) 439, 1805 Va. LEXIS 11 (1805); Rice v. Efford, 13 Va. (3 Hen. & M.) 225, 1808 Va. LEXIS 86 (1808).

Original legitimation section was not enacted in aid of the statute against seduction. It was in force nearly a century before the seduction statute was enacted and the marriage therein referred to was a voluntary marriage and not one entered into a bar a prosecution for felony. Hoover v. Hoover, 131 Va. 522 , 105 S.E. 91 , 1920 Va. LEXIS 25 (1920), different results reached on reh'g, 131 Va. 522 , 109 S.E. 424 , 1921 Va. LEXIS 43 (1921).

III.Legitimacy Though Marriage Null.

As to liberal construction of former § 64.1-7 (similar to the second paragraph), see McClaugherty v. McClaugherty, 180 Va. 51 , 21 S.E.2d 761, 1942 Va. LEXIS 145 (1942); Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

Former § 64.1-7 (similar to the second paragraph) was enacted for the benefit of the children of invalid marriages, not for the benefit of their parents. Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

A child should not be deprived of his rights because of statutes affecting the marital status of his parents. Former § 64.1-7 (similar to the second paragraph) was manifestly enacted for this purpose. Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

And parents’ knowledge that they cannot legally marry does not thwart a child’s right of inheritance. Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

Necessity for marriage. —

Former § 64.1-7 (similar to the second paragraph) required some semblance of a marriage; it did not legitimatize a child whose parents’ cohabitation was meretricious. Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

For former § 64.1-7 (similar to the second paragraph) to operate, there had to be a marriage. Vanderpool v. Ryan, 137 Va. 445 , 119 S.E. 65 , 1923 Va. LEXIS 169 (1923).

A marriage of some sort, and not an avowedly illicit affair without pretense of a marriage relationship of any kind, is required for the offspring to be legitimate. Grove v. Metropolitan Life Ins. Co., 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Former § 64.1-7 (similar to the second paragraph) did not apply to the cases where the cohabitation was a purely meretricious connection. There must have been a bona fide agreement, expressed or implied, between the parties to live together as man and wife. Francis v. Tazewell, 120 Va. 319 , 91 S.E. 202 , 1917 Va. LEXIS 110 (1917).

Former § 64.1-7 (similar to the second paragraph) did not apply where there had been no marriage of any kind. Eldred v. Eldred, 97 Va. 606 , 34 S.E. 477 , 1899 Va. LEXIS 77 (1899).

A ceremonial marriage was not required for former § 64.1-7 (similar to the second paragraph) to be applicable. Grove v. Metropolitan Life Ins. Co., 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

No celebration or ceremony is necessary. Kasey v. Richardson, 331 F. Supp. 580, 1971 U.S. Dist. LEXIS 11672 (W.D. Va. 1971), aff'd, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

But there must be an agreement, which means that there must be intent to enter a marriage. Kasey v. Richardson, 331 F. Supp. 580, 1971 U.S. Dist. LEXIS 11672 (W.D. Va. 1971), aff'd, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

For a child to obtain the benefit of former § 64.1-7 (similar to the second paragraph) in the absence of a ceremonial marriage, its parents must have agreed expressly or impliedly to live together as husband and wife, and they must have represented themselves to the community as married. Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

Legitimation of issue of common-law marriage. —

Although common-law marriages are not valid in Virginia, a child born of such a marriage was rendered legitimate by former § 64.1-7 (similar to the second paragraph) for all purposes. Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972) see also McClaugherty v. McClaugherty, 180 Va. 51 , 21 S.E.2d 761, 1942 Va. LEXIS 145 (1942); Grove v. Metropolitan Life Ins. Co., 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Effect of continued existence of first marriage. —

The continued existence of a prior marriage did not destroy the capacity to enter into a null second marriage within the meaning of former § 64.1-7 (similar to the second paragraph). Kasey v. Richardson, 462 F.2d 757, 1972 U.S. App. LEXIS 8428 (4th Cir. 1972).

Children of a bigamous marriage were legitimate under former § 64.1-7 (similar to the second paragraph). Stones v. Keeling, 9 Va. (5 Call) 143, 1804 Va. LEXIS 13 (1804); Heckert v. Hile, 90 Va. 390 , 18 S.E. 841 , 1894 Va. LEXIS 3 (1894); Heflinger v. Heflinger, 136 Va. 289 , 118 S.E. 316 , 1923 Va. LEXIS 87 (1923); McClaugherty v. McClaugherty, 180 Va. 51 , 21 S.E.2d 761, 1942 Va. LEXIS 145 (1942).

It has long been established that children of bigamous marriages, as distinguished from those born of meretricious relationships, are entitled to inherit from the father in Virginia. Grove v. United States, 170 F. Supp. 176, 1959 U.S. Dist. LEXIS 3699 (D. Va.), aff'd, 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Evidence held sufficient to show existence of a common-law marriage, which, being bigamous, was null and called former § 64.1-7 (similar to the second paragraph) into operation. Grove v. Metropolitan Life Ins. Co., 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Legitimacy of children of marriage void for insanity. —

Even if a marriage was null in law on account of the insanity of the husband and no decree of a court was necessary, former § 64.1-7 (similar to the second paragraph) would render a daughter of the parties to the marriage a legitimate child of the husband, if she was born after the marriage. Cornwall v. Cornwall, 160 Va. 183 , 168 S.E. 439 , 1933 Va. LEXIS 197 (1933).

Effect of former § 20-61.1 and related sections on court’s jurisdiction. —

The legislature did not intend by its enactment of former § 20-61.1 and related sections to impair the jurisdiction of a court of equity to determine, in a proper proceeding for the support of an infant, whether such child was “the issue” of “a null marriage” entitled to the benefits of former § 64.1-7 (similar to the second paragraph). Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 64.1-7 (similar to the second paragraph) was a statute of inheritance and entitled the issue of a marriage “deemed null in law” to inherit from either parent or collateral kin. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943).

But the right of inheritance was only one of the rights conferred by former § 64.1-7 (similar to the second paragraph) upon legitimated children. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

Former § 64.1-7 (similar to the second paragraph) was not limited to the rights of inheritance, but extended to the legitimated child all of the rights of a child born of a legal marriage for all purposes. Grove v. United States, 170 F. Supp. 176, 1959 U.S. Dist. LEXIS 3699 (D. Va.), aff'd, 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Children legitimated by former § 64.1-7 (similar to the second paragraph) were endowed with all the rights of legitimate issue for all purposes and in their relation with other persons. They were put on a par with children born in lawful wedlock. They inherited their father’s name, were his heirs apparent, and were entitled to look for and demand from him his care and protection. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

A father has the right to the custody, control and maintenance of his legitimated children to the same extent as if they were the issue of a valid marriage. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

Right to participate in recovery under Wrongful Death Act. —

A child of a bigamous marriage is entitled to participate under the Wrongful Death Act. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943); Grove v. United States, 170 F. Supp. 176, 1959 U.S. Dist. LEXIS 3699 (D. Va.), aff'd, 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

Right to proceeds of policy under Federal Employees Group Life Insurance Act. —

A “legitimate” child is a “lawful” child, and even if it were assumed that the Federal Employees Group Life Insurance Act, 5 U.S.C. § 2093, carried with it the implication that a “child” meant a “lawful child,” a child legitimated by former § 64.1-7 (similar to the second paragraph) would be entitled to the proceeds of the policy issued to its father pursuant to that act. Grove v. United States, 170 F. Supp. 176, 1959 U.S. Dist. LEXIS 3699 (D. Va.), aff'd, 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

§ 20-32. Repealed by Acts 2010, c. 352, cl. 2.

Editor’s note.

Former § 20-32 , penalizing clerks for neglect of duty, was derived from Code 1919, § 5094.

§ 20-33. Penalty for clerk issuing license contrary to law.

If any clerk of a court knowingly issue a marriage license contrary to law, he shall be confined in jail not exceeding one year, and fined not exceeding $500.

History. Code 1919, § 4541.

§§ 20-34 through 20-36. Repealed by Acts 1968, c. 318.

Cross references.

For present statute covering the subject matter of the repealed sections, see § 32.1-267 .

§ 20-37. Validation of certain marriages when license issued by clerk of county court.

All marriages of females residing within jurisdiction of a corporation court, which were solemnized prior to February 1, 1904, by virtue of a license issued by the clerk of the court of the county wherein a city was or is situated, shall be as valid as if such license had been issued by the clerk of such corporation court.

History. Code 1919, § 5073.

Editor’s note.

Chapter 5 of Title 17, providing for corporation courts in general, which are referred to in this section, was repealed by Acts 1973, c. 544. See now provisions as to circuit courts, § 17.1-500 et seq.

§ 20-37.1. Validation of certain marriages solemnized outside of Commonwealth.

All marriages heretofore solemnized outside this Commonwealth by a minister authorized to celebrate the rites of marriage in this Commonwealth, under a license issued in this Commonwealth, and showing on the application therefor the place out of this Commonwealth where said marriage is to be performed, shall be valid as if such marriage had been performed in this Commonwealth.

History. 1952, c. 133.

The number of this section was assigned by the Virginia Code Commission, the 1952 act having assigned no number.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Marriage, § 5.

CIRCUIT COURT OPINIONS

Statute only applies to marriages entered prior to passage. —

Statute only applies to marriages entered into prior to the passage of the statute in 1952; the 1952 statute constitutes a legislative recognition that legislation was required to validate pre-1952 marriages performed outside the Commonwealth, and no similar legislation addresses post-1952 marriages. Porter v. Porter, 97 Va. Cir. 81, 2017 Va. Cir. LEXIS 304 (Fairfax County Oct. 11, 2017).

“Heretofore” applies only to marriages that occurred before the statute was created. Porter v. Porter, 97 Va. Cir. 81, 2017 Va. Cir. LEXIS 304 (Fairfax County Oct. 11, 2017).

OPINIONS OF THE ATTORNEY GENERAL

Authority to perform the rites of matrimony. —

§ 20-37.2. Repealed by Acts 1977, c. 624.

Cross references.

For present provisions similar to the repealed section, see § 8.01-220 .

Chapter 3. Unlawful Marriages Generally.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.02 Marriage. Friend.

Harrison on Wills & Administration for Virginia and West Virginia (Matthew Bender). Chapter 2 Dower and Curtesy. § 2.09 Marriage. Cox.

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Bigamy, §§ 2, 3.

§ 20-38. Repealed by Acts 1975, c. 644.

Cross references.

For present provisions covering the subject matter of the repealed section, see § 20-38.1 .

§ 20-38.1. Certain marriages prohibited.

The following marriages are prohibited:

A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
A marriage between an ancestor and descendant, or between siblings, whether the relationship is by the half or the whole blood or by adoption;
A marriage between an uncle or aunt and a nephew or niece, whether the relationship is by the half or the whole blood.

History. 1975, c. 644; 1978, c. 647; 2020, c. 900.

Cross references.

For provision that the issue of marriages prohibited by law shall nevertheless be legitimate, see § 20-31.1 .

The 2020 amendments.

The 2020 amendment by c. 900 deleted the subdivision (a) designation; redesignated subdivisions (a) (1) through (a) (3) as subdivisions 1 through 3; in subdivision 2, substituted “siblings” for “a brother and a sister”; in subdivision 3, substituted “or aunt and a nephew or niece” for “and a niece or between an aunt and a nephew” and deleted “(b) [Repealed.].”

Law Review.

For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

For article, “Marriage and the State: The Withering Away of Marriage,” see 62 Va. L. Rev. 663 (1976).

CASE NOTES

This section is broader in scope than its felony counterpart. —

While the felony described in § 18.2-362 applies only to a person who, while already married, marries again, the misdemeanor described in this section is broader in scope and applies to any person, whether married or not, who enters into a marriage before the dissolution of an earlier marriage of one of the parties. Stuart v. Commonwealth, 11 Va. App. 216, 397 S.E.2d 533, 7 Va. Law Rep. 599, 1990 Va. App. LEXIS 182 (1990).

Commonwealth could choose to charge defendant with felony rather than misdemeanor. —

Attorney for the Commonwealth could choose to charge the defendant with a felony under § 18.2-362 , instead of a misdemeanor under this section; the mere fact that the defendant may also have committed a lesser offense does not preclude the Commonwealth from charging a greater offense arising out of the same act or transaction. Stuart v. Commonwealth, 11 Va. App. 216, 397 S.E.2d 533, 7 Va. Law Rep. 599, 1990 Va. App. LEXIS 182 (1990).

Second marriage following voidable but not voided marriage as bigamous and void. —

Wife’s earlier “green card” marriage in New Jersey was voidable but had never been voided by a court and, therefore, her subsequent marriage in New York was bigamous and void and she could not maintain an action of spousal support or equitable distribution. Kleinfield v. Veruki, 7 Va. App. 183, 372 S.E.2d 407, 5 Va. Law Rep. 415, 1988 Va. App. LEXIS 103 (1988).

Bigamous marriage absolutely void. —

Denial of a wife’s petition to annul a bigamous marriage was error because a bigamous marriage was absolutely void and, contrary to the trial court’s finding, a void bigamous marriage could not have been revived by corrective measures; the wife’s action in obtaining a falsified marriage certificate was not an option because, under § 20-13 , marriages in Virginia had to be solemnized. A marriage license presupposed a “marriage ceremony” solemnizing the union, and whatever formalities the ceremony required, at the very least it required the attendance of both the bride and groom. Davidson v. Davidson, 2009 Va. App. LEXIS 313 (Va. Ct. App. July 14, 2009).

No jurisdiction over appeal from dismissal of cross-bill for annulment. —

In a divorce case, an interlocutory decree dismissing appellant’s cross-bill for annulment was not appealable under § 17.1-405 , as the decree did not determine the status or validity of the parties’ marriage, award spousal support, or make an equitable distribution of marital assets, it did not “respond to the chief object” of the domestic relations dispute and did not determine “the principles that were necessary to adjudicate the cause.” Lewis v. Lewis, 271 Va. 520 , 628 S.E.2d 314, 2006 Va. LEXIS 44 (2006).

Sufficient evidence. —

Sufficient evidence supported annulment of marriage based on bigamy where the former husband testified that he went to Pakistan and investigated the former wife’s marriage, where he learned that she never divorced her prior husband; the former husband also submitted documentation from Pakistan to prove that the former wife was being charged with bigamy and a warrant for her arrest was outstanding, and an expert explained Pakistani law and how one obtains a religious and legal divorce in Pakistan; once the former wife learned about the legal process, she filed the necessary paperwork, but did so after she married the former husband. The former husband’s expert testified that Pakistani divorces were not retroactive, and the trial court found that the testimony of the former husband and his witnesses was more credible than the testimony of the former wife and her witnesses. Naseer v. Moghal, 2012 Va. App. LEXIS 259 (Va. Ct. App. Aug. 14, 2012).

OPINIONS OF THE ATTORNEY GENERAL

Void marriages. —

Virginia’s laws voiding bigamous marriages and criminalizing bigamy are constitutional; the Fourth Circuit’s decision in Bostic v. Schaefer does not invalidate §§ 18.2-362 , 18.2-363 , 20-38.1 , 20-40 , and 20-45.1 , which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. Also, bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, No. 14-073, 2014 Va. AG LEXIS 74 (12/9/14).

§ 20-39. Prohibition continues notwithstanding dissolution of previous marriage.

In the cases mentioned in § 20-38.1 , in which the relationship is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.

History. Code 1919, § 5086; 1976, c. 356.

§ 20-40. Punishment for violation of such prohibition; leaving Commonwealth to avoid.

If any person marry in violation of § 20-38.1 , he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury. If any persons, resident in the Commonwealth and within the degrees of relationship mentioned in that section, shall go out of the Commonwealth for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as a married couple, they shall be punished as provided in this section, and the marriage shall be governed by the same law as if it had been solemnized in the Commonwealth. The fact of such cohabitation here shall be evidence of such marriage. Venue for a violation of this section may be in the county or city where the subsequent marriage occurred or where the parties to the subsequent marriage cohabited.

History. Code 1919, §§ 4540, 5089; 1976, c. 356; 2003, c. 99; 2020, c. 900.

Editor’s note.

Acts 2003, c. 99, cl. 2, provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

The 2003 amendments.

The 2003 amendment by c. 99 added the last sentence.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “the Commonwealth” for “this Commonwealth” wherever it appears and “a married couple” for “man and wife” in the second sentence.

CASE NOTES

Rule that marriages valid where celebrated are valid everywhere not applicable. —

The rule which requires that “a marriage valid where celebrated is valid everywhere else” has no application to a marriage entered into in another state in contravention of the public policy and statutes of Virginia. Greenhow v. James, 80 Va. 636 , 1885 Va. LEXIS 104 (1885).

As the law of the domicile controls such marriages. —

The law of the domicile will govern in a case where the parties go into another state and get married in order to evade such law, and when they return they will be subject to all its penalties, as if such marriage had been celebrated within the state whose public law they have set at defiance. Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 1878 Va. LEXIS 102 (1878).

While the forms and ceremonies of marriage are governed by the laws of the place where the marriage is celebrated, the essentials of the contract depend upon and are governed by the laws of the country where the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 1878 Va. LEXIS 102 (1878).

Indictment. —

An indictment under the act against incestuous marriages, which charges that W.T. (the man) did unlawfully, willingly, and incestuously intermarry with N.H. (the woman), is sufficiently certain to charge her, as well as him, without requiring the converse to be charged; for he could not intermarry with her, without her intermarrying with him also. Hutchins v. Commonwealth, 4 Va. (2 Va. Cas.) 331 (1823).

OPINIONS OF THE ATTORNEY GENERAL

Void marriages. —

§§ 20-41, 20-42. Repealed by Acts 1975, c. 589.

Cross references.

For provisions covering the subject matter of the repealed sections, see §§ 18.2-362 , 18.2-364 .

§ 20-43. Bigamous marriages void without decree.

All marriages that are prohibited by law on account of either of the parties having a former spouse then living shall be absolutely void, without any decree of divorce or other legal process.

History. Code 1919, § 5087; 2020, c. 900.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “that” for “which” and “spouse” for “wife or husband.”

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

CASE NOTES

Marriage while still married to another is void ab initio. —

Where parties took part in a marriage ceremony in South Carolina and at the time of the ceremony, husband had not secured a final decree of divorce from his first wife, which he subsequently obtained, the parties’ marriage in South Carolina was void ab initio, not merely voidable. Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908, 3 Va. Law Rep. 1151, 1986 Va. App. LEXIS 376 (1986).

Bigamous marriage absolutely void. —

Denial of a wife’s petition to annul a bigamous marriage was error because, in Virginia, a marriage entered into prior to the dissolution of an earlier marriage of one of the parties was bigamous and was absolutely void; contrary to the trial court’s finding, a void bigamous marriage could not have been revived by corrective measures, and the wife’s action in obtaining a falsified marriage certificate was not an option because, under § 20-13 , marriages in Virginia had to be solemnized. A marriage license presupposed a “marriage ceremony” solemnizing the union, and whatever formalities the ceremony required, at the very least it required the attendance of both the bride and groom. Davidson v. Davidson, 2009 Va. App. LEXIS 313 (Va. Ct. App. July 14, 2009).

Court cannot decree as to alimony (now support and maintenance) in declaring bigamous marriage void. —

In a suit to annul a second marriage, because either consort had a wife or husband then living, it was held that in granting a decree of the nullity of such a marriage alimony (now support and maintenance) could not be decreed, because the statute declares such a marriage to be absolutely void, and alimony cannot be decreed if there never was a marriage. Brown v. Brown, 24 S.E. 238 (Va. Ct. App. 1896).

Plaintiff obtained a decree of a void marriage based on the knowledge that defendant was already married, so the trial court did not err in denying plaintiff an award of spousal support where plaintiff had no legal right to support. Shoustari v. Zamani, 39 Va. App. 517, 574 S.E.2d 314, 2002 Va. App. LEXIS 769 (2002).

But has jurisdiction to enter further decree concerning children. —

In declaring a marriage invalid because one party had a spouse then living, the court has jurisdiction to enter a further decree as to the care and custody of the children of the marriage, for such children are legitimated for all purposes by former § 64-7 (now § 20-31.1 ). Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

Illustrative case of void marriage. —

On an appeal from the dismissal of appellant’s claim for compensation for the death of her alleged husband, the evidence showed that claimant, under the erroneous impression that a former husband was dead, married in West Virginia. Under this section the second marriage was absolutely void, while under the former West Virginia Code, § 4701, such marriage was void only from the time it was so decreed. The fact that claimant’s second marriage was made in good faith, under a reasonable belief that her former consort was dead, might relieve her from a successful prosecution for bigamy, but would not render the void marriage valid. Hence, her claim was properly dismissed. Toler v. Oskwood Smokeless Coal Corp., 173 Va. 425 , 4 S.E.2d 364, 1939 Va. LEXIS 210 (1939).

Wife was afforded due process. —

An order declaring her marriage void ab initio was upheld, as: (1) she received both a notice and an opportunity to be heard for the judgment hearing; (2) despite her absence and choice not to attend said hearing, her counsel was present; and (3) said counsel failed to object or rebut the husband’s evidence of the wife’s prior and still existing marriage to another man. Hence, the wife’s attempt to rebut said evidence in her motion for reconsideration was properly rejected. Lwasa v. Lwasa, 2005 Va. App. LEXIS 450 (Va. Ct. App. Nov. 8, 2005).

CIRCUIT COURT OPINIONS

Court cannot decree as to support and maintenance in declaring bigamous marriage void. —

Since parties’ alleged marriage was void ab initio as husband was already married, the court did not have the authority to enforce its spousal support order to the alleged wife that it entered before it declared the alleged marriage void ab initio, and by equitable estoppel principles or otherwise, the parties’ spousal support agreement. Wallace v. Kilgore, 68 Va. Cir. 40, 2005 Va. Cir. LEXIS 54 (Spotsylvania County Feb. 24, 2005).

Circuit court has no authority to compel payment of spousal support where the parties were never married, even when the support order was entered before the circuit court declared the marriage to be void ab initio. Wallace v. Kilgore, 68 Va. Cir. 40, 2005 Va. Cir. LEXIS 54 (Spotsylvania County Feb. 24, 2005).

§ 20-44. Repealed by Acts 1975, c. 589.

Cross references.

For provisions covering the subject matter of the repealed section, see § 18.2-363 .

§ 20-45. Repealed by Acts 1975, c. 644.

Cross references.

For present provisions as to void and voidable marriages, see § 20-45.1 .

§ 20-45.1. Void and voidable marriages.

All marriages that are prohibited by § 20-38.1 are void.
All marriages solemnized when either of the parties lacked capacity to consent to the marriage at the time the marriage was solemnized, because of mental incapacity or infirmity, shall be void from the time they shall be so declared by a decree of divorce or nullity.
All marriages solemnized on or after July 1, 2016, when either or both of the parties were, at the time of the solemnization, under the age of 18 and have not been emancipated as required by § 20-48 shall be void from the time they shall be so declared by a decree of divorce or nullity. Notwithstanding the foregoing, this section shall not apply to a lawful marriage entered in another state or country prior to the parties being domiciled in the Commonwealth.

History. 1975, c. 644; 2016, cc. 457, 543.

The 2016 amendments.

The 2016 amendments by cc. 457 and 543 are identical, and substituted subsection A and B designations for “(a)” and “(b)”; rewrote subsection A, which read “All marriages which are prohibited by § 20-38.1 or where either or both of the parties are, at the time of the solemnization of the marriage, under the age of eighteen, and have not complied with the provisions of § 20-48 or § 20-49 , are void”; and added subsection C.

Law Review.

For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For note, “State Regulations Are Failing Our Children: An Analysis of Child Marriage Laws in the United States,” see 60 Wm. & Mary L. Rev. 2337 (2019).

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Bigamy, § 2.

CASE NOTES

A void marriage, unlike a voidable marriage, does not require an action of annulment to render it void. Without obtaining an annulment, a party to a void marriage is free to marry again. Conversely, a party to a voidable marriage must obtain an annulment, or any subsequent marriage is bigamous. Kleinfield v. Veruki, 7 Va. App. 183, 372 S.E.2d 407, 5 Va. Law Rep. 415, 1988 Va. App. LEXIS 103 (1988).

But second marriage following voidable but not voided marriage is void. —

Marriage of person insane at time of marriage as voidable and not void. —

If decedent was insane when his marriage was contracted, the marriage would be voidable and not void. And where no decree declaring the marriage void had been entered, it remained valid. Cornwall v. Cornwall, 160 Va. 183 , 168 S.E. 439 , 1933 Va. LEXIS 197 (1933).

Marriage under minimum legal age for marriage would have been void. —

There was sufficient evidence that defendant was not the spouse of the victims for purposes of § 18.2-67.2 as: (1) the minimum legal age for marriage, even with parental consent, was 16 under § 20-48 ; (2) at the time of the offenses, the younger victim was between four and eight; the elder was between 11 and 12; and (3) any marriage between defendant and either victim would have been void pursuant to § 20-45.1 .Haley v. Commonwealth, 2007 Va. App. LEXIS 402 (Va. Ct. App. Nov. 6, 2007).

Sham green card marriage. —

Sham green card marriage was voidable as it was not included in a list of void marriages under §§ 20-45.1 and 20-45.2 ; if the Virginia legislature had desired to deny workers’ compensation dependent benefits under § 65.2-101 to the purported spouse in sham green card marriages, they could have done so. Marblex Design Int'l, Inc. v. Stevens, 54 Va. App. 299, 678 S.E.2d 276, 2009 Va. App. LEXIS 292 (2009).

Marriage voidable. —

Parties’ purported marriage was voidable, not void, because the statute specifies what marriages were void, and the factual situation presented was not among them. MacDougall v. Levick, 65 Va. App. 223, 776 S.E.2d 456, 2015 Va. App. LEXIS 255 (2015), vacated, 66 Va. App. 50, 782 S.E.2d 182, 2016 Va. App. LEXIS 90 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Petition by emancipated minors for protective orders. —

Emancipated minor may file petitions for protective orders under applicable statutes, but emancipation requires a valid marriage. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, (01/21/11).

Void marriages. —

§§ 20-45.2, 20-45.3. Repealed by Acts 2020, cc. 75 and 195, cl. 1, and c. 900, cl. 2.

Editor’s note.

Repeals the statutory prohibitions on same-sex marriages and civil unions or other arrangements between persons of the same sex purporting to bestow the privileges and obligations of marriage. These prohibitions are no longer valid due to the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (June 26, 2015).

Former § 20-45.2 , pertaining to marriage between persons of same sex, derived from 1975, c. 644; 1997, cc. 354, 365.

Former § 20-45.3, pertaining to civil unions between persons of same sex, derived from Acts 2004, c. 983.

§§ 20-46, 20-47. Repealed by Acts 1985, c. 421.

Editor’s note.

Repealed § 20-46 was amended by Acts 1984, c. 703.

§ 20-48. Minimum age of marriage.

The minimum age at which persons may marry shall be 18, unless a minor has been emancipated by court order. Upon application for a marriage license, an emancipated minor shall provide a certified copy of the order of emancipation.

History. Code 1919, § 5090; 1932, p. 529; 1942, p. 230; 1946, p. 500; 1960, c. 363; 1972, c. 823; 1974, cc. 44, 45; 1975, c. 644; 1989, c. 733; 2008, cc. 174, 206; 2016, cc. 457, 543.

Cross references.

As to void marriages, see § 20-45.1 .

The 2008 amendments.

The 2008 amendments by cc. 174 and 206 are identical and deleted the former last paragraph, relating to clerks issuing marriage licenses or preventing marriages.

The 2016 amendments.

The 2016 amendments by cc. 457 and 543 are identical, and rewrote the first paragraph, which read “The minimum age at which persons may marry, with consent of the parent or guardian, shall be sixteen” and deleted the second paragraph pertaining to consent for marriage of a minor in the case of pregnancy.

Law Review.

For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

For note, “Exploring the Boundaries of Obergefell,” see 58 Wm. & Mary L. Rev. 2063 (2017).

For note, “State Regulations Are Failing Our Children: An Analysis of Child Marriage Laws in the United States,” see 60 Wm. & Mary L. Rev. 2337 (2019).

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Marriage, §§ 4, 7.

CASE NOTES

Marriage of minors a permissible status. —

Minors over the age of consent for marriage have the capacity to enter into the marriage relation and their marriage is a permissible status and not merely a contract between infants. Needam v. Needam, 183 Va. 681 , 33 S.E.2d 288, 1945 Va. LEXIS 214 (1945).

Marriage of persons below age of consent not absolutely void. —

Neither in this section nor in any other is there any provision declaring that marriages of persons under the age of consent are absolutely void. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40 (1943); Needam v. Needam, 183 Va. 681 , 33 S.E.2d 288 (1945). But see § 20-45.1 .

In view of the fact that the statute does not declare a marriage void which has been contracted under a license issued to persons under 21 (now 18) years of age without the consent of parents or guardians, it is apparent that a marriage between parties who were 17 and 16, respectively, was not a nullity. Payne v. Payne, 295 F. 970, 1924 U.S. App. LEXIS 3263 (D.C. Cir. 1924) (but see § 20-45.1 ).

Minimum legal age for marriage. —

OPINIONS OF THE ATTORNEY GENERAL

Petition by emancipated minors for protective orders. —

§ 20-49. Repealed by Acts 2016, cc. 457 and 543, cl. 2.

Chapter 3.1. Proceedings to Determine Parentage.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.03 Actions to Determine Parentage. Friend.

Harrison on Wills & Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.

Virginia Forms (Matthew Bender). No. 5-204 Parentage Test Order.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Illegitimate Children, §§ 2-4, 7, 11-14 , 17.

§ 20-49.1. How parent and child relationship established.

The parent and child relationship between a child and a woman may be established prima facie by proof of her having given birth to the child, or as otherwise provided in this chapter.
The parent and child relationship between a child and a man may be established by:
1. Scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Such genetic test results shall have the same legal effect as a judgment entered pursuant to § 20-49.8 .
2. A voluntary written statement of the father and mother made under oath acknowledging paternity and confirming that prior to signing the acknowledgment, the parties were provided with a written and oral description of the rights and responsibilities of acknowledging paternity and the consequences arising from a signed acknowledgment, including the right to rescind. The acknowledgement may be rescinded by either party within sixty days from the date on which it was signed unless an administrative or judicial order relating to the child in an action to which the party seeking rescission was a party is entered prior to the rescission. A written statement shall have the same legal effect as a judgment entered pursuant to § 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact. In any subsequent proceeding in which a statement acknowledging paternity is subject to challenge, the legal responsibilities of any person signing it shall not be suspended during the pendency of the proceeding, except for good cause shown. Written acknowledgments of paternity made under oath by the father and mother prior to July 1, 1990, shall have the same legal effect as a judgment entered pursuant to § 20-49.8.
3. In the absence of such acknowledgment or if the probability of paternity is less than ninety-eight percent, such relationship may be established as otherwise provided in this chapter.
The parent and child relationship between a child and an adoptive parent may be established by proof of lawful adoption.

History. 1988, cc. 866, 878; 1990, c. 836; 1992, c. 516; 1997, cc. 792, 896; 1998, c. 884.

Cross references.

As to approval of entrustment agreement, see § 16.1-277.01.

As to determination of parentage of children eligible for Temporary Assistance for Needy Families, and sanction for noncooperation of caretaker, see § 63.2-602 .

As to consent to adoption, see § 63.2-1202 .

As to explanation of process and legal effects of adoption due to acknowledged father, see § 63.2-1224 .

As to the Putative Father Registry, see § 63.2-1249 et seq.

Law Review.

For comment on the support of children born out of wedlock, see 18 Wash & Lee L. Rev. 343 (1961).

For article, “Virginia Bastardy Laws: A Burdensome Heritage,” see 9 Wm. & Mary L. Rev. 402 (1967).

For survey of Virginia Law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

For survey of Virginia Law on domestic relations for the year 1976-1977, see 63 Va. L. Rev. 1418 (1977).

For survey of development in Virginia domestic relations law for year 1979-1980, see 67 Va. L. Rev. 351 (1981).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For article, “The Evidentiary Use of HLA Blood Test in Virginia,” see 19 U. Rich. L. Rev. 235 (1985).

For 1985 survey of Virginia wills, trusts, and estates law, see 19 U. Rich L. Rev. 779 (1985).

For survey on wills, trusts, and estates in Virginia for 1989, see 23 U. Rich. L. Rev. 859 (1989).

For an article, “Domestic Relations,” see 31 U. Rich. L. Rev. 1069 (1997).

For annual survey article, see “Family Law,” 48 U. Rich. L. Rev. 135 (2013).

Research References.

Disputed Paternity Proceedings (Matthew Bender).

CASE NOTES

Editor’s note.

Some of the cases cited below were decided under former § 20-61.1 .

Constitutionality. —

The father’s failure to avail himself of the opportunity to cross-examine the expert or to provide his own expert to refute the findings did not render former §§ 20-61.1 and 20-61.2 unconstitutionally vague. Reynolds v. Stapleton, No. 1210-86-3 (Ct. of Appeals Sept. 30, 1987).

Former §§ 20-61.1 and 20-61.2 are not unconstitutionally vague and indefinite. Lawrence v. Bluford Brown, 1 Va. App. 202, 336 S.E.2d 899, 1985 Va. App. LEXIS 85 (1985).

Statutes constitute no impediment to due process. —

The statutes governing this case provide for notice, the right to be heard and to present evidence, and a fair and impartial decision; they constitute no impediment to due process. Watkins v. Commonwealth, No. 0220-89-3 (Ct. of Appeals May 15, 1990).

Construction. —

There is no requirement that a party have no knowledge that a fact might be untrue to create a mistake of fact; rather, the party must act in part upon an error, misconception, or misunderstanding. Matzuk v. Price, 70 Va. App. 474, 828 S.E.2d 252, 2019 Va. App. LEXIS 136 (2019).

Legislature intended that this section control the determination of paternity in all cases concerning a child of unwed parents. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Prior to enactment of this section, there was no recognized duty on the part of the father to support his illegitimate child. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 20-61.1 applied to both civil and criminal proceedings. It controlled the adjudication of paternity issues in all criminal or civil cases involving a child of unwed parents. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Former § 20-61.1 applied to both civil and criminal proceedings. Used in conjunction with § 20-61 , it is criminal in nature. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 20-61.1 , which allows a court to enforce a judgment for the support of an illegitimate child, applies to both civil and criminal proceedings. Lawrence v. Bluford Brown, 1 Va. App. 202, 336 S.E.2d 899, 1985 Va. App. LEXIS 85 (1985).

Former § 20-61.1 was limited to the support of a child “whose parents are not married.” Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 20-61.1 expressly applied to proceedings instituted under Chapter 5 (§ 20-61 et seq.) of Title 20 dealing with desertion and nonsupport and is designed to require support of children of “unwed parents by the father.” Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

In former § 20-61.1 the legislature was referring to and providing for the support of the offspring of a meretricious union between a man and a woman. Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 20-61.1 was not applicable to the support of children of a marriage which, though solemnized, is void and thus does not provided the only means by which paternity may be established in such a case. Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

The legislature did not intend by its enactment of former § 20-61.1 and related sections to impair the jurisdiction of a court of equity to determine in a proper proceeding for the support of an infant, whether such child is “the issue” of “a null marriage” entitled to the benefits of former § 64.1-7 [now second paragraph of § 20-31.1 ]. Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Former § 20-61.1 required strict and limited proof of paternity to protect a man from a specious claim of fatherhood made by a woman who has not entered into a marriage relationship with the man. Brown v. Commonwealth ex rel. Custis, 218 Va. 40 , 235 S.E.2d 325, 1977 Va. LEXIS 169 (1977), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

The evidentiary requirements of former § 20-61.1 do not apply to the Workers’ Compensation Act. Allstate Messenger Serv. v. James, 220 Va. 910 , 216 S.E.2d 86 (1980).

Right to litigate paternity issue. —

Although a man may acknowledge paternity under oath, or even though the results of a blood test may show a 98 percent probability of paternity, a putative father cannot be deprived of the right to have the issue of paternity litigated. Dunbar v. Hogan, 16 Va. App. 653, 432 S.E.2d 16, 9 Va. Law Rep. 1609, 1993 Va. App. LEXIS 218 (1993).

Trial court — in a paternity action filed by a known sperm donor pursuant to § 20-49.2 , who was acknowledged under oath by the biological and gestational mother, to whom the donor was never married, to be the biological father of the child at issue — erred in sustaining pleas in bar to the sperm donor’s petition to determine parentage of the child conceived as a result of assisted conception in that subdivision B 2 of § 20-49.1 and subdivision A 3 of § 20-158 did not bar the parentage action on the basis, pursuant to subsection D of § 32.1-257 , that the parties cohabited, but never married. Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482, 2011 Va. App. LEXIS 414 (2011), aff'd, 285 Va. 163 , 736 S.E.2d 711, 2013 Va. LEXIS 4 (2013).

Trial court erred in dismissing a petition to determine parentage filed by the child’s biological father, as subdivision A 3 of § 20-158 and subsection D of § 32.1-257 did bar an unmarried, biological father from establishing legal parentage of his child conceived through assisted conception, pursuant to a voluntary written agreement as authorized by subdivision B 2 of § 20-49.1 .L.F. v. Breit, 285 Va. 163 , 736 S.E.2d 711, 2013 Va. LEXIS 4 (2013).

Burden of proof in a paternity action. —

The statutory provisions establishing the burden of proof in a paternity proceeding as set forth in § 20-49.4 are procedural provisions. Accordingly, the trial court did not err in determining the defendant’s paternity in accordance with the clear and convincing standard set forth in § 20-49.4 , the standard in effect on the date of trial. Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 397 S.E.2d 412, 7 Va. Law Rep. 635, 1990 Va. App. LEXIS 184 (1990).

Because the record established that there was no fraud, duress, or material mistake of fact in the voluntary acknowledgment of paternity executed by the mother and her boyfriend under subdivision 2 of § 20-49.1 , the acknowledgment was binding and conclusive. Thus, the trial court erred in a custody case in requiring the boyfriend to prove that he was the child’s father and in allowing the mother to rely on genetic testing under § 20-49.1 0 to obtain relief from the judgment of paternity. Wooddell v. Lagerquist, 2012 Va. App. LEXIS 374 (Va. Ct. App. Nov. 20, 2012).

Father was entitled to visitation because the father established through DNA testing that the father was the child’s biological father. Bruce v. Boardwine, 64 Va. App. 623, 770 S.E.2d 774, 2015 Va. App. LEXIS 137 (2015).

Acknowledgment of paternity binding and conclusive. —

Plain language of subdivision B 2 of § 20-49.1 states that a voluntary written statement of paternity executed pursuant to that statute shall have the same legal effect as a judgment entered pursuant to § 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact. Wooddell v. Lagerquist, 2012 Va. App. LEXIS 374 (Va. Ct. App. Nov. 20, 2012).

Circuit court erred in finding that a purported father was a parent of the subject child and awarding joint legal custody and visitation to him because, while the purported father and the mother statutorily acknowledged his paternity, a DNA test confirmed that another man was, in fact, the child’s biological father, conclusively established that the purported father’s claim in the acknowledgement of paternity represented “a material mistake of fact,” and required the circuit court to reject his claim to be the child’s parent. Bedell v. Price, 70 Va. App. 497, 828 S.E.2d 263, 2019 Va. App. LEXIS 138 (2019).

Material mistake of fact. —

Circuit court did not err in finding that the voluntary acknowledgment of paternity was a result of a material mistake of fact; appellant affirmed on the voluntary acknowledgment of paternity that he was the natural parent of the child, but he was not certain at the time, and later the parties learned definitively through genetic testing that appellant was not the biological father. The voluntary acknowledgement was a result of a material mistake of fact. Matzuk v. Price, 70 Va. App. 474, 828 S.E.2d 252, 2019 Va. App. LEXIS 136 (2019).

Interpretation of § 20-49.10 must be harmonious with binding effect of acknowledgment. —

Section 20-49.1 0, which concerns relief from legal determinations of paternity based on scientifically reliable genetic testing, must be interpreted in a manner that is harmonious with the “binding and conclusive” effect given to a voluntary statement of paternity that does not result from fraud, duress, or a material mistake of fact under subdivision B 2 of § 20-49.1 .Wooddell v. Lagerquist, 2012 Va. App. LEXIS 374 (Va. Ct. App. Nov. 20, 2012).

As to admission of paternity in writing, under oath, see Distefano v. Commonwealth, 201 Va. 23 , 109 S.E.2d 497, 1959 Va. LEXIS 188 (1959).

Genetic blood grouping test is not unconstitutional. —

The genetic blood grouping test required in a paternity case did not violate the appellant’s privilege against self-incrimination. Lawrence v. Bluford Brown, 1 Va. App. 202, 336 S.E.2d 899, 1985 Va. App. LEXIS 85 (1985).

Paternity may be proved by blood grouping test. —

Former § 20-61.1 , allows blood grouping tests to be used affirmatively to prove paternity. Lawrence v. Bluford Brown, 1 Va. App. 202, 336 S.E.2d 899, 1985 Va. App. LEXIS 85 (1985); Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 397 S.E.2d 412, 7 Va. Law Rep. 635, 1990 Va. App. LEXIS 184 (1990).

Necessity of expert testimony showing tests were properly conducted. —

The provisions of § 20-49.3 , in effect when the finding of the trial court was made, did not eliminate the necessity of expert testimony showing that the tests were properly conducted. For that reason, report was improperly admitted and could not constitute a basis for finding more than a 98% probability that appellant was the child’s father. Thus, subsection (B) of this section was not a factor to be considered by the court. Nelson v. Ajayi, No. 0665-91-4 (Ct. of Appeals Sept. 29, 1992) (decided prior to the 1992 amendment to § 20-49.3 ).

Proceeding only under former § 20-61.1 was civil. —

When a party seeking a support judgment proceeds only under the provisions of this section, the proceeding is civil. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Civil proceeding for support of illegitimate children. —

By its terms, former § 20-61.1 also permitted a court to enter and enforce a judgment of support on behalf of an illegitimate child. Thus, civil proceedings for the support of illegitimate children could be brought under the provisions of that section. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Former § 20-61.1 became criminal in nature when employed in conjunction with a § 20-61 proceeding. The section in itself, however, was not criminal in that it provided no penalty or punishment. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Defendant not put in jeopardy by civil proceeding. —

Because a civil support proceeding brought pursuant to former § 20-61.1 , standing alone, could not subject defendant to a criminal conviction or criminal sanctions, he had not been put in jeopardy. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Standard of proof of paternity beyond a reasonable doubt imposed in former § 20-61.1 applied to civil as well as criminal proceedings. The rigorous standard of proof of paternity protected the putative father against fraudulent claims, but did not render the section criminal or quasi-criminal in nature. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

As to appeal by petitioner in civil support proceeding from adverse paternity determination, see Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Section 20-68 inapplicable to civil proceeding under former § 20-61.1 . —

By its terms, § 20-68 applies only to criminal proceedings brought under Chapter 5 (§ 20-61 et seq.) of Title 20. The section is limited to the “person accused,” a criminal defendant. The appeal authorized by § 20-68 is from a “judgment of conviction,” a criminal judgment. Thus, § 20-68 had no application to a civil proceeding under former § 20-61.1 . Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Evidence sufficient to carry burden seeking firemen’s retirement fund benefits for father’s death. —

Evidence concerning natural father’s acknowledgment of paternity to a number of disinterested mothers, including his own mother and an attorney whom he consulted about having the child’s name changed, coupled with other evidence showing his treatment of the child as his own, was more than sufficient to carry child’s burden of proof by a preponderance of the evidence in proceeding seeking benefits under firemen’s retirement fund for father’s death. Marks v. Sanzo, 231 Va. 350 , 345 S.E.2d 263, 1986 Va. LEXIS 201 (1986).

Denial of further testing not abuse of discretion. —

Where a blood test of the child indicated that there was a 99.87% certainty that child was the plaintiff’s son, and, because the defendant testified that the child belonged to her and the plaintiff, and there was little, if any, evidence of adultery committed by the defendant, the denial of the plaintiff’s motion for further testing was not an abuse of discretion. Taylor v. Taylor, 1995 Va. App. LEXIS 51 (Va. Ct. App. Jan. 17, 1995).

Acknowledgment of paternity required under this section. —

Because the parties had not executed an acknowledgment of paternity this section did not apply. Commonwealth, Dep't of Social Servs. ex rel. Comptroller of Va. v. Flaneary, 22 Va. App. 293, 469 S.E.2d 79, 1996 Va. App. LEXIS 273 (1996).

CIRCUIT COURT OPINIONS

Acknowledgment of paternity. —

Execution of an acknowledgment of paternity pursuant to subdivision B 2 provided an exception to the general rule regarding no obligation of support for non-biological children. In re Angle, 54 Va. Cir. 455, 2001 Va. Cir. LEXIS 201 (Alleghany County Jan. 31, 2001).

Right to litigate paternity issue. —

Amended language providing that a written acknowledgment of paternity was binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement established that the statement resulted from fraud, duress, or a material mistake of fact, did not invalidate the holding of Dunbar v. Hogan, 16 Va. App. 653, 432 S.E.2d 16 (1993), that a putative father who signed a written acknowledgment of paternity was not precluded from contesting paternity in a subsequent judicial proceeding. In re Cooper-Loney, 56 Va. Cir. 67, 2001 Va. Cir. LEXIS 441 (Richmond Mar. 13, 2001).

Sufficient proof of paternity following artificial insemination. —

Father established paternity of a child, when the child’s mother artificially inseminated herself with the father’s sperm without a physician’s assistance and the father provided the sperm at the mother’s request, because § 20-158 was not applicable and the father provided sufficient genetic testing to establish paternity under § 20-49.1 .Boardwine v. Bruce, 88 Va. Cir. 218, 2014 Va. Cir. LEXIS 16 (Roanoke May 6, 2014), aff'd, 64 Va. App. 623, 770 S.E.2d 774, 2015 Va. App. LEXIS 137 (2015).

§ 20-49.2. Commencement of action; parties; jurisdiction.

Proceedings under this chapter may be instituted upon petition, verified by oath or affirmation, filed by a child, a parent, a person claiming parentage, a person standing in loco parentis to the child or having legal custody of the child or a representative of the Department of Social Services or the Department of Juvenile Justice.

The child may be made a party to the action, and if he is a minor and is made a party, he shall be represented by a guardian ad litem appointed by the court in accordance with the procedures specified in § 16.1-266 or § 8.01-9 . The child’s mother or father may not represent the child as guardian or otherwise. The determination of the court under the provisions of this chapter shall not be binding on any person who is not a party.

The circuit courts shall have concurrent original jurisdiction of cases arising under this chapter with the juvenile and domestic relations district courts when the parentage of a child is at issue in any matter otherwise before the circuit court. The determination of parentage, when raised in any proceeding, shall be governed by this chapter.

History. 1988, cc. 866, 878; 1989, c. 368; 2008, cc. 164, 201.

Editor’s note.

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

The 2008 amendments.

The 2008 amendments by cc. 164 and 201 are identical and rewrote the last paragraph.

CASE NOTES

Statutes constitute no impediment to due process. —

The strong public policy of this Commonwealth posits that the paramount concern where children are concerned is their best interest and this public policy would be thwarted if a child were bound by a paternity determination in which the child’s independent rights and interests were not adequately protected. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

Child must be a party to paternity action. —

With the enactment of this section, statutory law makes it clear that a child must be made a party to a paternity action if he or she is to be bound by a determination of paternity. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

By requiring that a child be made a party to the action to be bound by its results, the integrity of the fact finding process is enhanced and the rights and interests of the child, which are paramount, are protected. The putative father, to ensure that he would not be subject to relitigation of the paternity issue, could have joined the child under Rule 3:9A [see now Rule 3:12], and may now join the child as a necessary party under this section. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

The child has a fundamental right, not shared by the mother, to establish the father-child relationship, and in exercising that right there clearly is potential for conflict between the mother’s interest and the child’s interest. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

Where a child is not made a party and not represented by an independent guardian ad litem, the child has no control over the litigation, and the integrity of the fact finding process may suffer. The child not a party and not adequately represented may not receive his or her day in court, and the fundamental due process right to be heard may be abridged. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

Division was proper party to move that father submit to tests. —

The Division of Child Support Enforcement was a proper party to move that father be required to submit to the tests; this section authorizes the institution of support proceedings by a representative of the Department of Social Services, and the Division of Child Support Enforcement is an agency of that department. Watkins v. Commonwealth, No. 0220-89-3 (Ct. of Appeals May 15, 1990).

The duty of support of all children is owed to the child, not the mother. —

The amount of the support is based primarily on the needs of the child and the ability of the father to provide, not the needs of the mother. Thus, the mother does not have the same legal right as the child in seeking child support; rather, the right is solely that of the child and the mother simply has the right to act as a conduit for the payments of support to the child. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

In addition to support rights during minority, the child has other individual and independent rights that may be derivative of the establishment of paternity, such as the right to inherit from his or her father pursuant to the provisions of § 64.1-5.2. The mother has no corollary right and, in this regard, the interest and rights of the child and mother are clearly distinct. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

Petition for determination of paternity in assisted parentage. —

Trial court, in a paternity action filed by a known sperm donor pursuant to § 20-49.2 , who was acknowledged under oath by the biological and gestational mother, to whom the donor was never married, to be the biological father of the child at issue, erred in sustaining pleas in bar to the sperm donor’s petition to determine parentage of the child conceived as a result of assisted conception in that subdivision B 2 of § 20-49.1 and subdivision A 3 of § 20-158 did not bar the parentage action on the basis, pursuant to subsection D of § 32.1-257 , that the parties cohabited, but never married. Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482, 2011 Va. App. LEXIS 414 (2011), aff'd, 285 Va. 163 , 736 S.E.2d 711, 2013 Va. LEXIS 4 (2013).

Circuit court has subject matter jurisdiction to determine parentage in domestic assault cases. —

Florida circuit court does not err in exercising subject matter jurisdiction to determine parentage for purposes of adjudicating a defendant’s guilt on charges of felony domestic assault, whether or not other proceedings involving a determination of parentage are then pending in the juvenile and domestic relations district court. Graves v. Commonwealth, 2007 Va. App. LEXIS 63 (Va. Ct. App. Feb. 20, 2007).

Petition for determination of paternity barred by res judicata. —

Circuit court did not err in dismissing a mother’s petition against a father and an adoptee for determination of paternity pursuant to § 20-49.2 and declaratory relief pursuant to the Declaratory Judgment Act, § 8.01-184 , because the mother’s action was barred by res judicata; a juvenile and domestic relations court had entered an order granting joint custody of a child to the adoptee and the mother, and the mother was precluded by res judicata from seeking a difference in outcome or restoration of the place that she was before the custody order; because the mother did not seek to modify the custody order under § 20-108 but rather sought to relitigate the custody decision, her action was barred by res judicata. Morgan v. Kifus, 2011 Va. App. LEXIS 126 (Va. Ct. App. Apr. 12, 2011).

§ 20-49.3. Admission of genetic tests.

In the trial of any matter in any court in which the question of parentage arises, the court, upon its own motion or upon motion of either party, may and, in cases in which child support is in issue, shall direct and order that the alleged parents and the child submit to scientifically reliable genetic tests including blood tests. The motion of a party shall be accompanied by a sworn statement either (i) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or (ii) denying paternity.
The court shall require the person requesting such genetic test, including a blood test, to pay the cost. However, if such person is indigent, the Commonwealth shall pay for the test. The court may, in its discretion, assess the costs of the test to the party or parties determined to be the parent or parents.
The results of a scientifically reliable genetic test, including a blood test, may be admitted in evidence when contained in a written report prepared and sworn to by a duly qualified expert, provided the written results are filed with the clerk of the court hearing the case at least fifteen days prior to the hearing or trial. Verified documentary evidence of the chain of custody of the blood specimens is competent evidence to establish the chain of custody. Any qualified expert performing such test outside the Commonwealth shall consent to service of process through the Secretary of the Commonwealth by filing with the clerk of the court the written results. Upon motion of any party in interest, the court may require the person making the analysis to appear as a witness and be subject to cross-examination, provided that the motion is made at least seven days prior to the hearing or trial. The court may require the person making the motion to pay into court the anticipated costs and fees of the witness or adequate security for such costs and fees.

History. 1988, cc. 866, 878; 1989, c. 598; 1992, c. 516; 1997, cc. 792, 896.

Cross references.

As to the Putative Father Registry, see § 63.2-1249 et seq.

Law Review.

For article, “The Evidentiary use of the HLA Blood Test in Virginia,” see 19 U. Rich. L. Rev. 235 (1985).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 31.

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under former § 20-61.2.

Constitutionality. —

Former §§ 20-61.1 and 20-61.2 are not unconstitutionally vague and indefinite. Lawrence v. Bluford Brown, 1 Va. App. 202, 336 S.E.2d 899, 1985 Va. App. LEXIS 85 (1985).

Statutes constitute no impediment to due process. —

Applicable to civil and criminal proceedings. —

This section remains by its language applicable to civil as well as criminal proceedings. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Legislature’s later modification of statute did not allow resurrection of issue. —

The legislature’s later modification of the statute to allow for blood tests in all cases where child support is an issue did not entitle defendant to resurrect the issue previously decided. Bunch v. Department of Social Servs. ex rel. Petrosky, No. 1623-89-1 (Ct. of Appeals July 17, 1990).

Chain of custody. —

The failure to call the courier to testify did not create a missing vital link in the chain of possession, where the procedures employed negated any substantial probability that the blood samples had been altered, substituted, or tampered with during transit, thereby sufficiently accounting for that link. Dotson v. Petty, 4 Va. App. 357, 358 S.E.2d 403, 4 Va. Law Rep. 10, 1987 Va. App. LEXIS 189 (1987).

The party offering the results of blood tests must establish with reasonable certainty that there has been no alteration or substitution of the blood. Dotson v. Petty, 4 Va. App. 357, 358 S.E.2d 403, 4 Va. Law Rep. 10, 1987 Va. App. LEXIS 189 (1987).

The test results are admissible upon being offered by a properly qualified expert without testimonial identification of the blood sample by the person who took the blood. Commonwealth ex rel. Evans v. Harrison, 5 Va. App. 8, 360 S.E.2d 212, 4 Va. Law Rep. 351, 1987 Va. App. LEXIS 264 (1987).

Where the blood samples from the hospital arrived at the laboratory in Burlington, North Carolina, within two days, a period not unusual under the circumstances, the foundation for the admission of this evidence was not undermined. Harris v. Graves, No. 0389-85 (Ct. of Appeals Dec. 4, 1986).

Where the blood samples were labeled, packaged, sealed, and properly addressed according to established procedure when they left the hospital, the sealed package in which the blood samples were placed was unique and identifiable, and the sealed package containing the blood samples arrived intact at the laboratory in Burlington, North Carolina, the identification of the sealed package, prepared for mailing in accordance with established procedures provided the requisite “reasonable certainty” that the blood samples were neither altered nor substituted during the period after their removal from desk of a hospital employee and before their arrival at the laboratory. Harris v. Graves, No. 0389-85 (Ct. of Appeals Dec. 4, 1986).

Where there is no evidence that the package was tampered with, the mere fact that an unidentified courier carried the package from the hospital to a laboratory in Burlington, North Carolina, did not undermine the required foundation that the proponent of the evidence must establish reasonable certainty that the blood samples were neither altered nor substituted. Harris v. Graves, No. 0389-85 (Ct. of Appeals Dec. 4, 1986).

Admission of expert’s opinion concerning test results. —

When read together, § 8.01-401.1 and former § 20-61.2 would allow the admission of the results of human leukocyte antigen blood tests and a properly qualified expert’s opinion concerning the results; once the expert has testified that the blood samples tested were those of the parties involved, that his or her conclusion is based upon facts, circumstances or data made known to or perceived by him or her and normally relied upon by others in that field of expertise, the test results and the expert opinion are prima facie admissible. Commonwealth ex rel. Evans v. Harrison, 5 Va. App. 8, 360 S.E.2d 212, 4 Va. Law Rep. 351, 1987 Va. App. LEXIS 264 (1987).

A party opposing the admissibility of the test results may attempt to establish, by independent evidence or cross-examination of the expert, that experts in the field do not normally rely on data of the type relied upon the expert in framing his or her opinion, or the opponent of the evidence may also seek to establish, by independent evidence or upon cross-examination, that the blood samples upon which the opinion is based, were not, in fact, those of the parties involved. If either or these factors is not established and reasonable persons would not differ over their conclusion, the trial court should refuse to admit evidence of the test results or, if already admitted, should strike that evidence and instruct the jury to disregard it; on the other hand, if the evidence of both of these factors is such that reasonable men would differ, this affects the weight of the evidence and should be resolved by the fact finder. Commonwealth ex rel. Evans v. Harrison, 5 Va. App. 8, 360 S.E.2d 212, 4 Va. Law Rep. 351, 1987 Va. App. LEXIS 264 (1987).

Necessity of expert testimony showing tests were properly conducted. —

The provisions of this section, in effect when the finding of the trial court was made, did not eliminate the necessity of expert testimony showing that the tests were properly conducted. For that reason, report was improperly admitted and could not constitute a basis for finding more than a 98% probability that appellant was the child’s father. Thus, subsection B of § 20-49.1 was not a factor to be considered by the court. Nelson v. Ajayi, No. 0665-91-4 (Ct. of Appeals Sept. 29, 1992) (decided prior to the 1992 amendment).

Spencer v. Commonwealth , 238 Va. 275 , 384 S.E.2d 775 (1989), did not hold that DNA tests are permitted by this section, and in the absence of proof to the contrary, expert opinions must be personally expressed by an expert and subjected to in-court cross-examination. If an exception to that rule exists, the burden is on the proponent to prove admissibility of the opinion by such exception. Nelson v. Ajayi, No. 0665-91-4 (Ct. of Appeals Sept. 29, 1992) (decided prior to the 1992 amendment).

CIRCUIT COURT OPINIONS

Deceased child. —

Putative father was not subject to scientific testing under subsection A of § 20-49.3 , where there were no financial or economic considerations and the social stigma of illegitimacy was lacking, because the child was deceased. Codynah v. Mullen, 60 Va. Cir. 446, 2003 Va. Cir. LEXIS 1 (Spotsylvania County Jan. 6, 2003).

§ 20-49.4. Evidence relating to parentage.

The standard of proof in any action to establish parentage shall be by clear and convincing evidence. All relevant evidence on the issue of paternity shall be admissible. Such evidence may include, but shall not be limited to, the following:

Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception;
Medical or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts. If a person has been identified by the mother as the putative father of the child, the court may, and upon request of a party shall, require the child, the known parent, and the alleged parent to submit to appropriate tests;
The results of scientifically reliable genetic tests, including blood tests, if available, weighted with all the evidence;
Evidence of the alleged parent consenting to or acknowledging, by a general course of conduct, the common use of such parent’s surname by the child;
Evidence of the alleged parent claiming the child as his child on any statement, tax return or other document filed by him with any state, local or federal government or any agency thereof;
A true copy of an acknowledgment pursuant to § 20-49.5 ; and
An admission by a male between the ages of fourteen and eighteen pursuant to § 20-49.6 .

History. 1988, cc. 866, 878; 1992, c. 516.

CASE NOTES

Burden of proof in paternity action. —

The statutory provisions establishing the burden of proof in a paternity proceeding as set forth in this section are procedural provisions. Accordingly, the trial court did not err in determining the defendant’s paternity in accordance with the clear and convincing standard set forth in this section, the standard in effect on the date of trial. Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 397 S.E.2d 412, 7 Va. Law Rep. 635, 1990 Va. App. LEXIS 184 (1990).

Evidence sufficient to rebut presumption of legitimacy. —

Where the husband’s evidence consisted of the human leukocyte antigen test results which conclusively disproved paternity and the wife’s admission that she had sexual intercourse with another man during a previous separation, this evidence was sufficient to rebut the presumption of legitimacy. NPA v. WBA, 8 Va. App. 246, 380 S.E.2d 178, 5 Va. Law Rep. 2586, 1989 Va. App. LEXIS 58 (1989).

Although this section does not specifically set forth a standard of proof sufficient to overcome the presumption of legitimacy, it does state that clear and convincing evidence is the standard of proof in any action to establish parentage; therefore, the trial court, using the clear and convincing standard, did not err in determining that the evidence before it was sufficient to overcome the presumption of legitimacy. Wyatt v. Virginia Dep't of Social Servs., 11 Va. App. 225, 397 S.E.2d 412, 7 Va. Law Rep. 635, 1990 Va. App. LEXIS 184 (1990).

Section applicable where no voluntary acknowledgment. —

This section applies in contested judicial proceedings, as in this case, to establish paternity where no voluntary acknowledgment exists, or where the genetic testing reports less than 98% probability of paternity. Commonwealth, Dep't of Social Servs. ex rel. Comptroller of Va. v. Flaneary, 22 Va. App. 293, 469 S.E.2d 79, 1996 Va. App. LEXIS 273 (1996).

CIRCUIT COURT OPINIONS

Paternity established through proof of parents’ intention. —

Father established that he was the legal father of a child, when the child’s mother artificially inseminated herself with the father’s sperm, because clear and convincing evidence showed that the father and the mother intended for the father to be the child’s parent. Boardwine v. Bruce, 88 Va. Cir. 218, 2014 Va. Cir. LEXIS 16 (Roanoke May 6, 2014), aff'd, 64 Va. App. 623, 770 S.E.2d 774, 2015 Va. App. LEXIS 137 (2015).

§ 20-49.5. Support of children of unwed parents by the father; testimony under oath.

Whenever in any legal proceedings a man voluntarily testifies under oath or affirmation that he is the father of a child whose parents are not married, or are not married to each other, the court may require that he complete an acknowledgment of paternity on a form provided by the Department of Social Services. This acknowledgment shall be sent by the clerk of the court within thirty days of completion to the Department of Social Services.

In any proceeding under this chapter, the petitioner may request a true copy of this form from the Department of Social Services and the Department shall remit such form to the court where the petition has been filed. Such true copy of an acknowledgment of paternity shall then be admissible in any proceeding under this chapter.

History. 1988, cc. 866, 878.

§ 20-49.6. Proceedings to establish paternity or enforce support obligations of males between the ages of fourteen and eighteen.

In any proceeding to establish or enforce an obligation for support and maintenance of a child of unwed parents, a male between the ages of fourteen and eighteen who is represented by a guardian ad litem pursuant to § 8.01-9 and who has not otherwise been emancipated shall not be deemed to be under a disability as provided in § 8.01-2 . The court may enter an order establishing the paternity of the child based upon an admission of paternity by such male made under oath before the court or upon such other evidence as may be sufficient in law to support a finding of paternity. The order may provide for support and maintenance of the child by the father and shall be enforceable as if the father were an adult.

History. 1988, cc. 866, 878.

§ 20-49.7. Civil actions.

An action brought under this chapter is a civil action. The natural parent and the alleged parent are competent to testify. Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth shall not be privileged. Bills for expenses incurred for pregnancy, childbirth and genetic testing shall be admissible as prima facie evidence of the facts stated therein, without requiring third-party foundation testimony if the party offering such evidence is under oath.

History. 1988, cc. 866, 878; 1997, cc. 792, 896.

§ 20-49.8. Judgment or order; costs; birth record.

A judgment or order establishing parentage may include any provision directed against the appropriate party to the proceeding, concerning the duty of support, including an equitable apportionment of the expenses incurred on behalf of the child from the date the proceeding under this chapter was filed with the court against the alleged parent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.2 and directing payment of support was delivered to the sheriff or process server for service upon the obligor. The judgment or order may be in favor of the natural parent or any other person or agency who incurred such expenses provided the complainant exercised due diligence in the service of the respondent. The judgment or order may also include provisions for the custody and guardianship of the child, visitation privileges with the child, or any other matter in the best interest of the child. In circumstances where the parent is outside the jurisdiction of the court, the court may enter a further order requiring the furnishing of bond or other security for the payment required by the judgment or order. The judgment or order may direct either party to pay the reasonable and necessary unpaid expenses of the mother’s pregnancy and delivery or equitably apportion the unpaid expenses between the parties. However, when the Commonwealth, through the Medicaid program, has paid such expenses, the court may order reimbursement to the Commonwealth for such expenses.
A determination of paternity made by any other state shall be given full faith and credit, whether established through voluntary acknowledgment or through administrative or judicial process; provided, however, that, except as may otherwise be required by law, such full faith and credit shall be given only for the purposes of establishing a duty to make payments of support and other payments contemplated by subsection A.
For each court determination of parentage made under the provisions of this chapter, a certified copy of the order or judgment shall be transmitted to the State Registrar of Vital Records by the clerk of the court within thirty days after the order becomes final. Such order shall set forth the full name and date and place of birth of the person whose parentage has been determined, the full names of both parents, including the maiden name, if any, of the mother and the name and address of an informant who can furnish the information necessary to complete a new birth record. In addition, when the State Registrar receives a document signed by a man indicating his consent to submit to scientifically reliable genetic tests, including blood tests, to determine paternity and the genetic test results affirming at least a ninety-eight percent probability of paternity, a new birth record shall be completed as provided in § 32.1-261 . When the State Registrar receives a copy of a judgment or order for a person born outside of this Commonwealth, such order shall be forwarded to the appropriate registration authority in the state of birth or the appropriate federal agency.

History. 1988, cc. 866, 878; 1990, c. 615; 1992, c. 867; 1994, c. 869; 1996, c. 491; 1998, c. 592.

Cross references.

As to approval of entrustment agreement, see § 16.1-277.01.

As to name of father on birth certificates, see § 32.1-257 .

As to consent to adoption, see § 63.2-1202 .

As to execution of entrustment agreement by birth parents, see § 63.2-1222 .

As to Putative Father Registration, see § 63.2-1250 .

As to administrative establishment of paternity, see § 63.2-1913 .

Editor’s note.

Effective October 1, 2002, “Title 63.2” was substituted for “Title 63.1” to conform to the recodification of that title by Acts 2002, c. 747.

CASE NOTES

Right to litigate paternity issue. —

Although a man may acknowledge paternity under oath, or even though the results of a blood test may show a 98% probability of paternity, a putative father cannot be deprived of the right to have the issue of paternity litigated. Dunbar v. Hogan, 16 Va. App. 653, 432 S.E.2d 16, 9 Va. Law Rep. 1609, 1993 Va. App. LEXIS 218 (1993).

Putative father may contest paternity issued where no judgment has been entered. —

Where no judgment or order establishing parentage has been entered based on the sworn Declaration of Paternity or on blood test results, there has been no judicial determination of the fact or issue of paternity and putative father may contest that issue in the support proceedings. Dunbar v. Hogan, 16 Va. App. 653, 432 S.E.2d 16, 9 Va. Law Rep. 1609, 1993 Va. App. LEXIS 218 (1993).

Necessity for verification of identity and employment. —

Because the true identity of a party became a substantial issue in the instant case, the trial court erred in refusing to require declared father of appellant’s child to verify two relevant and material facts, his identity and his employment. Myers v. Brolin, 1995 Va. App. LEXIS 560 (Va. Ct. App. July 5, 1995).

§ 20-49.9. Repealed by Acts 2002, c. 747, cl. 10, effective October 1, 2002.

Cross references.

For current provisions, as to the legal effect in administrative paternity proceedings of a genetic test result affirming at least a 98% probability of paternity, see § 63.2-1913 .

For hospital paternity establishment programs, see § 63.2-1914 .

§ 20-49.10. Relief from legal determination of paternity.

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The petitioner shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

History. 2001, c. 814.

Law Review.

For article, “Gender Bias Task Force: Comments on Family Law Issues,” see 58 Wash. & Lee L. Rev. 1089 (2001).

For article, “Family Law,” see 35 U. Rich. L. Rev. 651 (2001).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Illegitimate Children, § 19.

CASE NOTES

Interpretation of this statute must be harmonious with § 20-49.1 . —

This section, which concerns relief from legal determinations of paternity based on scientifically reliable genetic testing, must be interpreted in a manner that is harmonious with the “binding and conclusive” effect given to a voluntary statement of paternity that does not result from fraud, duress, or a material mistake of fact under subdivision 2 of § 20-49.1 .Wooddell v. Lagerquist, 2012 Va. App. LEXIS 374 (Va. Ct. App. Nov. 20, 2012).

Acknowledgment of paternity binding and conclusive. —

Disestablishment of paternity. —

Evidence demonstrated that the parties did not know definitively that the man was not the father at the time he signed the acknowledgment of paternity, and while did not challenge the finding that disestablishment of paternity was warranted, it was clear that the circuit court did not err in this determination. Matzuk v. Price, 70 Va. App. 474, 828 S.E.2d 252, 2019 Va. App. LEXIS 136 (2019).

Child support. —

Although a paternity test revealed that father was not the biological father, the trial court properly denied his petition to reduce child support, since he had had adequate notice but failed to appear for blood tests and a show cause hearing. Lucas v. Commonwealth ex rel. Becks, 2001 Va. App. LEXIS 440 (Va. Ct. App. July 24, 2001).

CIRCUIT COURT OPINIONS

Child support. —

Support orders entered against the father were vacated as of February 28, 2003, the date the mother was served with the current motion, because, even though no support order could be retroactively modified, a support order could be modified for any period during which there was a pending petition for relief from a determination of paternity. Vaughn v. Cherry, 62 Va. Cir. 446, 2003 Va. Cir. LEXIS 290 (Norfolk Aug. 19, 2003).

Petition to terminate support was granted. —

Though the best interests of a 12-year-old child were considered, a father’s child support obligations were terminated after genetic testing showed he was not the biological father of the child. This was despite the fact that the child was born of the marriage, that he was 12 years old when the father learned he was not the father, and that the child had a strong father-son relationship with the father until the father discovered he was not the child’s father and ceased all contact. Taylor v. Taylor, 65 Va. Cir. 109, 2004 Va. Cir. LEXIS 113 (Spotsylvania County June 3, 2004).

Chapter 4. Colored Persons; Marriage Between White and Colored Persons.

§§ 20-50 through 20-60.

Repealed by Acts 1968, c. 318.

Chapter 4.1. Support.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.04 Actions for Support. Friend

Virginia Forms (Matthew Bender). No. 5-103 Judge’s Spousal and Child Support Checklists, et seq.

§ 20-60.1. Applicability of chapter.

The provisions of this chapter shall apply to and govern all cases arising under Title 16.1 and this title in which child or spousal support is at issue in any court of the Commonwealth, unless specifically excepted.

History. 1985, c. 488.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 69.

§ 20-60.2. Admissibility and identification of support payment records.

Copies of support payment records maintained by the Department of Social Services, when certified over the signature of a designated employee of such entity, shall be considered to be satisfactorily identified and shall be admitted in any proceeding as prima facie evidence of such transactions. Additional proof of the official character of the person certifying such record or the authenticity of his signature shall not be required. Whenever an employee of the Department of Social Services is served with a summons, subpoena, subpoena duces tecum or order directing him to produce such records, the employee may comply by transmitting a copy of the payment records certified as described above to the clerk of the court. Notwithstanding the provisions of this section, a judge may, upon good cause shown and upon notice of the items in the records being questioned, direct that an employee of the Department personally appear.

History. 1985, c. 488.

§ 20-60.3. Contents of support orders.

All orders directing the payment of spousal support where there are minor children whom the parties have a mutual duty to support and all orders directing the payment of child support, including those orders confirming separation agreements, entered on or after October 1, 1985, whether they are original orders or modifications of existing orders, shall contain the following:

Notice that support payments may be withheld as they become due pursuant to § 20-79.1 or § 20-79.2 , from income as defined in § 63.2-1900 , without further amendments of this order or having to file an application for services with the Department of Social Services; however, absence of such notice in an order entered prior to July 1, 1988, shall not bar withholding of support payments pursuant to § 20-79.1 ;
Notice that support payments may be withheld pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 without further amendments to the order upon application for services with the Department of Social Services; however, absence of such notice in an order entered prior to July 1, 1988, shall not bar withholding of support payments pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2;
The name, date of birth, and last four digits of the social security number of each child to whom a duty of support is then owed by the parent;
If known, the name, date of birth, and last four digits of the social security number of each parent of the child and, unless otherwise ordered, each parent’s residential and, if different, mailing address, residential and employer telephone number, and number appearing on a driver’s license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, and the name and address of each parent’s employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order;
Notice that, pursuant to § 20-124.2 , support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever occurs first, and that the court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support;
On and after July 1, 1994, notice that a petition may be filed for suspension of any license, certificate, registration or other authorization to engage in a profession, trade, business, occupation, or recreational activity issued by the Commonwealth to a parent as provided in § 63.2-1937 upon a delinquency for a period of 90 days or more or in an amount of $5,000 or more. The order shall indicate whether either or both parents currently hold such an authorization and, if so, the type of authorization held;
The monthly amount of support and the effective date of the order. In proceedings on initial petitions, the effective date shall be the date of filing of the petition; in modification proceedings, the effective date may be the date of notice to the responding party. The first monthly payment shall be due on the first day of the month following the hearing date and on the first day of each month thereafter. In addition, an amount shall be assessed for any full and partial months between the effective date of the order and the date that the first monthly payment is due. The assessment for the initial partial month shall be prorated from the effective date through the end of that month, based on the current monthly obligation;
1. An order for health care coverage, including the health insurance policy information, for dependent children pursuant to §§ 20-108.1 and 20-108.2 if available at reasonable cost as defined in § 63.2-1900 , or a written statement that health care coverage is not available at a reasonable cost as defined in such section, and a statement as to whether there is an order for health care coverage for a spouse or former spouse; and
2. A statement as to whether cash medical support, as defined in § 63.2-1900 , is to be paid by or reimbursed to a party pursuant to subsections D and G of § 20-108.2 , and if such expenses are ordered, then the provisions governing how such payment is to be made;
If support arrearages exist, (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current support obligations first, with any payment in excess of the current obligation applied to arrearages;
If child support payments are ordered to be paid through the Department of Social Services or directly to the obligee, and unless the court for good cause shown orders otherwise, the parties shall give each other and the court and, when payments are to be made through the Department, the Department of Social Services at least 30 days’ written notice, in advance, of any change of address and any change of telephone number within 30 days after the change;
If child support payments are ordered to be paid through the Department of Social Services, a provision requiring an obligor to keep the Department of Social Services informed, or if payments are ordered to be paid directly to the obligee, a provision requiring an obligor to keep the court informed, of (i) the name, address, and telephone number of his current employer; (ii) any change to his employment status; and (iii) if he has filed a claim for or is receiving benefits under the provisions of Title 60.2. The provision shall further specify that any such change in employment status or filing of a claim shall be communicated to the Department of Social Services or the court in writing within 30 days of such change or filing;
If child support payments are ordered to be paid through the Department of Social Services, a provision requiring the party obligated to provide health care coverage to keep the Department of Social Services informed of any changes in the availability of the health care coverage for the minor child or children, or if payments are ordered to be paid directly to the obligee, a provision requiring the party obligated to provide health care coverage to keep the other party informed of any changes in the availability of the health care coverage for the minor child or children;
The separate amounts due to each person under the order, unless the court specifically orders a unitary award of child and spousal support due or the order affirms a separation agreement containing provision for such unitary award;
Notice that in determination of a support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law. The order shall also provide, pursuant to § 20-78.2 , for interest on the arrearage at the judgment rate as established by § 6.2-302 unless the obligee, in a writing submitted to the court, waives the collection of interest;
Notice that on and after July 1, 1994, the Department of Social Services may, pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and in accordance with §§ 20-108.2 and 63.2-1921 , initiate a review of the amount of support ordered by any court;
A statement that if any arrearages for child support, including interest or fees, exist at the time the youngest child included in the order emancipates, payments shall continue in the total amount due (current support plus amount applied toward arrearages) at the time of emancipation until all arrearages are paid; and
Notice that, in cases enforced by the Department of Social Services, the Department of Motor Vehicles may suspend or refuse to renew the driver’s license, or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 authorizing the operation of a motor vehicle upon the highways, of any person upon receipt of notice from the Department of Social Services that the person (i) is delinquent in the payment of child support by 90 days or in an amount of $5,000 or more or (ii) has failed to comply with a subpoena, summons, or warrant relating to paternity or child support proceedings.The provisions of this section shall not apply to divorce decrees where there are no minor children whom the parties have a mutual duty to support.

History. 1985, c. 488; 1986, c. 594; 1987, cc. 597, 658, 706; 1988, c. 906; 1991, cc. 651, 694; 1992, c. 199; 1993, c. 534; 1994, cc. 764, 795; 1997, cc. 796, 895; 1998, cc. 727, 884; 2000, c. 305; 2003, c. 625; 2004, c. 1008; 2006, cc. 720, 869; 2009, cc. 706, 713; 2015, cc. 653, 654; 2020, cc. 1227, 1246; 2021, Sp. Sess. I, c. 222.

Cross references.

As to delivery of notice of administrative support order, see § 63.2-1917 .

Editor’s note.

In subdivision 14, “§ 6.2-302 ” was substituted for “§ 6.1-330.54,” effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

Acts 2015, cc. 653 and 654, cl. 2 provides: “That an individual denied support under § 16.1-278.15, 20-60.3 , or 20-124.2 prior to July 1, 2015, who otherwise meets the requirements for support under this act, shall be eligible to petition the court for support under the provisions of this act. In such cases, liability shall be determined according to subsection B of § 20-108.1 , and the date of the new petition shall be the date that the proceeding was commenced for purposes of subsection B of § 20-108.1 .”

Acts 2020, cc. 1227 and 1246, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2021.”

Acts 2020, cc. 1227 and 1246, cl. 4 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

The 2000 amendments.

The 2000 amendment by c. 305, in subdivision 7, inserted the clause “a” designator and added clause b.

The 2003 amendments.

The 2003 amendment by c. 625 substituted “spousal support where there are minor children whom the parties have a mutual duty to support and all orders directing the payment of child” for “child or spousal” in the introductory paragraph; substituted “90” for “ninety” in subdivision 5; twice substituted “30” for “thirty” in subdivision 9; and added the last paragraph.

The 2004 amendments.

The 2004 amendment by c. 1008, in subdivision 7 b, substituted “unreimbursed” for “extraordinary,” “subsections D and G” for “subsection D and subdivision G 3” and “governing how such payment” for “as how such payment.”

The 2006 amendments.

The 2006 amendment by c. 720 added subdivision 14 and made related changes.

The 2006 amendment by c. 869 rewrote subdivision 6, which formerly read: “The amount of periodic support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due.”

The 2009 amendments.

The 2009 amendment by c. 706, added subdivisions 5, 12 and 17, and renumbered remaining subdivisions accordingly; substituted “parent” for “person responsible for support” in subdivisions 3 and 6; in subdivision 3, substituted “name, date of birth, and last four digits of the social security number” for “names and dates of birth”; in subdivision 4, inserted “last four digits of the” preceding “social security number,” deleted “if different and if known, the name, date of birth and social security number of the person responsible for support and” preceding “unless otherwise ordered” and substituted “parent’s” for “parent or responsible person’s”; in subdivision 6, inserted “or recreational activity”; in subdivision 8, inserted “or a written statement that health care coverage is not available at a reasonable cost as defined in such section”; in subdivision 14, added the last sentence; and made minor stylistic changes.

The 2009 amendment by c. 713 substituted “cash medical support, as defined in § 63.2-1900 , is” for “any unreimbursed medical expenses are” in subdivision 7 b [now subdivision 8 b].

The 2015 amendments.

The 2015 amendments by cc. 653 and 654 are identical, and in subdivision 5, substituted “that support be paid or continue to be paid” for “the continuation of support” and inserted “and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii)”; and made minor stylistic changes.

The 2020 amendments.

The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and in subdivision 4, substituted “and number appearing on a driver’s license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction” for “driver’s license number” and “each parent’s” for “his or her”; and inserted “or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 authorizing the operation of a motor vehicle upon the highways” in the introductory language of subdivision 17.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 222, effective July 1, 2021, in subdivision 11, in the first sentence, deleted “of the name, address and telephone number of his current employer” following “Social Services informed,” inserted the clause (i) designation and added clauses (ii) and (iii), added the second sentence and made related changes.

Law Review.

For 1994 survey of Virginia domestic relations law, see 28 U. Rich. L. Rev. 981 (1994).

For 2006 survey article, “Family and Juvenile Law,” see 41 U. Rich. L. Rev. 151 (2006).

For annual survey article, “Family Law,” see 46 U. Rich. L. Rev. 145 (2011).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 53.

CASE NOTES

Interpretation of support order. —

Because the trial court had authority to interpret its own order regarding a bond and payment of private school tuition and expenses for a child, it did not abuse its discretion in ordering the mother to contribute to private school tuition and expenses for one of her children. Yarish v. Yarish, 2009 Va. App. LEXIS 217 (Va. Ct. App. May 12, 2009).

Health care coverage. —

The court is not required under this section to determine the amount of health care coverage that will be necessary as there is no way for the court to predict the costs. The trial court, therefore, did not err in ordering father to provide health insurance coverage for his minor children or, at his option, pay all health costs related to said children. Zubricki v. Motter, 12 Va. App. 999, 406 S.E.2d 672, 8 Va. Law Rep. 350, 1991 Va. App. LEXIS 193 (1991).

This section plainly contemplates that a requirement for provision of health insurance may be a part of a spousal support award. Kitterman v. Kitterman, No. 0511-89-4 (Ct. of Appeals Sept. 11, 1990).

A review of the record revealed no evidence that clearly established wife’s medical problems were caused by husband or the breakup of the marriage. Without such evidence, or evidence wife was unable to obtain health coverage on her own, the trial court did not abuse its discretion in denying wife’s request for health care coverage. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

Circuit court erred when it failed to include a provision regarding health care coverage in a child support order where § 20-60.3 required such a provision, and there was insufficient evidence from which to determine whether the sole statutory exception, i.e., that coverage was not available at a reasonable cost, applied. Elliott v. Wendell, 2016 Va. App. LEXIS 356 (Va. Ct. App. Dec. 20, 2016).

Right to prejudgment interest on unpaid medical insurance expenses. —

As a former husband’s failure to pay his former wife and children’s medical insurance expenses, which were in the nature of spousal and child support, created a judgment by operation of law under subdivision 12 of § 20-60.3 (now see subdivision 14) as these expenses came due, pursuant to § 8.01-382 , the wife was entitled to prejudgment interest on these amounts. Whitney v. Whitney, 2007 Va. App. LEXIS 203 (Va. Ct. App. May 15, 2007).

Judgment rate of interest. —

Because the amount of interest owed by a husband was dependent on the ultimate determination of the husband’s child support arrearage, if any, and because the matter was remanded to the trial court for the recalculation of his child support arrearage, the court’s interest award had to be reversed and remanded for reconsideration. Insofar as the husband’s underlying argument as to the amount of child support owed remained pertinent on remand, the trial court did not err in applying the judgment rate of interest from the date each payment of support was due until paid in full or in determining the applicable judgment rate was 9 percent through a certain date and 6 percent thereafter. Wolfe v. Arthur, 2008 Va. App. LEXIS 135 (Va. Ct. App. Mar. 18, 2008).

Modification affirmed. —

Where trial court found credible evidence indicating that an obligor parent’s reduced circumstances were not due to voluntary actions but were caused by employer’s unwillingness to offer employment in the parent’s former area of employment after the parent’s anxiety disorder was diagnosed as gender identity problems that were treated by that parent’s undertaking to live as a member of the opposite sex, the appeals court declined to interfere with the trial court’s findings and its decision that the parent’s child support obligation should be reduced. Dorough v. Dorough, 2004 Va. App. LEXIS 572 (Va. Ct. App. Nov. 23, 2004).

CIRCUIT COURT OPINIONS

Modification. —

Where the parties did not petition a court to approve a modification of a settlement agreement or the father’s child support obligations, the parties were without authority to modify the obligations. Larkins v. Larkins, 62 Va. Cir. 1, 2003 Va. Cir. LEXIS 23 (Fairfax County Feb. 20, 2003).

While a father’s incarceration presented a material change in circumstances, his voluntary act of engaging in carnal knowledge with his daughter was insufficient to warrant a reduction of his child support obligation. Hustead v. Hustead, 2003 Va. Cir. LEXIS 191 (Spotsylvania County Feb. 12, 2003).

§ 20-60.4. Abstracts of orders, etc.; clerk shall transmit information regarding any order of support which is entered or modified to Department of Social Services.

The transmission of data between the courts and the Department of Social Services shall be accomplished by electronic data transmission or by transmission of notices, abstracts of orders and other documents. The form and content of such transmissions shall be mutually approved by the Committee on District Courts and the Department of Social Services.

History. 1985, c. 488.

§ 20-60.5. Support payment provisions; how paid.

1. Unless otherwise directed by the Committee on District Courts, in all cases in which payment of a support obligation arising under an order or decree entered prior to October 1, 1985, is made by the obligor through the office of a clerk of court, the clerk shall notify the payee and the obligor that the obligor will be directed to pay future support payments to the Department of Social Services as of the date provided in the notice.In cases transferred from the courts to the Department of Social Services on or after October 1, 1985, the payee shall be deemed as having executed an authorization to seek or enforce a support obligation with the Department’s Division of Child Support Enforcement unless the payee specifically indicates that the Division’s services are not desired. A. 1. Unless otherwise directed by the Committee on District Courts, in all cases in which payment of a support obligation arising under an order or decree entered prior to October 1, 1985, is made by the obligor through the office of a clerk of court, the clerk shall notify the payee and the obligor that the obligor will be directed to pay future support payments to the Department of Social Services as of the date provided in the notice.In cases transferred from the courts to the Department of Social Services on or after October 1, 1985, the payee shall be deemed as having executed an authorization to seek or enforce a support obligation with the Department’s Division of Child Support Enforcement unless the payee specifically indicates that the Division’s services are not desired.
2. Unless otherwise directed by the Department of Social Services, the notice of change in payment shall be served or sent by certified mail, return receipt requested, and shall contain (i) the name of the payee and, if different in whole or in part, the names of the persons to whom an obligation of support is owed by the obligor, (ii) the name of the obligor, (iii) the amount of the periodic support payment, the due dates of such payments and any arrearages, (iv) the beginning date for sending payments to the Department of Social Services, and (v) the date by which the payee and obligor shall notify the Department of Social Services of the election to (a) have the Department of Social Services collect and disburse support payments together with forms and instructions for applying for such services or (b) have support payment made by the obligor directly to the payee. A copy of the notice also shall be transmitted to the Department of Social Services.
3. Unless otherwise directed by the Committee on District Courts, if both the obligor and the payee request in writing to the Department of Social Services that all support payments be made by the obligor directly to the payee, then the Department of Social Services shall so notify the court and the court shall enter an order to such effect. In the event an election is taken pursuant to subdivision 2 (v)(a), the notice of election shall have the same force and effect as an order of the court.
4. The above provisions shall also apply to payroll deductions made pursuant to § 20-79.1 , except that only the payee and the employer shall receive such notice.
5. The change in payment provision required by subsection A shall be initiated by October 1, 1985, unless a different date is mutually agreed to by the Department of Social Services and the Committee on District Courts as to individual courts.
Unless a different date is mutually agreed to by the Department of Social Services and the Committee on District Courts, all orders or decrees for support entered on or after October 1, 1985, shall direct that payment be made only to the payee unless one of the parties objects, in which case the order or decree shall direct that payment be made to or through the Department of Social Services.
The Department of Social Services shall promptly pay to the payee all support payments collected by it which have been ordered by a court to be paid to or through the Department. The Department shall pay interest to the payee when such interest amount exceeds $5 on a support payment as provided in § 63.2-1951 .
If the Department of Social Services enters into a contract with a public or private entity for the processing of support payments, then, except as provided in subsection E, and notwithstanding any other provision of this section:
1. The Department shall notify the affected court of the existence of such contract and how payments are contractually required to be made to such contractors; and
2. The affected court shall include in all support orders (i) how payments are required to be made to such contractors and (ii) that payments are to be made in such manner until different payment instructions are mailed to the person making payments by the court or by the Department.
An employer of 10,000 persons or more shall not be required to make payments other than by combined single payment to the Department’s central office in Richmond without the express written consent of the employer, unless the order is from a support enforcement agency outside the Commonwealth.
Upon any obligee’s application for public assistance benefits or child support services, the Department of Social Services may change the payee to the Department so that payment is sent to the Department at its address as contained in the notice of change as described in this subsection. Upon the obligee’s request that support services no longer be provided, the Department may change the payee to the obligee so that payment is sent to the obligee at the address provided by the obligee as contained in the notice of change as described in this subsection. Notice of such change shall be served on the obligor by certified mail, return receipt requested, by electronic means, or in accordance with Chapter 8 (§ 8.01-285 et seq.) or Chapter 9 (§ 8.01-328 et seq.) of Title 8.01. The change described in the notice shall be effective as to all payments paid on or after the date that notice was served regardless of when such payments were due. Return of service shall be made to the Department of Social Services at the location described in the notice. Upon obtaining service of the notice on the obligor, the Department of Social Services shall transmit a copy of such notice together with a copy of the proof of service to the court having jurisdiction for enforcement of the order and to the custodial parent.

History. 1985, c. 488; 1986, c. 594; 1986, Sp. Sess., cc. 1, 3; 1987, cc. 609, 658, 706; 1988, c. 906; 1990, c. 836; 1991, cc. 651, 694; 1996, c. 416; 2016, c. 29.

The 2016 amendments.

The 2016 amendment by c. 29 inserted “by electronic means” in the third sentence of subsection F.

CASE NOTES

No discretion to disregard objection to direct payment. —

Where mother objected to paying support directly to the father, subsection B of this section gave the trial court no discretion on this issue. Thus, the trial court failed to comply with the statute when it disregarded her request. Consequently, the appellate court reversed that provision in the trial court’s order and ordered the mother to pay child support payments through the Department of Social Services as required by subsection B. Bourne v. Frey, 1994 Va. App. LEXIS 747 (Va. Ct. App. Dec. 20, 1994).

§ 20-60.6. When delivery of notice to party at last known address sufficient.

In any subsequent child support enforcement proceeding between the parties, upon sufficient showing that diligent effort was made to ascertain the location of a party, that party may be served with any required notice by delivery of the written notice to that party’s residential or business address as filed with the court pursuant to § 20-60.3 or the Department of Social Services, or if changed, as shown in the records of the Department of Social Services, or the court. However, any person served with notice as provided in this section may challenge, in a subsequent judicial proceeding, an order entered based upon such service on the grounds that he did not receive the notice and enforcement of the order would constitute manifest injustice.

History. 1997, cc. 796, 895; 1998, c. 884.

Chapter 5. Desertion and Nonsupport.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.04 Actions for Support. Friend.

Harrison on Wills & Administration for Virginia and West Virginia (Matthew Bender). Chapter 3 Descent and Distribution. § 3.09 Children and Their Descendants. Cox.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 53, 57.

§ 20-61. Desertion or nonsupport of wife, husband or children in necessitous circumstances.

Any spouse who without cause deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her spouse, and any parent who deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her child under the age of eighteen years of age, or child of whatever age who is crippled or otherwise incapacitated from earning a living, the spouse, child or children being then and there in necessitous circumstances, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not exceeding $500, or confinement in jail not exceeding twelve months, or both, or on work release employment as provided in § 53.1-131 for a period of not less than ninety days nor more than twelve months; or in lieu of the fine or confinement being imposed upon conviction by the court or by verdict of a jury he or she may be required by the court to suffer a forfeiture of an amount not exceeding the sum of $1,000 and the fine or forfeiture may be directed by the court to be paid in whole or in part to the spouse, or to the guardian, curator, custodian or trustee of the minor child or children, or to some discreet person or responsible organization designated by the court to receive it. This section shall not apply to the parent of a child of whatever age, if the child qualifies for and is receiving aid under a federal or state program for aid to the permanently and totally disabled; or is an adult and meets the visual requirements for aid to the blind; and for this purpose any state agency shall use only the financial resources of the child of whatever age in determining eligibility; however, such parent is subject to prosecution under this section for the desertion or nonsupport of a spouse or of another child who is not receiving such aid.

History. 1944, p. 210; Michie Suppl. 1946, § 1936; 1950, p. 613; 1954, c. 481; 1960, c. 275; 1966, c. 360; 1970, c. 284; 1972, cc. 460, 845; 1973, cc. 315, 346; 1974, c. 464; 1975, c. 644; 1976, c. 462; 2010, c. 619.

Cross references.

As to liability of spouse for emergency medical care furnished to the other spouse while the spouses are living together, see § 8.01-220.2 .

As to sentence for violation of an order of the juvenile court, see § 16.1-292.

As to report to State Police that is required upon service of process, see § 19.2-390 .

For provision for sentencing a person to nonconsecutive days in jail upon conviction of an offense under this chapter, see § 53.1-131.1 .

As to punishment in accordance with the provisions of § 20-61 for failure to support certain children living in same home, see § 63.2-510 .

The 2010 amendments.

The 2010 amendment by c. 619, in the last sentence, substituted “to the parent of a child” for “to any parent of any child” near the beginning and added “however, such parent is subject to prosecution under this section for the desertion or nonsupport of a spouse or of another child who is not receiving such aid” to the end.

Law Review.

For comment, “Lack of Due Process in Virginia Contempt Proceeding for Failure to Comply with Order for Support and Alimony,” see 4 U. Rich. L. Rev. 128 (1969).

For survey of Virginia law on domestic relations for the year 1969-1970, see 56 Va. L. Rev. 1411 (1970).

For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

For survey of Virginia law on domestic relations for the year 1972-1973, see 59 Va. L. Rev. 1520 (1973).

For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For comment, “The New Doctrine of Necessaries in Virginia,” see 19 U. Rich. L. Rev. 317 (1985).

For note, “Estop in the Name of Love: A Case for Constructive Marriage in Virginia,” see 49 Wm. & Mary L. Rev. 973 (2007).

For annual survey article, “Family Law,” see 46 U. Rich. L. Rev. 145 (2011).

CASE NOTES

Common-law doctrine of necessaries held unconstitutional. —

The common-law necessaries doctrine, which makes a husband responsible for necessities provided to his spouse but does not impose a similar obligation on the wife, contains a gender-based classification which is violative of Va. Const., Art. I, § 11, and the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution, as it is not substantially related to the achievement of an important governmental objective. Schilling v. Bedford County Mem. Hosp., 225 Va. 539 , 303 S.E.2d 905, 1983 Va. LEXIS 253 (1983).

This chapter embraces criminal nonsupport actions. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Section affords no basis for civil relief. —

This section, imposing criminal sanctions, affords no basis for civil relief. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99, 1972 Va. LEXIS 280 (1972).

This section is a criminal statute which provides no civil relief. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Actions under this section are criminal in nature. —

Any action brought pursuant to this section is criminal in nature, regardless of the person instituting the petition, whether it is the state or some other named party in the statute. Walthall v. Commonwealth, 3 Va. App. 674, 353 S.E.2d 169, 3 Va. Law Rep. 1806, 1987 Va. App. LEXIS 157 (1987).

Former § 20-61.1 became criminal in nature when employed in conjunction with a proceeding under this section. Section 20-61.1 in itself, however, was not criminal in that it provided no penalty or punishment. Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Former § 20-61.1 applied to both civil and criminal proceedings. Used in conjunction with this section, it was criminal in nature. Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

Object of statutes. —

A father has the right at common law to maintain his children in his own home, and he cannot be compelled against his will to do so elsewhere, unless he has refused or failed to provide for them where he lives, and the statutes providing for the punishment of a father (now spouse) for the failure to support his children, were not intended to change the common law, with respect to the duty of a father to maintain and support his infant children, but merely to more effectually enforce the legal duty. Butler v. Commonwealth, 132 Va. 609 , 110 S.E. 868 , 1922 Va. LEXIS 58 (1922).

Both parents owe a duty of support to their minor children. Bennett v. Commonwealth, Va. Dep't of Social Servs. ex rel. Bennett, 22 Va. App. 684, 472 S.E.2d 668, 1996 Va. App. LEXIS 513 (1996).

Duty not escaped by misconduct. —

A husband and father is bound to support his wife and children, and if, by his misconduct, he renders it impossible for them to remain under his roof, he cannot, by his misconduct, escape the performance of the duty which the law imposes upon him. Owens v. Owens, 96 Va. 191 , 31 S.E. 72 , 1898 Va. LEXIS 78 (1898).

It is a father’s (now spouse’s) legal and moral duty to support his dependent infant children. Bruce v. Dean, 149 Va. 39 , 140 S.E. 277 , 1927 Va. LEXIS 173 (1927); Boaze v. Commonwealth, 165 Va. 786 , 183 S.E. 263 , 1936 Va. LEXIS 252 (1936).

The duty of a father (now spouse) to support his children is based largely upon his right to their custody and control. Butler v. Commonwealth, 132 Va. 609 , 110 S.E. 868 , 1922 Va. LEXIS 58 (1922).

The duty of a parent to support minor children is a continuing obligation subject to review at any time as changing circumstances may dictate. D'Auria v. D'Auria, 1 Va. App. 455, 340 S.E.2d 164, 1986 Va. App. LEXIS 223 (1986).

Legal obligation only during minority of children. —

A parent has the legal obligation to support his children only during their minority. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

But parent may contract to support child beyond minority. —

The legal obligation of a parent to support his children only during their minority does not preclude the parent from contracting to support the children after their minority. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

When support of child beyond minority required. —

Even though the oldest child is 18 years old, the husband may be liable for support. A father may be obliged by contract to support a child who has reached majority. He may also be required to support an adult child who is mentally or physically incapacitated from earning a living. Whether he is liable for her support is an appropriate inquiry for a timely appeal of the divorce decree, but not for a collateral attack in an action to recover delinquent support payments. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Agreement on support. —

Both parents owed a duty of support to their minor children; even though the parties stated in their property settlement agreement that there was no child support obligation, the trial court was not prohibited from subsequently reviewing child support and ordering father to pay it. Huy K. Le v. Mai T. Ngo, 2016 Va. App. LEXIS 73 (Va. Ct. App. Mar. 15, 2016).

Mother accountable for support of child. —

This section indicates a legislative intent that the mother, as well as the father, of a child under 18 years of age or of an incapacitated child of any age, shall be accountable for the support of such child. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99, 1972 Va. LEXIS 280 (1972).

Null and void settlement provisions. —

Where parties contracted away the husband’s legal duty to support his children and, in effect, placed upon the wife the sole duty of support, and additionally, the wife’s ability to contribute to the support of the children was adversely affected, the children’s right to receive support from both parents was substantially abridged and the court’s power to decree support was diminished. Therefore, provisions of the property settlement agreement were null and void because they violated clearly established law. Kelley v. Kelley, 248 Va. 295 , 449 S.E.2d 55, 1994 Va. LEXIS 119 (1994).

Father (now spouse) not liable for support where children are kept away from him. —

Where a wife, with the acquiescence of her father, keeps her children away from her husband at her father’s house, neither the wife nor the wife’s father can charge the husband in a civil suit for the support and maintenance of the children. Butler v. Commonwealth, 132 Va. 609 , 110 S.E. 868 , 1922 Va. LEXIS 58 (1922).

Although he did not resort to legal process to bring children back. —

In a prosecution of a father for failure to support his infant children, where his wife had taken the children to the house of her father in another state, his failure to resort to legal process to bring them back from that state to his home afforded no ground upon which to hold him liable for their maintenance and support. Butler v. Commonwealth, 132 Va. 609 , 110 S.E. 868 , 1922 Va. LEXIS 58 (1922).

The absolute inability of the accused to contribute anything to the support of his family bars a prosecution for desertion and nonsupport. Painter v. Commonwealth, 140 Va. 459 , 124 S.E. 431 , 1924 Va. LEXIS 188 (1924).

This chapter does not wipe out other remedies. —

The circuit court is not without jurisdiction of a suit by an infant to require her father to make provision for her maintenance and support because of this and the following sections, since, under those sections, there would be no relief unless the father was adjudged guilty of a crime, and these sections do not, in terms or otherwise wipe out other remedies, but only provide an additional and quick remedy to punish the father. McClaugherty v. McClaugherty, 180 Va. 51 , 21 S.E.2d 761, 1942 Va. LEXIS 145 (1942).

This and following sections do not prevent courts from awarding alimony. —

This and the following sections provide an additional and quick remedy, in cases arising under them, to punish the guilty husband for his offense and at the same time prevent the wife from becoming a public charge. They give no civil remedy. But these sections do not deprive courts of equity of their inherent jurisdiction to award alimony in absence of prayer for a divorce. Heflin v. Heflin, 177 Va. 385 , 14 S.E.2d 317, 1941 Va. LEXIS 226 (1941)See § 20-67 .

While in a technical sense the provisions of this chapter may be criminal in form, in their practical effect they are compensatory provisions and analogous to § 20-103 , which provides for the maintenance of the wife during the pendency of a suit for divorce. Under both this chapter and the said section, the court may direct payments to be made to the wife at stated periods and may punish as for contempt upon failure so to do. But the two remedies are distinct and a wife must elect which remedy she will pursue in compelling her delinquent husband to provide her support. Wright v. Wright, 164 Va. 245 , 178 S.E. 884 , 1935 Va. LEXIS 198 (1935).

What the court meant in Wright v. Wright, 164 Va. 245 , 178 S.E. 884 (1935), and Boaze v. Commonwealth, 165 Va. 786 , 183 S.E. 263 (1936) was that there were only two statutory remedies. It did not mean that there was no independent equitable remedy to enforce payment of alimony. Heflin v. Heflin, 177 Va. 385 , 14 S.E.2d 317, 1941 Va. LEXIS 226 (1941).

Res judicata did not bar convictions. —

Res judicata did not bar defendant’s convictions for violations of § 20-61 because defendant could not prove the identity of the parties; in the earlier proceeding that defendant alleged barred his criminal prosecution, a county juvenile and domestic relations district court proceeding resulting in a child support order, the parties involved were defendant and his former wife, but in contrast, the Commonwealth directly indicted defendant for criminal non-support in violation of § 20-61 , and the wife was not a party to the criminal prosecution. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Double jeopardy. —

Defendant waived his objection that double jeopardy barred his multiple convictions for violations of § 20-61 because defendant failed to raise his double jeopardy objection in writing before trial, as required by § 19.2-266.2 ; defendant did not argue that the good cause or ends of justice exception to § 19.2-266.2 had to be invoked. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

What shall constitute “necessitous circumstances,” under this section punishing a man for deserting his wife and minor children, depends upon the circumstances of the particular case, and is a question for the jury subject to review by the court in a proper case and upon familiar principles. Burton v. Commonwealth, 109 Va. 800 , 63 S.E. 464 , 1909 Va. LEXIS 97 (1909).

Proof of causation not required. —

Trial court did not err in convicting defendant of failure to provide support for his minor children because the evidence was not insufficient to support the convictions under § 20-61 for the Commonwealth’s failure to prove that defendant’s failure to support his children caused their necessitous circumstances; under the plain language of § 20-61 , no proof of causation is required to support a conviction. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

What constitutes “just cause.” —

A quarrel or series of quarrels between husband and wife for which wife is responsible in whole or in part, do not constitute just cause (now simply “cause”) for desertion on the part of the husband, or for his willful neglect to provide for her support and that of their minor children. Burton v. Commonwealth, 109 Va. 800 , 63 S.E. 464 , 1909 Va. LEXIS 97 (1909).

Federal Old Age, Survivors and Disability Insurance Program benefits constitute “aid under a federal . . . program” within the meaning of this section. Compton v. Commonwealth ex rel. Dep't of Mental Health & Mental Retardation, 239 Va. 312 , 389 S.E.2d 460, 6 Va. Law Rep. 1515, 1990 Va. LEXIS 31 (1990).

This section provides the penalty which may be applied upon a conviction under former § 20-61.1 , classified as a misdemeanor. Distefano v. Commonwealth, 201 Va. 23 , 109 S.E.2d 497, 1959 Va. LEXIS 188 (1959).

Collection of support payments. —

The fact that juvenile and domestic relations courts are particularly well equipped to supervise the collection of support payments from recalcitrant husbands is evidenced by the enactment of § 20-79 (c) , which authorizes courts of record to refer such matters to juvenile and domestic relations courts. Werner v. Commonwealth, 212 Va. 623 , 186 S.E.2d 76, 1972 Va. LEXIS 219 (1972).

Enforcement of foreign order beyond minority. —

Although, under Virginia law, a parent has the legal obligation to support his children only during their minority, a Virginia court can enforce another state’s support order for payments beyond the time when the child has reached the age of majority. Robdau v. Dep't of Soc. Servs., Div. of Child Support Enforcement ex rel. Robdau, 35 Va. App. 128, 543 S.E.2d 602, 2001 Va. App. LEXIS 132 (2001).

Court-appointed counsel. —

Nothing in § 19.2-159 or in the financial statement form required child care payments to be made pursuant to a court order; in fact it would have been contrary to the intent of the child support statutory requirements to penalize voluntary payments of a support obligation. Deducting defendant’s child care payments, his income was below 125 percent of the poverty guidelines, and he was entitled to court-appointed counsel. Blue v. Commonwealth, 49 Va. App. 704, 644 S.E.2d 385, 2007 Va. App. LEXIS 195 (2007).

Jurisdiction over contempt hearing. —

Trial court properly ordered a former husband under § 20-61 to jail for a period of 12 months or until he purged himself of contempt for failure to pay child support or support arrearages because while the husband claimed that the trial court lacked jurisdiction to hold the contempt hearing based on § 20-67 , § 20-115 specifically gave the trial court the authority to hold the hearing. Jagannathan v. Jagannathan, 2008 Va. App. LEXIS 88 (Va. Ct. App. Feb. 19, 2008).

Evidence sufficient to support conviction. —

Evidence was sufficient to support defendant’s convictions under § 20-61 because the trial court’s factual finding that defendant’s children were in “necessitous circumstances” was not plainly wrong or lacked evidence to support it; defendants’ former wife testified that the bank began foreclosure proceedings on the house in which she and the children lived, the family cars were repossessed, and she was forced to accept charity from her church and a food bank to feed her children. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Sentencing. —

Trial court may not order a person convicted of a felony to serve any confinement in jail on weekends or nonconsecutive days. The plain language of § 53.1-131.1 , limits the court’s authority to convictions for misdemeanors, traffic offenses and violations of Chapter 5 (§ 20-61 et seq.) Title 20. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth’s Attorney, City of Virginia Beach, 12-062, (7/20/2012).

§§ 20-61.1, 20-61.2. Repealed by Acts 1988, cc. 866, 878.

Cross references.

For current provisions as to proceedings to determine parentage, see now § 20-49.1 et seq.

Editor’s note.

Repealed § 20-61.1 was amended by Acts 1988, c. 782, and repealed § 20-61.2 was amended by Acts 1988, c. 777.

§ 20-61.3. Consequences of a putative father failing to appear.

If a putative father fails to appear after having been personally served with notice, in accordance with the provisions of subdivision 1 of § 8.01-296 or § 8.01-320 , alleging that he is the father of a minor child, the court shall proceed in hearing the evidence in the case as provided in Chapter 3.1 (§ 20-49.1 et seq.) of Title 20 as if the putative father were present. The order of the court in any such proceedings shall be served upon the father in accordance with the provisions of Chapter 8 (§ 8.01-285 et seq.) or Chapter 9 (§ 8.01-328 et seq.) of Title 8.01.

History. 1988, cc. 867, 894; 1994, c. 869.

§ 20-62. Commitment to workhouse, city farm or work squad for such desertion.

In the event that the cities or counties of this Commonwealth or any of them establish workhouses, city farms or work squads on which prisoners are put to work, persons convicted of nonsupport under the provisions of this chapter may be committed to the farms, workhouses or work squads instead of to jail. Persons sentenced to jail or to a workhouse or city farm under the provisions of this chapter shall be required to do such work as they are capable of in accordance with the opinion of the physician examining such persons pursuant to § 53.1-33 and shall be returned, when released, to the court which exercised original jurisdiction in the case and by that court may be placed on probation upon the terms and conditions and in the manner prescribed by law for probation of original offenders in such cases.

History. 1944, p. 210; Michie Suppl. 1946, § 1936; 1954, c. 481; 1970, c. 630; 1978, c. 377.

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Parent and Child, § 19.

§ 20-63. Support payments by county or city.

It shall be the duty of the governing body of the county or city within the boundaries of which any work is performed under the provisions of this chapter to allow and order payment at the end of each calendar month, out of the current funds of the county or city, to the Department of Social Services for the support of the prisoner’s spouse or child or children, a sum not less than $20 nor more than $40 for each week in the discretion of the court during any part of which any work is so performed by such prisoner.

History. 1944, p. 211; Michie Suppl. 1946, § 1936a; 1954, c. 481; 1958, c. 637; 1966, cc. 120, 437; 1974, c. 464; 1978, c. 586; 2016, c. 220.

The 2016 amendments.

The 2016 amendment by c. 220 deleted “(a)” at the beginning, substituted “Department of Social Services” for “court which originally sentenced the prisoner,” “the prisoner’s” for “his or her,” and “$20 nor more than $40” for “five nor more than twenty-five dollars”; and deleted “(b) [Repealed.]” at the end.

§ 20-64. Proceedings instituted by petition.

Proceedings under this chapter may be instituted upon petition, verified by oath or affirmation, filed by the spouse or child or by any probation officer or by any state or local law-enforcement officer or by the Department of Social Services upon information received, or by any other person having knowledge of the facts, and the petition shall set forth the facts and circumstances of the case.

History. 1944, p. 211; Michie Suppl. 1946, § 1937; 1974, c. 464; 2002, c. 747.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, substituted “the Department of Social Services” for “any state or local public welfare officer.”

Law Review.

For comment, “Lack of Due Process in Virginia Contempt Proceeding for Failure to Comply with Order for Support and Alimony,” see 4 U. Rich. L. Rev. 128 (1969).

For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

§ 20-65. Summons or warrant; investigation and hearing.

Upon the filing of such petition the court shall forthwith issue its summons or warrant against the spouse or parent and upon its execution may cause an investigation of the case to be made by a probation officer or other person designated for that purpose who shall report thereon to the court, and thereupon the court shall, upon the return date of the warrant or summons, proceed to determine and hear the case on its merits.

History. 1944, p. 211; Michie Suppl. 1946, § 1937; 1974, c. 464; 1975, c. 557.

§ 20-66. Contempt proceedings; trial in absence of defendant.

If the person so summoned fails without reasonable cause to appear as herein required, he or she may be proceeded against as for contempt of court and the court may, (1) proceed with the trial of the case in his or her absence and render such judgment as to it seems right and proper, or (2) continue the case to some future date.
If the trial be proceeded with in the absence of the defendant and judgment of conviction be entered against him or her, he or she may, within thirty days after the judgment of conviction is rendered, make application to the court to have the case reopened, and after due notice to the original complainant, for good cause, the court may reopen the case and enter such judgment or order as is right and proper.

History. 1944, p. 211; Michie Suppl. 1946, § 1937a; 1974, c. 464.

§ 20-67. Jurisdiction.

Proceedings under this chapter shall be had in the juvenile and domestic relations district courts, which shall have exclusive original jurisdiction in all cases arising under this chapter, except that any grand jury of any circuit court may indict for desertion and nonsupport in any case wherein the defendant is a fugitive from the Commonwealth, and any defendant so indicted or presented and apprehended may be tried by the court in which the indictment or presentment is found or, in the discretion of the court, referred to the juvenile and domestic relations district court.

History. 1944, p. 212; Michie Suppl. 1946, § 1937c; 1974, c. 464; 1975, c. 644.

Editor’s note.

Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.

Law Review.

For an overview of Virginia Supreme Court Decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

CASE NOTES

No jurisdiction to extradite. —

The proceeding in this case was before the circuit court, not the juvenile and domestic relations court. Because the circuit court did not have the authority to order extradition, that part of the order was reversed. Scheib v. Scheib, 1997 Va. App. LEXIS 23 (Va. Ct. App. Jan. 28, 1997).

Relation to other statutes. —

§ 20-68. Appeal.

The person accused shall have the same right of appeal as provided by law in other similar cases; provided that any order of court requiring support of a spouse or children shall remain in full force and effect until reversed or modified by judgment of a superior court, and in the interim the order shall be enforceable by the court entering it and the court may punish for violation of the order as for contempt. After the judgment of conviction and entry of order of support from which no appeal is taken the hearing in the appellate court on an appeal from any subsequent order, modification or amendment shall be restricted to the particular matter or order appealed from.

History. 1944, p. 212; Michie Suppl. 1946, § 1937c; 1974, c. 464.

Cross references.

For statute on general jurisdiction of judges of juvenile courts, see § 16.1-241.

CASE NOTES

Section applies where petition is criminal in nature not civil. To hold that the Legislature intended to arbitrarily deny the right of appeal to one party in civil litigation would raise serious due process and equal protection issues. Prestera v. Denny, 1 Va. App. 103, 336 S.E.2d 169, 1985 Va. App. LEXIS 70 (1985).

This section was inapplicable to civil proceeding under former § 20-61.1 . —

By its terms, this section applies only to criminal proceedings brought under Chapter 5 (§ 20-61 et seq.) of Title 20. The section is limited to the “person accused,” a criminal defendant. The appeal authorized by this section is from a “judgment of conviction,” a criminal judgment. Thus, this section had no application to a civil proceeding under former § 20-61.1 . Florence v. Roberts, 233 Va. 297 , 355 S.E.2d 316, 3 Va. Law Rep. 2397, 1987 Va. LEXIS 197 (1987).

Arrearage. —

Circuit court did not err when it relied on a contempt order to decide the date of retroactivity because the contempt order effectively decided the arrearage a husband owed; the determination of the husband’s arrearages as of that date became final on the parties because they did not appeal the contempt order. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

§ 20-69. Fees of officers.

The officers acting under this chapter shall be entitled to the same fees as are now or hereafter allowed in misdemeanor cases.

History. 1944, p. 212; Michie Suppl. 1946, § 1937c; 1974, c. 464.

§ 20-70. No warrant of arrest to issue.

Except as otherwise in this chapter provided, no warrant of arrest shall be issued by a magistrate against any person within the terms of this chapter, but all proceedings shall be instituted upon petition as aforesaid, provided that upon affidavit of the spouse or other person that there is reasonable cause to believe that the spouse or parent is about to leave the jurisdiction of the court with intent to desert the spouse, child or children, the court of, or any magistrate serving, the city or county may issue a warrant for the spouse or parent returnable before the court.

History. 1944, p. 211; Michie Suppl. 1946, § 1937b; 1974, c. 464; 1975, c. 644; 2008, cc. 551, 691.

The 2008 amendments.

The 2008 amendments by cc. 551 and 691 are identical and substituted “the court of, or any magistrate serving, the city” for “the court or any magistrate of the city” near the end.

CASE NOTES

Issuance of warrant in violation of this section renders it void. —

Where a proceeding for desertion and nonsupport was instituted by the issuance and execution of a warrant, in violation of this section, the warrant was void. The proceeding instituted was illegal from its inception, and a judgment based thereon was void. Diggs v. Commonwealth, 181 Va. 49 , 23 S.E.2d 788, 1943 Va. LEXIS 151 (1943).

§ 20-71. Temporary orders for support.

At any time before the trial, upon motion of the complainant, with notice to the defendant, the court may enter such temporary order as seems just, providing for the support of the neglected spouse or children, or both, pendente lite, and may punish for violation of the order as for contempt.

History. 1944, p. 212; Michie Suppl. 1946, § 1938; 1974, c. 464.

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

§ 20-71.1. Attorneys’ fees in proceedings under § 20-71.

In any proceeding by a spouse petitioning under § 20-71 before the juvenile and domestic relations district court or on appeal before a court of record, to be allowed support for himself or herself or the infant child or children of the defendant, the juvenile and domestic relations district court may direct the defendant, in addition to the allowance to the spouse and support and maintenance for the infant children, to pay to the spouse’s attorney, upon such terms and conditions and in such time as the court shall deem reasonable, an attorney’s fee deemed reasonable by the court for such services as said attorney before said court. Upon appeal of the matter to a court of record, the judge of the circuit court may direct that the defendant, in addition to the fees allowed to the spouse’s attorney by the juvenile and domestic relations district court, pay to the spouse’s attorney at such time and upon such terms and conditions as the judge deems reasonable, an attorney’s fee deemed reasonable by the court for such services of said attorney before said court of record, but in fixing said fee such court shall take into consideration the fee or fees directed to be paid by the court from which said appeal was taken.

History. 1950, p. 741; 1974, c. 464; 1975, c. 644.

Editor’s note.

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.01 Items included. Bryson.

CASE NOTES

Request for fees denied. —

Because the marital share of the parties’ business and marital residence was equally divided, because both parties contributed to the breakdown of the marriage, and both parties made the divorce contentious, the trial court did not abuse its discretion in denying wife’s request for attorney’s fees. Rekow v. Rekow, 2009 Va. App. LEXIS 180 (Va. Ct. App. Apr. 21, 2009).

§ 20-72. Probation on order directing defendant to pay and enter recognizance.

Before the trial, with the consent of the defendant, or at the trial on entry of a plea of guilty, or after conviction, instead of imposing the penalties hereinbefore provided, or in addition thereto, the judge, in his discretion, having regard to the circumstances of the case and to the financial ability or earning capacity of the defendant, shall have the power to make an order, directing the defendant to pay a certain sum or a certain percentage of his or her earnings periodically, either directly or through the court to the spouse or to the guardian, curator or custodian of such minor child or children, or to an organization or individual designated by the court as trustee, and to suspend sentence and release the defendant from custody on probation, upon his or her entering into a recognizance with or without surety, in such sum as the court may order and approve.

History. Code 1919, § 1939; 1932, p. 466; 1940, p. 476; 1952, c. 692; 1974, c. 464.

Law Review.

For survey of Virginia law on domestic relations for the year 1971-1972, see 58 Va. L. Rev. 1257 (1972).

Michie’s Jurisprudence.

For related discussion, see 2C M.J. Bail and Recognizance, § 2.

CASE NOTES

Effect of specific provision in divorce decree for allowance or denial of alimony. —

It is clear from §§ 20-79 and 20-121 that a support order of a juvenile and domestic relations court continues in full force and effect notwithstanding the entry by a court of record of a divorce decree that is silent as to support, but if a specific provision for allowance or denial of alimony is included in the final divorce decree, the jurisdiction of the juvenile and domestic relations court would cease under subsection (a) of § 20-79 . Werner v. Commonwealth, 212 Va. 623 , 186 S.E.2d 76, 1972 Va. LEXIS 219 (1972).

Collection of support payments. —

The fact that juvenile and domestic relations courts are particularly well equipped to supervise the collection of support payments from recalcitrant husbands is evidenced by the enactment of subsection (c) of § 20-79 , which authorizes courts of record to refer such matters to juvenile and domestic relations courts. Werner v. Commonwealth, 212 Va. 623 , 186 S.E.2d 76, 1972 Va. LEXIS 219 (1972).

§ 20-73. Condition of the recognizance.

The condition of the recognizance shall be such that if the defendant shall make his or her personal appearance in court upon such date as may be specified by the court, or whenever, in the meantime, he or she may be ordered so to do, and shall further comply with the terms of such order, or any subsequent modification or amendment thereof, then such recognizance shall be void, otherwise in full force and effect.

History. Code 1919, § 1939; 1932, p. 466; 1940, p. 477.

§ 20-74. Support orders to remain in effect until annulled; modification.

Any order of support or amendment thereof entered under the provisions of this chapter shall remain in full force and effect until annulled by the court of original jurisdiction, or the court to which an appeal may be taken; however, such order of support or terms of probation shall be subject to change or modification by the court from time to time, as circumstances may require, but no such change or modification shall affect or relieve the surety of his or her obligation under such recognizance, provided notice thereof be forthwith given to such surety. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party.

History. Code 1919, § 1939; 1932, p. 467; 1940, p. 477; 1975, c. 644; 1987, c. 649; 2004, c. 204.

The 2004 amendments.

The 2004 amendment by c. 204 inserted “in any court” in the last sentence.

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

CASE NOTES

Inapplicable to support ordered pursuant to divorce decree. —

This section does not confer authority to the circuit courts to modify child support decrees entered pursuant to § 20-107.2 .Aviles v. Aviles, 14 Va. App. 360, 416 S.E.2d 716, 8 Va. Law Rep. 2925, 1992 Va. App. LEXIS 297 (1992).

The court improperly retroactively modified a husband’s arrearage where it appeared that the reduction was based on payments made for the benefit of the children but the record was inadequate to support such a reduction. Commonwealth v. Branch, 1998 Va. App. LEXIS 525 (Va. Ct. App. Oct. 6, 1998).

Father could not be awarded a credit against his child support arrearage from the date that he assumed physical custody of the child at the mother’s request until he filed his petition for modification of his child support obligation as the parties had not entered into an agreement on child support, even though: (1) the transfer of custody of the child substituted for the Acree requirement of an agreement by the parties regarding permanent custody; (2) the mother would be unjustly enriched in the absence of the credit; and (3) such an award would not be detrimental to the child. Jones v. Davis, 43 Va. App. 9, 595 S.E.2d 501, 2004 Va. App. LEXIS 202 (2004).

Support order not annulled or modified by Kentucky divorce. —

Virginia support order was not annulled or modified where Kentucky divorce did not make provision for alimony to the wife, and where no language of that decree conflicted with the Virginia support decree. Jones v. Richardson, 320 F. Supp. 929, 1970 U.S. Dist. LEXIS 9863 (W.D. Va. 1970).

Marking a file “closed” did not annul previous child support order. —

Where judge in juvenile and domestic relations court marked a file “closed,” this notation did not have the effect of annulling a previous order for continuing child support since the court had no authority to disturb the support order without meeting the minimal criteria of procedural due process, i.e., reasonable notice and a fair opportunity to be heard. Brown v. Brown, 240 Va. 376 , 397 S.E.2d 837, 7 Va. Law Rep. 786, 1990 Va. LEXIS 131 (1990).

When a suit for divorce has been filed and spousal support is at issue, the district court is divested of jurisdiction to enter any further decrees or orders relating to support except to enforce its orders entered prior to an order of the circuit court. Martin v. Bales, 7 Va. App. 141, 371 S.E.2d 823, 5 Va. Law Rep. 208, 1988 Va. App. LEXIS 90 (1988).

§ 20-75. Procedure when accused outside territorial jurisdiction.

Whenever the accused is outside the territorial jurisdiction of the court, instead of requiring his or her arrest and personal appearance before the court, the court may allow the accused to accept service of the process or warrant and enter a written plea of guilty. The court may thereupon proceed as if the accused were present and enter such order of support as may be just and proper, requiring the accused to enter into the recognizance hereinbefore mentioned. For the purposes of this chapter the court may authorize the entering into of such recognizance outside the territorial jurisdiction of the court before such official of the place where the accused or his or her surety may be and under such conditions and subject to such stipulations and requirements as the court may direct and approve. The provisions of this chapter as to the entering into of recognizances outside the territorial jurisdiction of the court shall likewise apply to any renewal of any recognizance heretofore or hereafter entered into in any desertion and nonsupport case.

History. Code 1919, § 1939; 1932, p. 467; 1940, p. 477; 1975, c. 644.

§ 20-76. Repealed by Acts 1974, c. 464.

§ 20-77. When authority to suspend sentence may be exercised; deduction of certain time from sentence.

The authority of the court to suspend sentences under §§ 20-72 to 20-79 may be exercised at any time after conviction and before the completion of the sentence, and as often as the court may deem advisable and to the best interests of the parties, provided that such period or periods of time as may be actually served by the defendant shall be allowed against and deducted from the original sentence.

History. Code 1919, § 1939; 1932, p. 467; 1940, p. 477; 1974, c. 464.

§ 20-78. Continuance of failure to support after completion of sentence.

Any person sentenced under §§ 20-72 to 20-79 who, after the completion of such sentence, shall continue in his or her failure, without just cause, adequately to support his or her spouse or children, as the case may be, may again be sentenced on the original petition, as for a new offense, in the same manner and under like conditions as herein provided, and so on from time to time, as often as such failure or failures shall occur.

History. Code 1919, § 1939; 1932, p. 467; 1940, p. 478; 1974, c. 464.

§ 20-78.1. Effect of entry of support order in certain garnishment proceedings.

A judgment for arrearage, or an order or decree of support for a spouse or support and maintenance of a child or children entered under the provisions of this chapter or §§ 16.1-278.15 through 16.1-278.18, 20-103 and 20-107.1 through 20-109 may be enforced in any garnishment proceeding in which the liability is against the United States of America.
Except as otherwise provided herein, the provisions of Article 7 (§ 8.01-511 et seq.) of Chapter 18 of Title 8.01 shall govern such garnishment. Any garnishment under the provisions of this section shall continue until modified by the issuing court, or in the case of an arrearage, until the sum or sums of money found to be in arrears are paid in full.
The provisions of this section shall apply to arrearages accumulated prior to and after July 1, 1976.

History. 1976, c. 659; 1978, c. 736; 1980, c. 102; 1987, c. 597; 1991, c. 534; 1999, c. 577.

The 1999 amendment, in subsection A, inserted “A judgment for arrearage, or,” deleted “only after arrearage has been reduced to judgment” at the end of the subsection; in subsection B, inserted “modified by the issuing court, or in the case of an arrearage, until,” deleted “in the judgment of the court” following “to be in arrears,” and deleted “or 180 days have elapsed, whichever first occurs” following “are paid in full.”

Law Review.

For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

CASE NOTES

Judgment for contractual arrearages not support order. —

Where ex-wife brought garnishment proceeding against her ex-husband and the United States to enforce a judgment against her husband for arrearages under a property settlement agreement and to attach the husband’s Marine Corps retirement pay, the ex-wife’s prior judgment for arrearages was not based upon any arrearages in court-ordered support payments, but upon violations of a contractual obligation; thus the trial court’s ruling that the ex-wife’s judgment for contractual arrearages was not a court order for her support within the meaning of this section was correct, and it followed that a limitation of 25 percent applied in determining the amount of the ex-husband’s federal income that was subject to garnishment for enforcement of the judgment. Butler v. Butler, 221 Va. 1035 , 277 S.E.2d 180, 1981 Va. LEXIS 246 (1981).

CIRCUIT COURT OPINIONS

Effect of a judgment creditor’s death. —

Where a judgment creditor obtained a judgment against a judgment debtor for an arrearage in spousal support payments, the judgment debtor’s motion to quash a continuing garnishment order based on the judgment creditor’s death was denied because the arrearages were recoverable by the executrix of the judgment creditor’s estate. Brown v. Brown, 74 Va. Cir. 260, 2007 Va. Cir. LEXIS 273 (Chesapeake Oct. 11, 2007).

§ 20-78.2. Attorneys’ fees and interest on support arrearage.

The entry of an order or decree of support for a spouse or for support and maintenance of a child under the provisions of this chapter or §§ 20-107.1 through 20-109 shall constitute a final judgment for any sum or sums in arrears. This order shall also include an amount for interest on the arrearage at the judgment interest rate as established by § 6.2-302 unless the obligee, in a writing submitted to the court, waives the collection of interest; and may include reasonable attorneys’ fees if the total arrearage for support and maintenance, excluding interest, is equal to or greater than three months of support and maintenance.

History. 1983, c. 488; 1987, c. 190; 1995, c. 483; 2005, c. 880.

Editor’s note.

Effective October 1, 2010, “§ 6.2-302 ” was substituted for “§ 6.1-330.54” to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

The 2005 amendments.

The 2005 amendment by c. 880 added “and may include reasonable attorneys’ fees if the total arrearage for support and maintenance, excluding interest, is equal to or greater than three months of support and maintenance” at the end of the last sentence.

CASE NOTES

Interest mandatory. —

Trial court properly ordered a husband to pay interest on a spousal support arrearage. Interest is mandatory under § 20-78.2 .Taylor v. Taylor, 2006 Va. App. LEXIS 265 (Va. Ct. App. June 13, 2006).

Judgment rate of interest. —

Nothing in the code section required a final order to award interest on arrearages. Thus, the code section provides a mechanism for treating an order that sets arrearages as a final judgment for interest purposes. Deluca v. Deluca, 2019 Va. App. LEXIS 122 (Va. Ct. App. May 21, 2019).

Wife not barred from collecting interest. —

Wife was not barred from collecting interest that was due from arrearage in support payments although she did not provide the trial court with a computation of interest due; this section places that burden on the moving party “upon instruction of the court,” and record did not show that the trial court requested the wife to make such a computation. Chattin v. Chattin, 245 Va. 302 , 427 S.E.2d 347, 9 Va. Law Rep. 1000, 1993 Va. LEXIS 25 (1993).

While a mother was not entitled to prejudgment interest on an established child support arrearage owed by the father because she failed to request the same as required by § 20-78.2 , that failure did not extend to postjudgment interest on the arrearage. Scagnelli v. Hart, 2006 Va. App. LEXIS 172 (Va. Ct. App. May 9, 2006).

Trial court did not err in awarding interest on a child support arrearage, although neither appellee mother nor the Division of Child Support Enforcement requested interest, because the statutory interest provision, § 20-78.2 , mandated an award of interest unless the mother waived it. Barrett v. Commonwealth, 2011 Va. App. LEXIS 246 (Va. Ct. App. July 26, 2011).

Not applicable where property settlement agreement was controlling. —

Because the parties’ property settlement agreement was the controlling document in their litigation, the former wife’s reliance on various statutory provisions governing an award of attorney’s fees was misplaced. Shea v. Spinicci, 2013 Va. App. LEXIS 356 (Va. Ct. App. Dec. 3, 2013).

Child support award not an arrearage. —

Trial court erred by awarding prejudgment interest on the retroactive child support award because award was not an arrearage because it was not unpaid or overdue when the trial court ordered the husband to pay it. It was not until the pendente lite hearing on November 27, 2017, that the husband was actually ordered to pay any amount of child support, making it impossible for him to be in arrears for an amount not determined or ordered. Wills v. Wills, 72 Va. App. 743, 853 S.E.2d 536, 2021 Va. App. LEXIS 20 (2021).

§ 20-79. Effect of divorce proceedings.

In any case where an order has been entered under the provisions of this chapter, directing either party to pay any sum or sums of money for the support of his or her spouse, or concerning the care, custody or maintenance of any child, or children, the jurisdiction of the court which entered such order shall cease and its orders become inoperative upon the entry of a decree by the court or the judge thereof in vacation in a suit for divorce instituted in any circuit court in this Commonwealth having jurisdiction thereof, in which decree provision is made for support and maintenance for the spouse or concerning the care, custody or maintenance of a child or children, or concerning any matter provided in a decree in the divorce proceedings in accordance with the provisions of § 20-103 .
In any suit for divorce, the court in which the suit is instituted or pending, when either party to the proceedings so requests, shall provide in its decree for the maintenance, support, care or custody of the child or children in accordance with Chapter 6.1 (§ 20-124.1 et seq.), support and maintenance for the spouse, if the same be sought, and counsel fees and other costs, if in the judgment of the court any or all of the foregoing should be so decreed.
Enforcement of orders. In any suit for divorce or suit for maintenance and support, the court may after a hearing, pendente lite, or in any decree of divorce a mensa et thoro, decree of divorce a vinculo matrimonii, final decree for maintenance and support, or subsequent decree in such suit, transfer to the juvenile and domestic relations district court the enforcement of its orders pertaining to support and maintenance for the spouse, maintenance, support, care and custody of the child or children.Transfer of case for modification. After the entry of a decree of divorce a vinculo matrimonii the court may transfer to the juvenile and domestic relations district court any other matters pertaining to support and maintenance for the spouse, maintenance, support, care and custody of the child or children on motion by either party, and may so transfer such matters before the entry of such decree on motion joined in by both parties. A court shall not (i) transfer a case for modification to the juvenile and domestic relations district court in the absence of a motion by either party or (ii) require a provision for transfer of matters for modification to the juvenile and domestic relations district court as a condition of entry of a decree of divorce a vinculo matrimonii.Change of venue. In the transfer of any matters referred to herein, the court may, upon the motion of any party, or on its own motion, and for good cause shown, transfer any matters covered by said decree or decrees to any circuit court or juvenile and domestic relations district court within the Commonwealth that constitutes a more appropriate forum. An appeal of an order by such juvenile and domestic relations district court which is to enforce or modify the decree in the divorce suit shall be as provided in § 16.1-296.

History. Code 1919, § 1939; 1940, p. 478; 1960, c. 76; 1964, c. 636; 1970, c. 459; 1974, cc. 464, 473; 1975, c. 644; 1976, c. 345; 1977, c. 71; 1988, c. 502; 1994, c. 769; 2018, c. 254.

Cross references.

As to transfer of venue in suits for enforcement of orders pertaining to support, maintenance, care or custody of juvenile, see § 16.1-243. As to failure to comply with support obligation, see § 16.1-278.16. As to pendente lite support, see § 16.1-278.17.

Editor’s note.

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provide that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

The 2018 amendments.

The 2018 amendment by c. 254, in subsection (c), added the catch phrase at the beginning of all three paragraphs; in the second paragraph, added the last sentence; in the third paragraph, inserted “circuit court or” in the first full sentence.

Law Review.

For comment, “Lack of Due Process in Virginia Contempt Proceeding for Failure to Comply with Order for Support and Alimony,” see 4 U. Rich. L. Rev. 128 (1969).

For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976).

For comment, “The Uniform Child Custody Jurisdiction Act in Virginia,” see 14 U. Rich. L. Rev. 435 (1979).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

For survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

Michie’s Jurisprudence.

For related discussion, see 5A M.J. Costs, § 3.

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.01 Items included. Bryson.

CASE NOTES

The intent was clearly that only Virginia divorce decrees nullified Virginia support orders. Jones v. Richardson, 320 F. Supp. 929, 1970 U.S. Dist. LEXIS 9863 (W.D. Va. 1970).

Construction with other statutes. —

Although § 16.1-278.19 only applies to proceedings in juvenile and domestic relations district courts, the statute creates a discretionary attorney fees regime, authorizing awards as the court deems appropriate; despite differences in the precise statutory language used, the basis for an award under § 16.1-278.19 is indistinguishable from the basis for an award under §§ 20-79(b) and 20-99(6) as the court has interpreted those statutes, and thus trial court’s erroneous citation was harmless. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

Support order continues in effect where divorce decree silent as to support. —

It is clear from this section and § 20-121 that a support order of a juvenile and domestic relations court continues in full force and effect notwithstanding the entry by a court of record of a divorce decree that is silent as to support, but if a specific provision for allowance or denial of alimony is included in the final divorce decree, the jurisdiction of the juvenile and domestic relations court would cease under subsection (a) of this section. Werner v. Commonwealth, 212 Va. 623 , 186 S.E.2d 76, 1972 Va. LEXIS 219 (1972).

“Confirm” not synonymous with “incorporate.” —

An order which “ratified, affirmed and approved” a Juvenile Court Custody Order did not constitute an adjudication of child custody or support issues, because the language “approved, ratified and confirmed” was not synonymous with “affirm, ratify and incorporate.” The former merely approved the order while the latter makes it a part of the divorce decree and enforceable as such. Thus, while the trial court took cognizance of the existing order of the juvenile and domestic court addressing custody and support, the court did not exercise jurisdiction over such issues, and the resulting silence continued the preexisting order of the juvenile and domestic court in full force and effect without implicating subsection (a) of this section. Rose v. Bartlett, 2000 Va. App. LEXIS 438 (Va. Ct. App. June 13, 2000).

Transfer not divestment of continuing jurisdiction. —

A “transfer” of “any other matters pertaining to support and maintenance . . . and custody” to the juvenile and domestic relations district court pursuant to subsection (c) conveys concurrent jurisdiction on the juvenile and domestic relations district court to hear those matters, but the transfer does not divest the circuit court of its continuing jurisdiction to consider those issues, should it exercise its discretion to do so. Accordingly, the circuit court had the authority to reinstate the case on its docket and to consider the motions to modify child support and visitation. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

This section grants authority to a circuit court to transfer to a juvenile and domestic relations court matters pertaining to support and maintenance for the spouse after the entry of a divorce decree; a circuit court’s transfer of such matters creates concurrent jurisdiction in each court. Romine v. Romine, 22 Va. App. 760, 473 S.E.2d 99, 1996 Va. App. LEXIS 531 (1996).

Circuit court erred in holding that it lacked jurisdiction over the rules to show cause by transferring enforcement of support to the juvenile and domestic relations district court, which establishes concurrent jurisdiction in the juvenile and domestic relations district court, however, the concurrent jurisdiction afforded it discretion to leave the matter to the juvenile and domestic relations district court. Dorer v. Siddiqui, 2002 Va. App. LEXIS 165 (Va. Ct. App. Mar. 19, 2002).

Transfers from one circuit court to another. —

As subsection (c) of § 20-79 states that a circuit court may transfer the enforcement of its child support orders to a juvenile and domestic relations district court, but is silent regarding transfers to another circuit court, it necessarily excludes transfers to such courts. Williams v. Williams, 61 Va. App. 170, 734 S.E.2d 186, 2012 Va. App. LEXIS 387 (2012).

Bristol Circuit Court did not err by dismissing a husband’s cases because only the Grayson Circuit Court acquired the authority to exercise jurisdiction in the cases; subsection J of § 16.1-296 manifested an intent that, after a case had been transferred to a juvenile court like the husband’s cases, only by taking an appeal of that case to the circuit court of the same locality did the circuit court acquire the authority to exercise its subject matter jurisdiction. Barrett v. Commonwealth of Va., Dep't of Soc. Servs., Div. of Child Support Enforcement, 2015 Va. App. LEXIS 174 (Va. Ct. App. May 19, 2015).

A circuit court’s assumption of jurisdiction over a support matter subsequent to its transfer pursuant to this section divests a juvenile and domestic relations court of jurisdiction. Romine v. Romine, 22 Va. App. 760, 473 S.E.2d 99, 1996 Va. App. LEXIS 531 (1996).

Circuit court had authority to reinstate the case on its docket and to entertain the parties’ motions to enforce visitation rights and to modify child support after having transferred “all matters . . . pertaining to child support, visitation rights [and] custody of the minor children” to the juvenile and domestic relations district court pursuant to subsection (c). Although a final divorce decree had been entered, when the case was reinstated on the docket of the circuit court, the case was “pending” for consideration of those matters over which the circuit court had continuing jurisdiction. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

Reacquisition of jurisdiction by district court. —

Pursuant to § 20-79 , a district court’s jurisdiction over child and spousal support ceased and its support order became inoperative upon entry of a circuit court’s pendente lite support order. However, once the circuit court granted the former husband’s motion for a voluntary nonsuit, the district court’s jurisdiction and the operation of its support order automatically resumed by operation of law. Ipsen v. Moxley, 49 Va. App. 555, 642 S.E.2d 798, 2007 Va. App. LEXIS 142 (2007).

Pursuant to § 20-79 , where a district court exercised its jurisdiction over child and spousal support issues and “lost” it only upon the entry of a temporary support order in a proceeding that ended in a nonsuit, this places the parties back to where they were before the suit was filed; the district court’s support order automatically resumes upon entry of the nonsuit order. Ipsen v. Moxley, 49 Va. App. 555, 642 S.E.2d 798, 2007 Va. App. LEXIS 142 (2007).

When the decree of divorce failed to specify spousal support, the court had jurisdiction to award support to the wife at a level awarded prior to the divorce decree. Reid v. Reid, 24 Va. App. 146, 480 S.E.2d 771, 1997 Va. App. LEXIS 61 (1997).

Reservation of issue. —

As a wife filed no pleadings nor timely exceptions to the commissioner’s report, she made no cognizable claim for spousal support or equitable distribution, and the trial court thus erred in reserving these issues on her oral motion. Bowden v. Bowden, 2003 Va. App. LEXIS 546 (Va. Ct. App. Oct. 28, 2003).

Jurisdiction properly exercised. —

Trial court had subject matter jurisdiction over a child support matter as, in accordance with § 20-79 , the final decree transferred all matters relating to the support of the child to the appropriate juvenile and domestic relations court having jurisdiction for the enforcement or modification of the decrees. Kolmetz v. Hitchcock, 2013 Va. App. LEXIS 133 (Va. Ct. App. Apr. 30, 2013).

Discretion of court as to counsel fees. —

This section recognizes that the amount of counsel fees is a matter for the exercise of the sound discretion of the trial court. Ingram v. Ingram, 217 Va. 27 , 225 S.E.2d 362, 1976 Va. LEXIS 236 (1976).

Because a court’s decision as to whether to decline to exercise its jurisdiction under section § 20-146.18 necessarily concerned child custody matters, the discretionary authority to award attorney’s fees and costs pursuant to this section and § 20-99 extended to proceedings under § 20-146.18 . Thus, a trial court had the authority to award a mother attorney’s fees under §§ 20-79 and 20-99 . Tyszcenko v. Donatelli, 53 Va. App. 209, 670 S.E.2d 49, 2008 Va. App. LEXIS 569 (2008).

In confining its decision to consideration of whether attorney’s fees were warranted under the prevailing-party standard in subsection A of § 20-146.33 , the trial court clearly did not consider all the circumstances of the parties or the equities of the case. Hence, further factual resolution was required before it could be properly determined that an award of attorney’s fees to a mother was warranted under the equitable standard set forth in §§ 20-79 and 20-99 . Tyszcenko v. Donatelli, 53 Va. App. 209, 670 S.E.2d 49, 2008 Va. App. LEXIS 569 (2008).

Custodial parent who was awarded continuing child support was improperly awarded attorney fees and costs since the award was based solely on the improper ground that the parent prevailed, with no consideration of the circumstances of the parties or the equities of the entire case. Mayer v. Corso-Mayer, 62 Va. App. 713, 753 S.E.2d 263, 2014 Va. App. LEXIS 6 (2014).

Trial court did not abuse its discretion in denying attorney fees and costs to a husband because although the husband claimed that the wife’s discovery tactics were abusive and costly and warranted a fee award, the line separating discovery abuse and legitimate trial tactics was often narrow, and the differentiation was best left to the sound discretion of the trial court where the tactics were employed. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Circuit court properly denied a wife’s request for attorney’s fees because, although wife earned less money than husband, she received half of all marital property in the equitable distribution portion of the hearing, the husband was ordered to pay her spousal support, nothing in the record indicated that husband unnecessarily prolonged the litigation, the case contained many complex and interdependent issues, the wife’s behavior was among the circumstances and factors that contributed to the dissolution of the marriage, and Virginia law consistently adhered to the “American Rule,” under which attorneys’ fees were not recoverable by a prevailing party in the absence of a specific contractual or statutory provision to the contrary. Scalzott v. Scalzott, 2018 Va. App. LEXIS 97 (Va. Ct. App. Apr. 17, 2018).

Discretion to apportion guardian ad litem fees. —

Trial court did not abuse its discretion under §§ 20-79(b) and 20-99(5) in ordering that a husband be responsible for 80 percent of a guardian ad litem’s bill for $29,403, given the husband’s demand that a replacement guardian be appointed and the numerous hearings and hours incurred by the guardian. Evans v. Evans, 2010 Va. App. LEXIS 261 (Va. Ct. App. June 29, 2010).

Trial court did not abuse its discretion in ordering that a father be responsible for the children’s therapy expenses and the bill of the guardian ad litem based on the disproportionate amount of money that the parties made because the mother earned approximately $40,000 per year, and the father earned approximately $176,000 per year. Olson v. Conlon, 2010 Va. App. LEXIS 374 (Va. Ct. App. Sept. 21, 2010).

Mother waived her claim of error in the apportionment of guardian ad litem fees in a change in physical custody dispute as although the mother stated her objection in a document of objections to the final order, she did not argue or obtain a ruling from the trial court on the issue; the mother did not argue that the exceptions to Va. Sup. Ct. R. 5A:18 for good cause or to meet the ends of justice applied, and the record did not reflect any reason to invoke the good cause or ends of justice exceptions since guardian ad litem fees could properly be assigned as costs to the parties under §§ 20-79(b) , 20-99(5) , and 17.1-600 . Turpin v. McGowan, 2012 Va. App. LEXIS 125 (Va. Ct. App. Apr. 24, 2012).

Trial court did not abuse its discretion in awarding the wife attorney fees because it considered all of the relevant circumstances of the parties; the trial court considered: (1) the wife’s plea in bar and the husband’s responsive pleading, (2) oral argument and witness testimony relating to the intent of the parties in entering the post-nuptial agreement, and (3) the wife’s motion for reconsideration. Allen v. Allen, 66 Va. App. 586, 789 S.E.2d 787, 2016 Va. App. LEXIS 235 (2016).

Trial court’s award of $11,010.85 in guardian ad litem fees, and apportionment of $10,010.85 of the cost to the mother was reasonable because the mother’s actions unnecessarily increased the amount of time and expense necessary to conclude the case; the parties were required to attend four separate hearings at the mother’s request each concerning the same issue regarding her refusal to undergo an independent psychological evaluation and her repeated, unsuccessful attempts to convince the court to dispense with the requirement; the mother ultimately chose to rest her case rather than submit to an evaluation; and the guardian ad litem presented an exhibit detailing the 40 hours that he spent on the case during the year and a half that it was pending. Sims-Bernard v. Bernard, 2018 Va. App. LEXIS 13 (Va. Ct. App. Jan. 23, 2018).

When failure to award such fees is abuse of discretion. —

Where the trial court finds the wife needs and is entitled to maintenance and support and the husband has the financial ability to meet those needs, its failure to award counsel fees to her is an abuse of discretion. Thomas v. Thomas, 217 Va. 502 , 229 S.E.2d 887, 1976 Va. LEXIS 312 (1976).

Guardian ad litem fees appropriate. —

On appeal from an award of primary physical custody of the children to the father, the mother’s contention that the circuit court erred in ordering her to pay one-half of the guardian ad litem’s fees was improper under subsection (b) of § 20-79 , subdivision 5 of § 20-99 , and § 14.1-177 because, while she clearly made less money than father, she had the ability to pay one-half the cost of the guardian ad litem’s fee, notwithstanding the resulting hardship and sacrifice associated with it. Gudino v. Gudino, 2011 Va. App. LEXIS 327 (Va. Ct. App. Nov. 1, 2011).

No error in fees award where counsel provided seriatim to wife. —

Where the trial judge fully considered all aspects of the wife’s request for attorney’s fees, and awarded only an amount that reflected those fees deemed reasonable, it was of no import that the payments were divided between two attorneys where legal counsel was provided seriatim to the wife. Alphin v. Alphin, 15 Va. App. 395, 424 S.E.2d 572, 9 Va. Law Rep. 624, 1992 Va. App. LEXIS 296 (1992).

Award of fees for costs incurred in out-of-state suit error. —

Trial judge erred in awarding the wife fees incurred in defense of the husband’s out-of-state divorce suit. Poliquin v. Poliquin, 12 Va. App. 676, 406 S.E.2d 401, 7 Va. Law Rep. 2943, 1991 Va. App. LEXIS 141 (1991).

Fees where property settlement agreement was controlling. —

Where a trial court exercised its discretion to deny a former wife’s motion for a continuance the trial court had no obligation to specifically rule on the motivations underlying the request for a continuance, as if they were discrete claims for relief. Case v. Case, 2004 Va. App. LEXIS 244 (Va. Ct. App. May 25, 2004).

Collection of support payments. —

The fact that juvenile and domestic relations courts are particularly well equipped to supervise the collection of support payments from recalcitrant husbands is evidenced by the enactment of subsection (c) of this section, which authorizes courts of record to refer such matters to juvenile and domestic relations courts. Werner v. Commonwealth, 212 Va. 623 , 186 S.E.2d 76, 1972 Va. LEXIS 219 (1972).

Pendente lite orders could not be enforced through motion to compel. —

Consent pendente lite order and an injunction order were pendente lite orders that, by their very definition, were only to remain in force during the pendency of the divorce litigation, and as the final decree failed to expressly reserve the pendente lite orders at issue, the final decree superseded and disposed of them; accordingly, they could not be enforced through a motion to compel. Reid v. Reid, 2017 Va. App. LEXIS 224 (Va. Ct. App. Aug. 29, 2017).

Attorney fees proper. —

Trial court did not abuse its discretion in awarding the mother attorney fees, given that she prevailed below, she originally withdrew her motion to increase child support based on the father’s request, the father had a history of noncompliance in paying his support obligations and he was the cause of the current litigation, and he did not produce his affidavit supporting attorney fees as the mother did. Wilson v. Slivka, 2018 Va. App. LEXIS 85 (Va. Ct. App. Apr. 3, 2018).

Attorney fees denied. —

Circuit court considered mother’s gainful employment and ability to pay her own attorney fees, which were not unreasonable, and mother did not prevail in many of the temporary and final rulings in this matter; thus, the circuit court did not abuse its discretion in denying mother’s request for attorney fees. Armstrong v. Armstrong, 2019 Va. App. LEXIS 258 (Va. Ct. App. Nov. 12, 2019).

CIRCUIT COURT OPINIONS

Exception for concurrent jurisdiction not present. —

Juvenile and domestic relations (J&DR) court was without authority to enter a protective order as between two divorcing parties because a circuit court had previously acquired jurisdiction and entered an order addressing support, custody, and visitation and none of the exceptions allowing an exercise of concurrent jurisdiction by the J&DR court applied. Wyrick v. Wyrick, 61 Va. Cir. 74, 2003 Va. Cir. LEXIS 9 (Roanoke County Jan. 21, 2003).

Court lacked authority to transfer. —

Circuit Court for the City of Norfolk could not transfer a case to the Norfolk Juvenile and Domestic Relations District Court or the Circuit Court of the City of Chesapeake after finding that the City of Norfolk Circuit Court did not have subject matter jurisdiction since: (1) § 16.1-297 allowed the Circuit Court for the City of Norfolk to remand a case to the Norfolk Juvenile and Domestic Relations District Court upon the rendition of final judgment upon an appeal, but the parties’ motions to amend child and spousal support were not before the circuit court on appeal and the circuit court’s order was not a final judgment; (2) § 20-79(c) did not apply as the circuit court was not making an order regarding support; and (3) § 20-88.49 had been construed as a venue statute. Cunningham v. Cunningham, 86 Va. Cir. 202, 2013 Va. Cir. LEXIS 10 (Norfolk Jan. 24, 2013).

Husband ordered to pay portion of wife’s attorney fees. —

In a divorce action, the wife was awarded attorney fees in the amount of $20,000, and the husband was order to pay 25% of the attorney fees; the husband’s desire to litigate greatly exceeded the wife’s, and the wife’s attorney’s hours and hourly rate were not unreasonable. O'Donnell v. O'Donnell, 59 Va. Cir. 1, 2002 Va. Cir. LEXIS 122 (Loudoun County Jan. 8, 2002).

Discretion of court as to counsel fees. —

Since the surrounding circumstances did not dictate that attorney fees be awarded to the wife since it would be unreasonable to do so given the issues involved, the wife’s motion for attorney fees had to be denied. Lewis v. Lewis, 57 Va. Cir. 271, 2002 Va. Cir. LEXIS 205 (Warren County Jan. 10, 2002).

Award of the wife’s attorney fees and costs was appropriate because the husband had significantly more income than the wife and with respect to the costs of litigation, there appeared to have been issues with discovery and lack of responsiveness on the part of the husband that increased the wife’s attorney fees. Because the parties’ settlement agreement limited an award of attorney fees and costs to those related to custody, visitation, and the child support, the court found evidence of fees and costs of $21,181 for those issues, and reduced the amount by 30%, equal to the wife’s income percentage. Tayyab v. Khan, 106 Va. Cir. 148, 2020 Va. Cir. LEXIS 197 (Loudoun County Oct. 19, 2020).

Wife estimated that the portion of fees pertaining to litigation was $10,000.00 and given the experience of the court in equitable distribution cases and the facts of this case, that sum was entirely reasonable; though the final decree of divorce was to be entered on a no fault basis, for the purposes of an award of attorney fees, the husband had an overwhelming degree of fault in precipitating the end of the marriage, and the wife was awarded $10,000 in fees. Botos v. Botos, 2021 Va. Cir. LEXIS 47 (Roanoke County Mar. 16, 2021).

Attorney fees denied. —

Since a wife did not request an award of attorney fees as required by subsection (b) of § 20-79 , she was not entitled to such an award. Capco v. Capco, 2005 Va. Cir. LEXIS 263 (Loudoun County Dec. 5, 2005).

Trial court in a divorce case declined each party’s invitation to shift attorney fees to the other party because the court considered the circumstances and equities of the entire case and found that equity counseled a ruling wherein each party paid their own fees. Specifically, the court considered that each party was able to pay their attorney given the financial position of the parties, that acts by both parties prolonged the litigation, and that each party chose the lawyers and trial strategy that each party desired. Dwoskin v. Dwoskin, 2021 Va. Cir. LEXIS 40 (Fairfax County Mar. 5, 2021).

§ 20-79.1. Enforcement of support orders; income deduction; penalty for wrongful discharge.

History. 1982, c. 298; 1983, c. 481; 1985, c. 488; 1986, c. 594; 1987, cc. 658, 706; 1988, c. 906; 1990, c. 896; 1991, c. 534; 1997, cc. 648, 663; 1998, c. 727; 2018, c. 707; 2020, c. 722.

Cross references.

As to priority of orders to withhold and deliver property incident to support orders, see § 63.2-1929 .

Editor’s note.

Acts 2020, c. 722, cl. 3 provides: “That nothing in this act shall be construed to define or redefine ‘independent contractor’ under the common law or for any purpose other than the withholding of income of an independent contractor for the payment of a support obligation.”

The 2018 amendments.

The 2018 amendment by c. 707, in subsection A, inserted a comma following “§ 20-79.2 ” in the first sentence and redesignated former clauses (i) and (ii) as clauses (a) and (b) in the fourth sentence; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 722 inserted a new subsection A and redesignated accordingly; in subsection B, deleted “The terms ‘employer’ and ‘income’ shall have the meanings prescribed in § 63.2-1900 ” following the first sentence and substituted “on the basis of” for “based on” and “that” for “which” in the last sentence; in subsection C, inserted “or other income” in the first paragraph in the last sentence; in subsection F, inserted “or independent contractor” in the penultimate sentence; in subsection J, substituted “If the employee is not an independent contractor, the” for “The” in the first sentence and made stylistic changes.

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Parent and Child, § 4.

CASE NOTES

Authority lacking to order payroll deductions. —

Where order did not direct husband to pay support, but rather simply amended the terms of the parties’ contract, which was not incorporated in the divorce decree, this section did not apply. The statute does not provide for payroll deduction based on contracts, or amendments to contracts, even if signed by a judge. Therefore, the court did not have authority to order payroll deduction. Farber v. Farber, 1995 Va. App. LEXIS 1 (Va. Ct. App. Jan. 3, 1995).

CIRCUIT COURT OPINIONS

Modification of spousal support. —

Wife was entitled to a modification of spousal support; the increase took into account the somewhat questionable reduction in income of the wife as well as the increase in the cost for the wife to have the standard of living she agreed to in 1999 with spousal support of $3,000.00 per month. Ramberg v. Ramberg, 2009 Va. Cir. LEXIS 109 (Loudoun County Nov. 3, 2009).

§ 20-79.2. Immediate income deduction; income withholding.

For the purposes of this section, the terms “employer” and “income” shall have the same meanings ascribed to them in § 63.2-1900 .
Every initial order entered on or after July 1, 1995, directing a person to pay child support shall include a provision for immediate withholding from the income of the obligor for the amount of the support order, plus an amount for the liquidation of arrearages, if any, unless the obligor and either the obligee or the Department on behalf of the obligee, agree in writing to an alternative payment arrangement or one of the parties demonstrates and the court finds good cause for not imposing immediate withholding. In determining whether good cause is shown, the court shall consider the obligor’s past financial responsibility, history of prior payment under any support order, and any other matter that the court considers relevant to the likelihood of payment in accordance with the support order. An alternative payment arrangement may include but is not limited to, a voluntary income assignment pursuant to § 20-79.1 or 63.2-1945 .An order that modifies an initial order may include a provision for immediate income withholding.The total amount withheld shall not exceed the maximum amount permitted under § 34-29 .A withholding order issued to an obligor’s employer pursuant to this section shall conform to § 20-79.3 . The rights and obligations of the employer with respect to the order are set out in § 20-79.3 . The order shall direct the employer to forward payments to the Department for recording and disbursement to the obligee, or as otherwise required by law. The Department shall not charge a fee for recording and disbursing payments when it is providing support enforcement services to the obligee pursuant to § 63.2-1904 or 63.2-1908 .

History. 1988, c. 906; 1990, cc. 836, 896; 1991, c. 534; 1995, c. 714; 1998, c. 727; 2020, c. 722.

Cross references.

As to priority of orders to withhold and deliver property incident to support orders, see § 63.2-1929 .

Editor’s note.

Effective October 1, 2002, the references to former Title 63.1 were substituted with references to Title 63.2 to conform with the recodification of Title 63.1 by Acts 2002, c. 747.

The 2020 amendments.

The 2020 amendment by c. 722 inserted subsection A and redesignated the rest as subsection B; in subsection B, substituted “that” for “which” and made stylistic changes.

§ 20-79.3. Information required in income deduction order.

For the purposes of this section, the terms “employee,” “employer,” “income,” and “independent contractor” shall have the same meanings ascribed to them in § 63.2-1900 .
Orders for withholding from the income of an employee or independent contractor shall state and include the following:
1. The name and correct social security number of the obligor and the name and correct address of the payee;
2. That the employer shall withhold and pay out of the disposable income as defined in § 63.2-100 , a single monetary amount or the maximum amount permitted under § 34-29 , whichever is less, for each regular pay period of the obligor and such payment may be by check. If the employee is an independent contractor, then the order shall state that the employer shall withhold and pay out of the obligor’s income a single monetary amount or the maximum amount permitted under § 34-29 , whichever is less, for each instance of compensation of the obligor, once the aggregate amount of remuneration reaches $600 or more in a calendar year, and such payment may be by check;
3. That the income deduction shall begin with the next regular pay period of the obligor following service of the order on the employer, and payment shall be made at regular intervals consistent with the pay periods of the obligor, or, if the obligor is an independent contractor, the order shall begin with the next instance of compensation of the obligor, and payment shall be made at each instance of compensation of the obligor;
4. A statement of the maximum percentage under § 34-29 that may be withheld from the obligor’s disposable income;
5. That, to the extent required by the provisions for health care coverage contained in the order, the employer shall (i) enroll the employee, the employee’s spouse or former spouse, and the employee’s dependent children listed in the order as covered persons in a group health insurance plan or other similar plan providing health care services or coverage offered by the employer, without regard to enrollment season restrictions, if the subject spouse, former spouse, or children are eligible for such coverage under the employer’s enrollment provisions and (ii) deduct any required premiums from the employee’s income to pay for the insurance. If more than one plan is offered by the employer, the spouse, former spouse, or children shall be enrolled prospectively in the insurance plan in which the employee is enrolled or, if the employee is not enrolled, in the least costly plan otherwise available. The employer shall also enroll the children of an employee in the appropriate health coverage plan upon application by the children’s other parent or legal guardian or upon application by the Department of Medical Assistance Services. In each case that is being enforced by the Department of Social Services, the employer shall respond to such orders by advising the Department in which plan the children are enrolled or if the children are ineligible for any plan through the employer. The order to the employer shall specify either support withholdings or insurance premium deductions as having priority for the duration of the order in the event the maximum total deduction permitted at any time by § 34-29 is insufficient to fully cover both; the employer shall consider and direct insurance premium deductions and support withholdings the same for purposes of § 34-29. The employer shall not be held liable for any medical expenses incurred on behalf of the spouse, former spouse, or dependent children because of the employer’s failure to enroll the spouse, former spouse, or dependent children in a health care plan after being directed to do so by a court or the Department. The employer shall not be obligated to subsequently make or change such enrollment if the group health insurance plan or other factors change after the spouse’s, former spouse’s, or child’s eligibility or ineligibility for coverage is initially determined in response to the order for withholding. However, the employer shall not disenroll such children unless the employer (i) is provided satisfactory written evidence that such court or administrative order is no longer in effect, (ii) is provided satisfactory written evidence that the children are or will be enrolled in a comparable health coverage plan that will take effect not later than the effective date of such disenrollment, or (iii) has eliminated family health coverage for all of its employees. A one-time fee of no more than $5 may be charged by the employer to the employee for the administration of this requirement;
6. That a fee of $5 for each reply or remittance on account of the obligor may be charged by the employer and withheld from the obligor’s income in addition to the support amount to be withheld; however, child support withholding amounts collected from unemployment insurance benefits shall not be subject to this fee;
7. That the order is binding upon the employer and obligor and withholding is to continue until further notice by order of the court or the Department is served, or the obligor is no longer employed, whichever occurs first;
8. That the order shall have priority over any other types of liens created by state law against such income, except that if there is more than one court or administrative order for withholding for support against an obligor, the employer shall prorate among the orders based upon the current amounts due pursuant to more than one judicial or administrative order or a combination thereof, with any remaining amounts prorated among the accrued arrearages, if any, to the extent that the amounts withheld, when combined, do not exceed the maximum limits imposed under § 34-29 as specified in the order being honored;
9. That the obligor’s rights are protected pursuant to § 63.2-1944 and that no employer shall discharge any employee, take disciplinary action against an employee, or terminate a contract with or refuse to employ a person by reason of the fact that his income has been made subject to a deduction pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 or § 20-79.1 or 20-79.2 and an employer who discharges or takes disciplinary action against an employee or terminates a contract with or refuses to employ any person because of an order for withholding under these sections shall be liable for a civil fine of not more than $1,000;
10. The address to which the withholding is to be sent at the Department of Social Services and the case number, if available;
11. That the employer shall be liable for payments that he fails to withhold or mail as specified in the order;
12. That employers shall remit payments on each regular pay date of the obligor, or instance of compensation if the obligor is an independent contractor, or, if electronic funds transfer is used, within four days of the pay date, directly to the Division of Child Support Enforcement for disbursement. All employers with at least 100 employees and all payroll processing firms with at least 50 clients shall remit payments by electronic funds transfer;
13. That the employer shall be deemed to have complied with the order by (i) mailing on each regular pay date of the obligor, or instance of compensation if the obligor is an independent contractor, to the Department, by first-class mail, any amount required to be deducted or (ii) submitting such amounts by electronic funds transfer transmitted within four days of the obligor’s regular pay date or instance of compensation;
14. That the employer and obligor shall notify the Department promptly when the obligor terminates employment and shall provide the last known address of the obligor and name and address of the new employer, if known;
15. That amounts withheld from multiple employees identified as such by (i) amount, (ii) name, (iii) social security number, (iv) case number if provided in the order, and (v) date payment was withheld from obligor’s income may be combined into a single payment when payable to the same payee;
16. No order or directive shall require employers of 10,000 or more employees to make payments other than by combined single payment to the Department’s central office in Richmond, without the employer’s express written consent, unless the order is from a support enforcement agency outside the Commonwealth;
17. Payment pursuant to an order issued under this section shall serve as full acquittance of the employer under any contract of employment;
18. Notice that any employer who fails to timely withhold payments pursuant to this section shall be liable for any amount not timely withheld;
19. That the employer shall provide to the employee or independent contractor a copy of the withholding order and the notice to the employee sent by the court.
If the employer receives an order that (i) does not contain the obligor’s correct social security number, (ii) does not specify a single monetary amount to be withheld per regular pay period interval of the obligor, unless the obligor is an independent contractor or the order is for lump sum withholding, (iii) does not state the maximum percentage that may be withheld pursuant to § 34-29 , (iv) contains information that is in conflict with the employer’s current payroll records, or (v) orders payment to an entity other than to the Department of Social Services or the Department’s designee, the employer may deposit in the mail or otherwise file a reply to that effect within five business days from service of such order. The order shall be void from transmission or filing of such reply unless the court or the Department, as applicable, finds that the reply is materially false. In addition, an employer of 10,000 or more persons may also file a reply, with like effect, if payment is ordered other than by combined single payment in the case of withholdings from multiple employees to the Department’s central office in Richmond, without the employer’s express written consent, unless the order is from a support enforcement agency outside the Commonwealth.

History. 1990, c. 896; 1991, cc. 651, 694; 1994, c. 767; 1996, c. 416; 1998, c. 727; 2001, c. 209; 2006, c. 365; 2007, c. 557; 2020, c. 722.

Cross references.

As to failure to comply with support obligation, see § 16.1-278.16.

As to authority of the Department of Social Services, in the absence of a court order, to direct the payment of child and child and spousal support, and under certain circumstances health care coverage, including requirements specified for employers pursuant to § 20-79.3 A 5, see § 63.2-1903 .

As to issuance of an administrative order for withholding of income incident to a support order, see §§ 63.2-1923 , 63.2-1924 . As to issuance to an employer for withholding pursuant to a support order, see § 63.2-1929 .

For requirement that assignment of earnings to satisfy a support debt be honored when ordered by the Commissioner of Social Services by a payroll deduction order conforming to § 20-79.3 , see § 63.2-1945 .

Editor’s note.

The 2001 amendments.

The 2001 amendment by c. 209 inserted “however, child support withholding amounts collected from unemployment insurance benefits shall not be subject to this fee” at the end of subdivision A 6.

The 2006 amendments.

The 2006 amendment by c. 365, effective March 30, 2006, substituted “prorate among the orders . . . accrued arrearages, if any” for “honor the terms of the earliest received order, and subsequent orders shall be honored in the order of receipt” in subdivision A 8.

The 2007 amendments.

The 2007 amendment by c. 557 deleted “§” preceding “20-79.2” in subdivision A 9; and added the last sentence in subdivision A 12.

The 2020 amendments.

The 2020 amendment by c. 722 inserted subsection A; designated the following paragraph with its of subdivisions 1 through 19 as subsection B, with the subdivision becoming subdivisions B 1 through B 19; redesignated subsection B as subsection C; in subdivision B 2, inserted “such” in the first sentence and substituted “If the employee is an independent contractor, then the order shall state that the employer shall withhold and pay out of the obligor’s income a single monetary amount or the maximum amount permitted under § 34-29 , whichever is less, for each instance of compensation of the obligor, once the aggregate amount of remuneration reaches $600 or more in a calendar year, and such payment may be by check” for “The terms ‘employer’ and ‘income’ shall have the meanings prescribed in § 63.2-1900 ” in the second sentence; in subdivision B 3, added “or, if the obligor is an independent contractor, the order shall begin with the next instance of compensation of the obligor, and payment shall be made at each instance of compensation of the obligor”; in subdivision B 4 and B 11, substituted “that” for “which”; in subdivision B 5, substituted “case that” for “case which” in the fourth sentence and substituted “plan that” for “plan which” in the penultimate sentence in clause (ii); in subdivision B 9, inserted “terminate a contract with or” and “terminates a contract with or”; in subdivision B 12, inserted “or instance of compensation if the obligor is an independent contractor”; in subdivision B 13, inserted “or instance of compensation if the obligor is an independent contractor” in clause (i), deleted “by” preceding “submitting” in clause (ii), and added “or instance of compensation” at the end of clause (ii); in subdivision B 19, inserted “or independent contractor”; in subsection C in the first sentence, inserted “unless the obligor is an independent contractor or the order is for lump sum withholding” in clause (ii) and substituted “that” for “which” in clauses (iii) and (iv) and made stylistic changes.

Law Review.

For 2006 survey article, “Family and Juvenile Law,” see 41 U. Rich. L. Rev. 151 (2006).

For 2007 annual survey article, “Labor and Employment Law,” see 42 U. Rich. L. Rev. 489 (2007).

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Parent and Child, § 4.

§ 20-80. Violation of orders; trial; forfeiture of recognizance.

If at any time the court may be satisfied by information and due proof that the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence him or her, under the original conviction, or annul suspension of sentence, and enforce such sentence, or in its discretion may extend or renew the term of probation as the case may be. Upon due proof that the terms of such order have been violated, the court shall in any event have the power to declare the recognizance forfeited, the sum or sums thereon to be paid, in the discretion of the court, in whole or in part to the defendant’s spouse, or to the guardian, curator, custodian or trustee of the minor child or children, or to an organization or individual designated by the court to receive the same.

History. Code 1919, § 1940; 1918, p. 761; 1922, p. 846; 1974, c. 464.

§ 20-81. Presumptions as to desertion and abandonment.

Proof of desertion or of neglect of spouse, child or children by any person shall be prima facie evidence that such desertion or neglect is willful; and proof that a person has left his or her spouse, or his or her child or children in destitute or necessitous circumstances, or has contributed nothing to their support for a period of thirty days prior or subsequent either or both to his or her departure, shall constitute prima facie evidence of an intention to abandon such family.

History. Code 1919, § 1941; 1918, p. 761; 1922, p. 846; 1974, c. 464.

§ 20-82. Spouses competent as witnesses.

In every prosecution under this chapter, persons married to each other shall be competent witnesses to testify against each other in all relevant matters, including the facts of such marriage, provided that neither shall be compelled to give evidence incriminating himself.

History. Code 1919, § 1941; 1918, p. 761; 1922, p. 846; 2020, c. 900.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “under this chapter, persons married to each other” for “under this chapter both husband and wife” and at the end deleted “or herself.”

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

CASE NOTES

This section abrogates the common-law rule excluding testimony by either spouse as to nonaccess, to prove that a child born during a marriage is illegitimate. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

§ 20-83. Venue of offense.

Any offense under this chapter shall be held to have been committed in any county or city in which such spouse, child or children may be at the time of desertion, or in which such child or children may be or remain, with the knowledge and acquiescence of the accused, in destitute or necessitous condition, or where the accused shall be found in this Commonwealth.

History. Code 1919, § 1942; 1918, p. 761; 1922, p. 846; 1975, c. 644.

§ 20-83.1. Transfer of cases between courts in certain instances.

In the event that a spouse or dependent child has left the jurisdiction of the court in which the original petition was filed, but is still within the Commonwealth, and the accused is not within the jurisdiction embraced by such court, on motion of the spouse or child, or accused or the person having custody of such child, the court in which the original petition was filed may transfer the case to the court having original jurisdiction to hear such petitions in the county or city in this Commonwealth in which the spouse or child or accused resides. The court to which such case has been transferred shall have power to enforce such orders and decrees as may have been made in the court transferring the case as though the petition had been originally filed therein, and to make such other orders and decrees as may be necessary to enforce the provisions of this chapter.
In the event that an appeal is pending in a court of record in this Commonwealth from the decision of any court having jurisdiction to hear such petitions, upon motion of the spouse or child, or the person having custody of the child, stating that such spouse or child no longer resides within the jurisdiction of such court of record, such court, upon reaching its decision, may transfer the case to the court having original jurisdiction to hear such petitions in the county or city in which the spouse or child resides in the same manner and to the same effect as provided in subsection (a) hereof.

History. 1964, c. 12; 1974, c. 464.

§ 20-84. Extradition.

Whenever the judge of, or magistrate serving, the jurisdiction wherein such offense is alleged to have been committed shall, after an investigation of the facts and circumstances thereof, certify that in his opinion the charge is well founded and the case a proper one for extradition, or in any case if the cost of extradition is borne by the parties interested in the case, the person charged with having left the Commonwealth with the intention of evading the terms of his or her probation or of abandoning or deserting his or her spouse, or his or her child or children, or failing to support them, shall be apprehended and brought back to the county or city having jurisdiction of the case in accordance with the law providing for the apprehension and return to the Commonwealth of fugitives from justice, and upon conviction punished as hereinabove provided.

History. Code 1919, § 1942; 1918, p. 761; 1922, p. 846; 1974, c. 464; 2008, cc. 551, 691.

The 2008 amendments.

The 2008 amendments by cc. 551 and 691 are identical and substituted “judge of, or magistrate serving, the jurisdiction wherein such offense” for “judge or magistrate within whose jurisdiction such offense” near the beginning.

Michie’s Jurisprudence.

For related discussion, see 8A M.J. Extradition, § 2.

CASE NOTES

No jurisdiction to order extradition. —

§§ 20-85, 20-86. Repealed by Acts 1988, c. 495.

§ 20-87. Arrest for violating directions, rules or regulations given by judge.

Whenever the chief of police or sheriff becomes satisfied that such person is violating the directions, rules or regulations given or prescribed by the judge for his or her conduct, such chief of police or sheriff shall have authority to arrest such person after a proper capias or warrant has been issued for such person and forthwith carry him before the court before whom he or she was first brought.

History. Code 1919, § 1944; 1918, p. 762; 1922, p. 847; 1974, c. 464; 1975, c. 644; 1988, c. 495.

§ 20-87.1. Repealed by Acts 2003, c. 467.

Cross references.

For authority of Department of Social Services to obtain information from other state agencies, public service corporations and companies to assist in locating parents who have deserted their children, see § 63.2-1902 .

§ 20-88. Support of parents by children.

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.

If there be more than one person bound to support the same parent or parents, the persons so bound to support shall jointly and severally share equitably in the discharge of such duty. Taking into consideration the needs of the parent or parents and the circumstances affecting the ability of each person to discharge the duty of support, the court having jurisdiction shall have the power to determine and order the payment, by such person or persons so bound to support, of that amount for support and maintenance which to the court may seem just. Where the court ascertains that any person has failed to render his or her proper share in such support and maintenance it may, upon the complaint of any party or on its own motion, compel contribution by that person to any person or authority which has theretofore contributed to the support or maintenance of the parent or parents. The court may from time to time revise the orders entered by it or by any other court having jurisdiction under the provisions of this section, in such manner as to it may seem just.

The juvenile and domestic relations district court shall have exclusive original jurisdiction in all cases arising under this section. Any person aggrieved shall have the same right of appeal as is provided by law in other cases.

All proceedings under this section shall conform as nearly as possible to the proceedings under the other provisions of this chapter, and the other provisions of this chapter shall apply to cases arising under this section in like manner as though they were incorporated in this section. Prosecutions under this section shall be in the jurisdiction where the parent or parents reside.

This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child’s emancipation or, except as provided hereafter in this section, if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program.

To the extent that the financial responsibility of children for any part of the costs incurred in providing medical assistance to their parents pursuant to the plan provided for in § 32.1-325 is not restricted by that plan and to the extent that the financial responsibility of children for any part of the costs incurred in providing to their parents services rendered, administered or funded by the Department of Behavioral Health and Developmental Services is not restricted by federal law, the provisions of this section shall apply. A proceeding may be instituted in accordance with this section in the name of the Commonwealth by the state agency administering the program of assistance or services in order to compel any child of a parent receiving such assistance or services to reimburse the Commonwealth for such portion of the costs incurred in providing the assistance or services as the court may determine to be reasonable. If costs are incurred for the institutionalization of a parent, the children shall in no case be responsible for such costs for more than sixty months of institutionalization.

Any person violating the provisions of an order entered pursuant to this section shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $500 or imprisonment in jail for a period not exceeding twelve months or both.

History. 1920, p. 413; 1922, p. 544; 1928, p. 745; 1942, p. 406; Michie Code 1942, § 1944a; 1952, c. 510; 1954, c. 481; 1962, c. 557; 1968, c. 665; 1970, c. 278; 1974, c. 657; 1975, c. 644; 1982, c. 472; 1984, c. 781; 2009, cc. 813, 840.

Cross references.

As to punishment for conviction of a misdemeanor, see § 18.2-11 .

Editor’s note.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in the sixth paragraph.

Law Review.

For survey of the Virginia law on domestic relations for the year 1967-1968, see 54 Va. L. Rev. 1215 (1968).

For article on paying the medical bills of elderly parents, see 19 U. Rich. L. Rev. 69 (1984).

For survey, “Grow Up Virginia: Time to Change Our Filial Responsibility Law,” see 51 U. Rich. L. Rev. 265 (2016).

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Parent and Child, § 24.

CASE NOTES

This section imposes a mandatory legal obligation. —

This section imposes upon a person 16 (now 18) years of age or over the mandatory legal obligation, if of sufficient earning capacity or income, to support or assist in supporting his mother, if she is in necessitous circumstances. In other words, the consideration for a contract to support one’s mother would be one “deemed valuable in law,” and not in violation of § 55-81. Mitchell-Powers Hdwe. Co. v. Eaton, 171 Va. 255 , 198 S.E. 496 , 1938 Va. LEXIS 278 (1938).

The duty placed upon the child to support his parent is not an absolute one. It is conditioned upon his financial ability to support the indigent parent “after reasonably providing for his own immediate family.” Bagwell v. Doyle, 187 Va. 844 , 48 S.E.2d 229, 1948 Va. LEXIS 273 (1948).

Parent must be in necessitous circumstances. —

A condition of this section making a child liable for the support of its parent, is that the parent must be in necessitous circumstances according to his or her standard of living. This condition is essential to the right to support and a condition precedent to the creation of a legal obligation resting upon the child. Mitchell-Powers Hdwe. Co. v. Eaton, 171 Va. 255 , 198 S.E. 496 , 1938 Va. LEXIS 278 (1938).

“Necessitous” is defined as “living in or characterized by poverty; needy,” and as “narrow, destitute, pinching, pinched.” Mitchell-Powers Hdwe. Co. v. Eaton, 171 Va. 255 , 198 S.E. 496 , 1938 Va. LEXIS 278 (1938).

Support and maintenance, as used in this section, mean in a moral and legal sense, having regard to the situation, mode of life and condition of the persons concerned. The statute means the son or daughter, if of sufficient earning capacity or income, must do more than relieve the pangs of hunger, provide shelter and furnish only enough clothes to cover the nakedness of the parent. He or she must furnish such support and maintenance as comport with the health, comfort and welfare of normal individuals according to their standards of living considering his or her own means, earning capacity and station in life. Mitchell-Powers Hdwe. Co. v. Eaton, 171 Va. 255 , 198 S.E. 496 , 1938 Va. LEXIS 278 (1938).

“Circumstances” a question for the jury. —

The question whether or not a parent is in necessitous circumstances should be determined by the jury under proper instructions from the court. Mitchell-Powers Hdwe. Co. v. Eaton, 171 Va. 255 , 198 S.E. 496 , 1938 Va. LEXIS 278 (1938).

§ 20-88.01. Repealed by Acts 1992, c. 662.

Cross references.

For present provisions relating to transfer of assets to qualify for assistance and liability of transferees, see § 20-88.02 .

§ 20-88.02. Transfer of assets to qualify for assistance; liability of transferees.

As used in this section, “uncompensated value” means the aggregate amount by which the fair market value of all property or resources, including fractional interests, transferred by any transferor after the effective date of and subject to this section, exceeds the aggregate consideration received for such property or resources.
Within thirty months prior to the date on which any person receives benefits from any program of public assistance or social services as defined in § 63.2-100 , if such person has transferred any property or resources resulting in uncompensated value, the transferee of such property or resources shall be liable to repay the Commonwealth for benefits paid on behalf of the transferor up to the amount of that uncompensated value less $25,000.
In their discretion, the heads of the agencies which administer the appropriate program or programs of public assistance may petition the circuit court having jurisdiction over the property or over the transferee for an order requiring repayment. That order shall continue in effect, as the court may determine, for so long as the transferor receives public assistance or until the uncompensated value is completely repaid. With respect to all transfers subject to this section, a rebuttable presumption is created that the transferee acted with the intent and for the purpose of assisting the transferor to qualify for public assistance. If the presumption is rebutted, this section shall not apply and the petition shall be dismissed.
After reasonable investigation, the agency or agencies administering the program of public assistance shall not file any petition, and no court shall order payments under subsection B of this section if it is determined that: (i) the uncompensated value of the property transferred is $25,000 or less, (ii) that the property transferred was the home of the transferor at the time of the transfer and the transferor or any of the following individuals reside in the home: the transferor’s spouse, any natural or adopted child of the transferor under the age of twenty-one years or any natural or adopted child of the transferor, regardless of age, who is blind or disabled as defined by the federal Social Security Act or the Virginia Medicaid Program, or (iii) the transferee is without financial means or that such payment would work a hardship on the transferee or his family. If the transferee does not fully cooperate with the investigating agency to determine the nature and extent of the hardship, there shall be a rebuttable presumption that no hardship exists.

History. 1992, c. 662; 2002, c. 747.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, substituted “or social services as defined in § 63.2-100 ” for “as defined in § 63.1-87” in subsection B.

§ 20-88.02:1. Limitations on spousal support orders resulting in eligibility for medical assistance services; definitions.

Whenever any court shall determine that any petition for a spousal support order will have the effect of rendering either spouse eligible for medical assistance services or for accelerating eligibility for medical assistance services, and the community spouse is asking for additional resources which will bring his total resources to an amount in excess of the federally established maximum spousal resource allowance:
1. The court shall not enter the requested spousal support order unless the court first orders the institutionalized spouse to make available the maximum income contribution to the community spouse.
2. The court must ascertain, when determining additional income in excess of the federally established community spouse minimum monthly maintenance needs allowance, that the increase is necessary due to exceptional circumstances resulting in significant financial duress to the community spouse.
3. When determining the amount of any additional resources to be allowed to raise the community spouse’s income up to either the federally established community spouse minimum monthly maintenance needs allowance or in excess of such minimum monthly maintenance needs allowance, the amount of such additional resources to be allowed shall be the greater of (i) those additional resources necessary to generate an amount sufficient to increase the community spouse’s income to the applicable monthly needs or income allowance, as the case may be when based on the current earnings of such resources or (ii) the amount necessary, at the time of the court’s deliberations, to purchase a single premium annuity that would generate monthly income to the community spouse in an amount sufficient to increase the community spouse’s income to the applicable monthly needs or income allowance, as the case may be.
For the purpose of making the determinations required by this section:“Community spouse” means the spouse of an individual residing in a medical institution or nursing facility.“Federally established maximum spousal resource allowance” means that amount established as the maximum spousal resource allowance in 42 U.S.C. 1396r-5 (f) (2) (A) as adjusted annually in accordance with 42 U.S.C. 1396r-5 (g).“Institutionalized spouse” means an individual who has been residing in a medical institution or nursing facility for at least thirty consecutive days and who is married to an individual who is not residing in a medical institution or nursing facility.“Significant financial duress” means, but is not limited to, threatened loss of basic shelter, food or medically necessary health care or the financial burden of caring for a disabled child, sibling or other immediate relative.

History. 1994, cc. 836, 952.

Editor’s note.

Acts 1994, cc. 836 and 952, cl. 2, provide: “That effective January 1, 1994, the federally established maximum spousal resource allowance became $72,660.”

Chapter 5.1. Civil Proceedings to Compel Support.

§§ 20-88.1 through 20-88.11.

Repealed by Acts 1952, c. 516.

The numbers of §§ 20-88.1 through 20-88.11 were assigned by the Virginia Code Commission, the 1950 act having assigned no numbers.

Cross references.

For new sections relating in part to similar subject matter, see §§ 20-88.32 through 20-88.82.

Chapter 5.2. Revised Uniform Reciprocal Enforcement of Support Act.

§§ 20-88.12 through 20-88.31.

Repealed by Acts 1994, c. 673.

Cross references.

For new sections covering same subject matter as the repealed sections, see Title 20, §§ 20-88.32 through 20-88.80 .

Chapter 5.3. Uniform Interstate Family Support Act.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.04 Actions for Support. Friend.

Virginia Forms (Matthew Bender). No. 5-257 Petition to Enforce Foreign Decree for Maintenance and Support Under the Uniform Interstate Family Support Act (UIFSA), et seq.

Article 1. General Provisions.

§ 20-88.32. Definitions.

In this chapter:

“Child” means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual’s parent or who is or is alleged to be the beneficiary of a support order directed to the parent.

“Child support order” means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country.

“Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.

“Duty of support” means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.

“Employer” means the source of any income as defined in § 63.2-1900 .

“Foreign country” means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:

That has been declared under the law of the United States to be a foreign reciprocating country;
That has established a reciprocal arrangement for child support with the Commonwealth as provided in § 20-88.50 ;
That has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this chapter; or
In which the Convention is in force with respect to the United States.“Foreign support order” means a support order of a foreign tribunal.“Foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention.“Home state” means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.“Income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of the Commonwealth.“Income-withholding order” means an order or other legal process directed to an obligor’s employer or other debtor, to withhold support from the obligor’s income as defined in § 63.2-1900 .“Initiating tribunal” means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or in which a petition or comparable pleading is filed for forwarding to another state or foreign country.“Issuing foreign country” means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.“Issuing state” means the state in which a tribunal issues a support order or a judgment determining parentage of a child.“Issuing tribunal” means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child.“Law” includes decisional and statutory law and rules and regulations having the force of law.“Obligee” means (i) an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued, (ii) a foreign country, state, or political subdivision of a state to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee in place of child support, (iii) an individual seeking a judgment determining parentage of the individual’s child, or (iv) a person that is a creditor in a proceeding under Article 13 (§ 20-88.83 et seq.).“Obligor” means an individual, or the estate of a decedent that (i) owes or is alleged to owe a duty of support, (ii) is alleged but has not been adjudicated to be a parent of a child, (iii) is liable under a support order, or (iv) is a debtor in a proceeding under Article 13 (§ 20-88.83 et seq.).“Outside the Commonwealth” means a location in another state, political subdivision of a state, or a country other than the United States, whether or not the country is a foreign country.“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.“Register” means to file in a tribunal of the Commonwealth a support order or judgment determining parentage of a child issued in another state or a foreign country.“Registering tribunal” means a tribunal in which a support order or judgment determining parentage of a child is registered.“Responding state” means a state or a foreign country in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or a foreign country.“Responding tribunal” means the authorized tribunal in a responding state or foreign country.“Spousal-support order” means a support order for a spouse or former spouse of the obligor.“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession under the jurisdiction of the United States. The term includes an Indian nation or tribe.“Support enforcement agency” means a public official, governmental entity, or private agency authorized to (i) seek enforcement of support orders or laws relating to the duty of support, (ii) seek establishment or modification of child support, (iii) request determination of parentage of a child, (iv) attempt to locate obligors or their assets, or (v) request determination of the controlling child support order. A support enforcement agency of the Commonwealth is not authorized to establish or enforce a support order for spousal support only.“Support order” means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees, and other relief.“Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child; however, the support enforcement agency of the Commonwealth has no authority to establish or enforce a support order for spousal support only.

History. 1994, c. 673; 1995, c. 484; 1996, cc. 882, 925; 1997, cc. 797, 897; 1998, c. 727; 2005, c. 754; 2015, c. 727.

Cross references.

As to child support enforcement, see § 63.2-1900 et seq.

Uniform law cross references.

For other signatory state provisions of the 1996 or 2001 Uniform Interstate Family Support Act, see:

Alabama: Code of Ala. §§ 30-3D-101 to 30-3D-902.

Alaska: Alaska Stat. §§ 25.25.101 to 25.25.903.

Arizona: A.R.S. §§ 25-1201 to 25-1342.

Arkansas: A.C.A. §§ 9-17-101 to 9-17-902.

California: California Fam. Code §§ 5700.101 to 5700.905.

Colorado: C.R.S. §§ 14-14-101 to 14-14-113.

Delaware: 13 Del. C. §§ 6-101 to 6-903.

District of Columbia: D.C. Code §§ 46-301.01 to 46-309.01.

Florida: Fla. Stat. §§ 88.0011 to 88.9031.

Georgia: Ga. Code §§ 19-11-100 to 19-11-191.

Hawaii: H.R.S. §§ 576B-101 to 576B-902.

Idaho: Idaho Code §§ 7-1001 to 7-1062.

Illinois: 750 I.L.C.S. 22/100 to 22/999.

Indiana: Burns Ind. Code Ann. 31-18.5-1-1 to 31-18.5-9-1.

Iowa: Iowa Code §§ 252K.101 to 252K.904.

Kansas: K.S.A. §§ 23-36,101 to 23-36,903.

Kentucky: K.R.S. 407.5101 to 407.5902.

Louisiana: La. Ch.C. Art. 1301.1 — 1309.3.

Maine: 19-A M.R.S. §§ 2801 to 3401.

Maryland: Family Law §§ 10-301 to 10-371.

Massachusetts: Mass. Ann. Laws c. 209D §§ 1-101 to 9-902.

Michigan: M.C.L.S. §§ 552.1101 to 552.1901.

Minnesota: Minn. Stat. §§ 518C.101 to 518C.902.

Mississippi: Miss. Code Ann. §§ 93-25-101 to 93-25-903.

Missouri: §§ 454.849 to 454.999 R.S.Mo.

Montana: Mont. Code Anno. §§ 40-5-1001 to 40-5-1092.

Nebraska: R.R.S. Neb. §§ 42-701 to 42-751.01.

Nevada: Nev. Rev. Stat. Ann. §§ 130.0902 to 130.802.

New Hampshire: R.S.A.. §§ 546-B:1 to 546-B:59.

New Jersey: N.J. Stat. 2A:4-30.65 to 2A:4-30.122.

New Mexico: N.M. Stat. Ann. §§ 40-6A-101 to 40-6A-903.

New York: NY CLS Family Ct. Act §§ 580-101 to 580-905.

North Carolina: N.C. Gen. Stat. §§ 52C-1-100 to 52C-9-902.

North Dakota: N.D. Cent. Code 14-12.2-01 to 14-12.2-49.

Ohio: O.R.C. Ann. §§ 3115.101 to 3115.903.

Oklahoma: 43 Okl. St. Ann. §§ 601-101 to 601-903.

Pennsylvania: 23 Pa. C.S.A. §§ 7101 to 7902.

Rhode Island: R.I. Gen. Laws §§ 15-23.1-100 to 15-23.1-907.

South Carolina: S.C. Code Ann. §§ 63-17-2900 to 63-17-4040.

South Dakota S.D. Codified Laws 25-9C-101 to 25-9C-903.

Tennessee: Tenn. Code Ann. §§ 36-5-2001 to 36-5-2902.

Texas: Tex. Fam. Code §§ 159.001 to 159.902.

Utah: Utah Code Ann. § 78B-14-101 to 78B-14-902.

Vermont: 15B V.S.A §§ 1101 to 1903.

Virgin Islands: 16 V.I.C. §§ 391 through 451.

Washington: Rev. Code Wash. §§ 26.21A.005 to 26.21A.915.

West Virginia: W. Va. Code §§ 48-16-101 to 48-16-903.

Wisconsin: Wis. Stat. §§ 769.101 to 769.903.

Wyoming: Wyo. Stat. §§ 20-4-139 to 20-4-194.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “amounts for child or spousal” preceding “support” in the “Income-withholding order” paragraph, “the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act” in the “Initiating state” and “Responding state” paragraphs, added the paragraph defining “Record,” rewrote the paragraph defining “State,” in the paragraph defining “Support enforcement agency” substituted “location of” for “or locating” and inserted “or determination of the controlling child support order,” inserted “issued by a tribunal” in the paragraph defining “Support order,” and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, added the definitions of “Convention,” “Foreign country,” “Foreign Support order,” “Foreign tribunal,” “Outside the Commonwealth,” and “Person”; deleted definition of “Initiating state”; and rewrote the remaining definitions.

Law Review.

For 1994 survey on Virginia domestic relations law, see 28 U. Rich. L. Rev. 981 (1994).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 57, 58.1, 78, 78.1.

CASE NOTES

Out-of-state contract creating duty of support. —

Separation agreement entered into by the parties in Maryland was a valid contract; thus, it created a duty of support. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

Foreign decrees to be enforced. —

Even if the courts of Virginia were not compelled to do so under the full faith and credit clause of the federal constitution, “upon principles of comity they may establish as their own decree a foreign decree . . ., with the same force and effect as if it had been entered in Virginia, provided, of course, the foreign decree violates no public policy of Virginia.” Moreover, such a result now seems required by the Uniform Interstate Family Support Act, § 20-88.32 et seq. Sheppard v. Sheppard, 1996 Va. App. LEXIS 261 (Va. Ct. App. Apr. 9, 1996).

Out-of-state order not registerable. —

Trial court erred in concluding that the South Carolina family court order staying wife’s wage withholding petition was an order registerable under this chapter. Commonwealth, Va. Dep't of Social Servs. ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817, 1996 Va. App. LEXIS 599 (1996).

Public assistance debt. —

The definitions of “obligee,” “support order,” and “duty of support” in the Uniform Interstate Family Support Act (UIFSA) anticipate states sending petitions to each other seeking reimbursement from obligors for public assistance paid to their families. Commonwealth ex rel. Gagne v. Chamberlain, 31 Va. App. 533, 525 S.E.2d 19, 2000 Va. App. LEXIS 122 (2000).

Furthermore, by adopting UIFSA, the Virginia legislature intended to permit Virginia to determine the existence of a public assistance debt owed to another state. Commonwealth ex rel. Gagne v. Chamberlain, 31 Va. App. 533, 525 S.E.2d 19, 2000 Va. App. LEXIS 122 (2000).

In the context of a petition under UIFSA for the determination of the existence of a public assistance debt, the word “state” means “any state.” Commonwealth ex rel. Gagne v. Chamberlain, 31 Va. App. 533, 525 S.E.2d 19, 2000 Va. App. LEXIS 122 (2000).

California was issuing state where New York court modified California order. —

Where father argued that, because mother sought to register the California order, as modified by the New York court, the “issuing state” was New York, the trial court correctly determined that California was the original “issuing state,” and retained its status as the issuing state throughout the subsequent action in New York. Fitzhugh v. Dupree, 1997 Va. App. LEXIS 694 (Va. Ct. App. Nov. 10, 1997).

CIRCUIT COURT OPINIONS

Property settlement agreement did not qualify as support order. —

Property settlement agreement between a former wife and her former husband did not qualify as a “support order” under § 20-88.32 of the Uniform Interstate Family Support Act and was not subject to registration under the Act, as the agreement was never incorporated into the parties’ final decree of divorce and contained language that it was to survive the entry of the final divorce decree. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

§ 20-88.32:1. Uniformity of application and construction.

In applying and construing this Uniform Interstate Family Support Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this section effective April 15, 2015, by emergency.

§ 20-88.33. Tribunals of the Commonwealth and support enforcement agency.

The juvenile and domestic relations district courts, circuit courts, and the Department of Social Services are the tribunals of the Commonwealth.
The Department of Social Services is the support enforcement agency of the Commonwealth.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “or family courts upon their creation” and made a minor stylistic change.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted the subsection A designation and added subsection B.

CIRCUIT COURT OPINIONS

In general. —

Virginia Uniform Interstate Family Support Act, § 20-88.35 , providing that several methods existed for a tribunal to obtain personal jurisdiction over a nonresident defendant in order to enforce an administrative support order, had a related statutory provision that contemplated that a tribunal described in § 20-88.35 could include a juvenile and domestic relations court, a trial court, or the Department of Social Services. Div. of Child Support Enforcement v. Lee, 58 Va. Cir. 338, 2002 Va. Cir. LEXIS 151 (Roanoke Mar. 12, 2002).

§ 20-88.34. Remedies cumulative.

Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law or the recognition of a foreign support order on the basis of comity.
This chapter does not provide the exclusive method of establishing or enforcing a support order under the law of the Commonwealth or grant a tribunal of the Commonwealth jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this chapter.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 added the language “including the recognition” to the end of the section.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted the subsection A and B designations and substituted “or the recognition of a foreign support order” for “including the recognition of a support order of a foreign country or political subdivision” in subsection A.

§ 20-88.34:1. Application of chapter to resident of foreign country and foreign support proceeding.

A tribunal of the Commonwealth shall apply Articles 1 through 9 (§ 20-88.32 et seq.) and, as applicable, Article 13 (§ 20-88.83 et seq.) to a support proceeding involving a foreign support order, a foreign tribunal, or an obligee, obligor, or child residing in a foreign country.
A tribunal of the Commonwealth that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of Articles 1 through 9 (§ 20-88.32 et seq.).
Article 13 (§ 20-88.83 et seq.) applies only to a support proceeding under the Convention. In such a proceeding, if a provision of Article 13 is inconsistent with Articles 1 through 9 (§ 20-88.32 et seq.), Article 13 controls.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this section effective April 15, 2015, by emergency.

Article 2. Extended Personal Jurisdiction.

§ 20-88.35. Bases for jurisdiction over nonresident.

In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of the Commonwealth may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:

The individual is personally served with process within the Commonwealth;
The individual submits to the jurisdiction of the Commonwealth by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
The individual resided with the child in the Commonwealth;
The individual resided in the Commonwealth and paid prenatal expenses or provided support for the child;
The child resides in the Commonwealth as a result of the acts or directives of the individual;
The individual engaged in sexual intercourse in the Commonwealth and the child may have been conceived by the act of intercourse;
The individual asserted parentage of a child in the Virginia Birth Father Registry maintained in the Commonwealth by the Department of Social Services;
The exercise of personal jurisdiction is authorized under subdivision A 8 of § 8.01-328.1 ; or
There is any other basis consistent with the constitutions of the Commonwealth and the United States for the exercise of personal jurisdiction.The bases of personal jurisdiction set forth in this section or any other law of the Commonwealth may not be used to acquire personal jurisdiction for a tribunal of the Commonwealth to modify a child support order issued by a tribunal of another state unless the requirements of § 20-88.76 or 20-88.77:3 are met.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727; 2017, c. 200.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “or modify” following “enforce” in the first paragraph, added the second paragraph of subdivision 7, and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “of a child” in the first sentence; added subdivisions 6 and 7 and redesignated the remaining subdivisions accordingly.

The 2017 amendments.

The 2017 amendment by c. 200 substituted “Virginia Birth Father Registry” for “putative father registry” in subdivision 7.

CASE NOTES

Continuing jurisdiction found. —

Where both husband and wife had lived in Virginia but currently neither party lived there, and where Virginia circuit court ruled that it was bound by the 1992 South Carolina order, including that court’s finding that it had jurisdiction over husband and the subject matter, the trial court erred by declining to exercise its continued jurisdiction to enforce its original support order. While husband argued that the divorce decree was ex parte, the record demonstrated conclusively that the Virginia circuit court had personal jurisdiction over husband at the time the divorce decree was entered. Commonwealth, Va. Dep't of Social Servs. ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817, 1996 Va. App. LEXIS 599 (1996).

Husband’s own actions led to jurisdiction. —

Although husband had never resided, owned property, paid taxes, or obtained a driver’s license in Virginia and had been physically present in Virginia only three times in the previous five years, under Uniform Interstate Family Support Act court had jurisdiction for support issues over husband as a result of his actions: after several physical altercations, husband ordered wife and children from their home in Africa, whereupon wife established a permanent home for herself and the children in Virginia, the family’s home immediately prior to their departure for Africa, the port of entry for her return to this country, and the location of husband’s employer’s field office in charge of distributing his mail. Franklin v. Commonwealth, Dep't of Social Servs. ex rel. Franklin, 27 Va. App. 136, 497 S.E.2d 881, 1998 Va. App. LEXIS 207 (1998).

Petition for rule to show cause amounted to entry of general appearance. —

By filing a petition for a rule to show cause at a time when the issues of custody and support were properly before juvenile and domestic relations court, husband entered a general appearance and submitted himself to the jurisdiction of the court. Franklin v. Commonwealth, Dep't of Social Servs. ex rel. Franklin, 27 Va. App. 136, 497 S.E.2d 881, 1998 Va. App. LEXIS 207 (1998).

CIRCUIT COURT OPINIONS

Basis for jurisdiction over nonresident. —

The Virginia Uniform Interstate Family Support Act, in § 20-88.35 , provided several circumstances under which the Commonwealth could exercise personal jurisdiction over a nonresident regarding an administrative child support order, and, thus, the fact that personal jurisdiction over the nonresident mother was not obtained under Virginia’s long-arm statute, § 8.01-328.1 , did not mean the support order was invalid for lack of personal jurisdiction over the mother. Div. of Child Support Enforcement v. Lee, 58 Va. Cir. 338, 2002 Va. Cir. LEXIS 151 (Roanoke Mar. 12, 2002).

Personal jurisdiction required. —

To establish, enforce, or modify a “support order” involving a non-resident of the Commonwealth of Virginia, a court must have personal jurisdiction over the non-resident individual pursuant to § 20-88.35 of the Uniform Interstate Family Support Act (UIFSA), § 20-88.32 et seq.; it is a basic tenet that a party must have some “minimum contacts” with a state before its courts can exercise personal jurisdiction over that person notwithstanding the UIFSA. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

Basis for personal jurisdiction over party who has executed property settlement agreement outside Virginia. —

To obtain personal jurisdiction over a person who has executed a property settlement outside Virginia, there must be more than a simple connection between the contract which is being sued upon and the state asserting jurisdiction, and the mere allegation that the plaintiff, a party to the agreement, is present in Virginia is not a sufficient connection to give Virginia personal jurisdiction over the defendant; where the defendant is a non-resident, the complaint or other pleadings must allege, at a minimum, a connection to Virginia that is recognized by Virginia’s long-arm statute. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

Service of process. —

Despite the registration of a foreign decree under the Uniform Interstate Family Support Act, § 20-88.32 et seq., an obligor under the decree must be found in Virginia and served with process before a Virginia court can proceed against the obligor. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

Registration was denied where personal jurisdiction over obligor was lacking. —

Former wife was not permitted to register a purported foreign support order because the circuit court lacked personal jurisdiction over her former husband given that the husband was not personally served in Virginia, he objected to jurisdiction there, he had never resided in Virginia, and he did not fall within any of the categories of the Uniform Interstate Family Support Act, § 20-88.32 et seq., or Virginia’s long-arm statute, § 8.01-328.1 , that would have allowed the exercise of jurisdiction over him; without such jurisdiction, there was no benefit to registration of the purported order, as a Virginia court could not have enforced it against him. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

§ 20-88.36. Duration of personal jurisdiction.

Personal jurisdiction acquired by a tribunal of the Commonwealth in a proceeding under this chapter or other law of the Commonwealth relating to a support order continues as long as a tribunal of the Commonwealth has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by §§ 20-88.39 , 20-88.40 and 20-88.43:2 .

History. 1994, c. 673; 1995, c. 484; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

Article 3. Jurisdiction in Proceedings Involving Two or More States.

§ 20-88.37. Initiating and responding tribunal of the Commonwealth.

Under this chapter, a tribunal of the Commonwealth may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state or a foreign country.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “the Commonwealth” for “this Commonwealth”; inserted “a tribunal of” and “or a foreign country” at the end.

CASE NOTES

Former § 20-88.18 was designed as a conflict of laws rule which specifies the law governing the duty of support. Scott v. Sylvester, 220 Va. 182 , 257 S.E.2d 774, 1979 Va. LEXIS 252 (1979).

Former § 20-88.18 applies only when request not based on registered foreign order. —

The conflict of laws rule in former § 20-88.18 becomes necessary only when the request for support is not based upon a foreign state court order. When the request for support is based upon another state’s support order, former § 20-88.30:6 A applies, and no conflict results because the language of former § 20-88.30:6 A declares that the registered support order shall be treated in the same manner as a support order issued by a Virginia court. Consequently, former § 20-88.18 is inapplicable when the support request is based upon former §§ 20-88.30:1 through 20-88.30:6. Scott v. Sylvester, 220 Va. 182 , 257 S.E.2d 774, 1979 Va. LEXIS 252 (1979).

Out-of-state court presumed to have acted in accordance with law. —

Where North Carolina court, which had jurisdiction over the Uniform Reciprocal Enforcement of Support Act petition, was the responding court, absent proof to the contrary, the North Carolina court is presumed to have acted in accordance with the applicable law. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

§ 20-88.38. Simultaneous proceedings in another state.

A tribunal of the Commonwealth may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a pleading is filed in another state or foreign country only if:
1. The petition or comparable pleading in the Commonwealth is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country;
2. The contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and
3. If relevant, the Commonwealth is the home state of the child.
A tribunal of the Commonwealth may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or foreign country if:
1. The petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in the Commonwealth for filing a responsive pleading challenging the exercise of jurisdiction by the Commonwealth;
2. The contesting party timely challenges the exercise of jurisdiction in the Commonwealth; and
3. If relevant, the other state or foreign country is the home state of the child.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or foreign country” or “or the foreign country” following “state” throughout, and made minor stylistic changes.

§ 20-88.39. Continuing, exclusive jurisdiction to modify child support order.

A tribunal of the Commonwealth that has issued a child support order consistent with the law of the Commonwealth has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order, and:
1. At the time of the filing of a request for modification, the Commonwealth is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
2. Even if the Commonwealth is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record that the tribunal of the Commonwealth may continue to exercise its jurisdiction to modify its order.
A tribunal of the Commonwealth that has issued a child support order consistent with the law of the Commonwealth may not exercise continuing, exclusive jurisdiction to modify the order if:
1. All of the parties who are individuals file consent in a record with the tribunal of the Commonwealth that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or who is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
2. Its order is not the controlling order.
If a tribunal of another state has issued a child support order pursuant to this chapter or a law substantially similar to this chapter that modifies a child support order of a tribunal of the Commonwealth, tribunals of the Commonwealth shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
A tribunal of the Commonwealth that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
The support enforcement agency of the Commonwealth is not authorized to establish or enforce a support order for spousal support only.

History. 1994, c. 673; 1996, cc. 882, 925; 1997, cc. 797, 897; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

CASE NOTES

Virginia continues to have the right to enforce its own decrees even if all parties are no longer residents. Commonwealth, Va. Dep't of Social Servs. ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817, 1996 Va. App. LEXIS 599 (1996).

Relocation to foreign country. —

Nothing in the statute vitiated the Virginia court’s continuing jurisdiction to modify its own support order after the mother and child moved to India and the father then also moved to India. Karimi v. Karimi, 1998 Va. App. LEXIS 349 (Va. Ct. App. June 16, 1998).

Juvenile and domestic relations district court did not have authority to order repayment of child support paid under erroneous order. —

Although a Virginia juvenile and domestic relations (JDR) district court erred by entering an order which increased the amount of child support a father was required to pay under an order issued by a Florida court, the JDR court did not have the power to order the father’s ex-wife to repay amounts she received under the erroneous order. Meyers v. Meyers, 2003 Va. App. LEXIS 628 (Va. Ct. App. Dec. 9, 2003).

Jurisdiction. —

Because the trial court erred in finding that: (1) it had continuing subject matter jurisdiction to modify a previously entered child support order, even though its continuing jurisdiction was not exclusive, because § 20-88.39 did not expressly divest it of such jurisdiction; and (2) it retained such authority until another court of competent jurisdiction took or assumed jurisdiction, it erred in granting a mother’s motion to modify said child support order. Moreover, any authority to exercise personal jurisdiction over the father did nothing to remedy the lack of subject matter jurisdiction. Nordstrom v. Nordstrom, 50 Va. App. 257, 649 S.E.2d 200, 2007 Va. App. LEXIS 314 (2007).

§ 20-88.40. Continuing jurisdiction to enforce child support order.

A tribunal of the Commonwealth that has issued a child support order consistent with the law of the Commonwealth may serve as an initiating tribunal to request a tribunal of another state to enforce:
1. The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to this chapter; or
2. A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
A tribunal of the Commonwealth having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “a tribunal of” in subdivision A 2.

CASE NOTES

Juvenile and domestic relations district court did not have authority to order repayment of child support paid under erroneous order. —

Article 4. Reconciliation of Two or More Orders.

§ 20-88.41. Determination of controlling child support order.

If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal controls and shall be so recognized.
If a proceeding is brought under this chapter, and two or more child support orders have been issued by tribunals of the Commonwealth or another state or foreign country with regard to the same obligor and same child, a tribunal of the Commonwealth having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls and must be recognized:
1. If only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of that tribunal controls.
2. If more than one of the tribunals would have continuing, exclusive jurisdiction under this chapter, (i) an order issued by a tribunal in the current home state of the child controls, or (ii) if an order has not been issued in the current home state of the child, the order most recently issued controls.
3. If none of the tribunals would have continuing, exclusive jurisdiction under this chapter, a tribunal of the Commonwealth shall issue a child support order, which controls.
If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or a support enforcement agency, a tribunal of the Commonwealth having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection B. The request may be filed with a registration for enforcement or registration for modification pursuant to Articles 8 (§ 20-88.66 et seq.) and 9 (§ 20-88.74 et seq.) or may be filed as a separate proceeding.
A request to determine which is the controlling order shall be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
The tribunal that issued the controlling order under subsection A, B or C has continuing jurisdiction to the extent provided in § 20-88.39 or 20-88.40 .
A tribunal of the Commonwealth that determines by order which is the controlling order under subdivision B 1 or B 2 or under subsection C or that issues a new controlling order under subdivision B 3 shall state in that order:
1. The basis upon which the tribunal made its determination;
2. The amount of prospective support, if any; and
3. The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by § 20-88.43 .
Within 30 days after issuance of an order determining which is the controlling order, the party obtaining that order shall file a certified copy of it in each tribunal that had issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure arises. The failure to file does not affect the validity or enforceability of the controlling order.
An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section shall be recognized in proceedings under this chapter.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “Two or More” for “Multiple” in the article heading; substituted “shall” for “must” and “the” for “this” throughout the section, rewrote subsections B, C and F, added present subsection D, redesignated former subsections D through F as subsections E through G, substituted “has continuing jurisdiction to the extent provided in” for “is the tribunal that has continuing, exclusive jurisdiction in accordance with” in subsection E, in subsection G, substituted “which is” for “the identity of,” “or support enforcement agency obtaining” for “who obtains,” added subsection H and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or foreign country” and “and must be recognized” in subsection B; deleted “and shall be so recognized” from the end of subdivision B 1; substituted “or (ii)” for “but (ii)” in subdivision B 2; and made minor stylistic changes.

CASE NOTES

Modification of foreign order. —

Trial court did not err in finding that a 1997 North Carolina child support order was the controlling order because pursuant to the Uniform Interstate Family Support Act, N.C. Gen. Stat. § 52C-2-205, North Carolina obtained jurisdiction to modify a 1994 New York child support order since neither the father, mother, nor child were residents of New York, and the child was a resident of North Carolina; pursuant to the Uniform Interstate Family Support Act, N.Y. Fam. Ct. Act § 580-205, New York lost its continuing, exclusive jurisdiction when the parties and child were no longer residents of New York and when North Carolina modified the 1994 New York order. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714, 2012 Va. App. LEXIS 320 (2012).

§ 20-88.42. Child support orders for two or more obligees.

In responding to registrations or petitions for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another state or a foreign country, a tribunal of the Commonwealth shall enforce those orders in the same manner as if the orders had been issued by a tribunal of the Commonwealth.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “multiple” preceding “registrations” and “orders had been”; and substituted “the” for “this” in two places.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or a foreign country.”

§ 20-88.43. Credit for payments.

A tribunal of the Commonwealth shall credit amounts collected for a particular period pursuant to any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this or another state or a foreign country.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, added “or a foreign country” at the end.

§ 20-88.43:1. Application to nonresident subject to personal jurisdiction.

A tribunal of the Commonwealth exercising personal jurisdiction over a nonresident in a proceeding under this chapter, under other law of the Commonwealth relating to a support order, or recognizing a foreign support order may receive evidence from outside the Commonwealth pursuant to § 20-88.59 , communicate with a tribunal of another state outside the Commonwealth pursuant to § 20-88.60 and obtain discovery through a tribunal outside the Commonwealth pursuant to § 20-88.61 . In all other respects, Articles 5 through 9 (§ 20-88.44 et seq.) do not apply and the tribunal shall apply the procedural and substantive law of the Commonwealth.

History. 2005, c. 754; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “outside the Commonwealth” wherever it appears; substituted “foreign support order” for “support order of a foreign country or political subdivision on the basis of comity”; deleted “another state” following “evidence from” and “of another state” following “a tribunal”; and substituted “Articles 5 through 9 (§ 20-88.44 et seq.)” for “Articles 5 (§ 20-88.44 et seq.) through 10 (§ 20-88.78 ) of this chapter.”

§ 20-88.43:2. Continuing, exclusive jurisdiction to modify spousal support order.

A court of the Commonwealth issuing a spousal support order consistent with the law of the Commonwealth has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.
A court of the Commonwealth may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
A court of the Commonwealth that has continuing, exclusive jurisdiction over a spousal support order may serve as:
1. An initiating court to request a tribunal of another state to enforce the spousal support order issued in the Commonwealth; or
2. A responding court to enforce or modify its own spousal support order.

History. 2005, c. 754; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or a foreign country” and “or foreign country” in subsection B.

Law Review.

For annual survey article, “Family Law,” see 48 U. Rich. L. Rev. 135 (2013).

CASE NOTES

Jurisdiction. —

Husband raised the issue of whether the trial court had to relinquish its continuing and exclusive jurisdiction over spousal support matters provided by § 20-88.43:2 because neither husband nor wife currently resided in Virginia, but the trial court’s order denying the husband’s motion was not a final order because there was no live controversy before the court; for example, a pending motion for modification of spousal support pursuant to § 20-109 . Because the trial court’s denial of the husband’s motion to dismiss was neither a final order nor an appealable interlocutory order within the meaning of § 17.1-405 , the appellate court did not have jurisdiction to hear an appeal. Kotara v. Kotara, 2009 Va. App. LEXIS 485 (Va. Ct. App. Nov. 3, 2009).

Transfer. —

Virginia circuit court erred in sua sponte transferring a husband’s appeal of a the denial of his motion to amend spousal support to a Louisiana court because it had continuing, exclusive jurisdiction to modify the spousal support order under § 20-88.43:2 .O'Neil v. O'Neil, 60 Va. App. 156, 724 S.E.2d 247, 2012 Va. App. LEXIS 132 (2012).

Article 5. Civil Provisions of General Application.

§ 20-88.44. Proceedings under this chapter.

Except as otherwise provided in this chapter, this article applies to all proceedings under this chapter.
An individual or a support enforcement agency may initiate a proceeding authorized under this chapter by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state or foreign country that has or can obtain personal jurisdiction over the respondent.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 deleted the former subsection B relating to “spousal support or child support,” redesignated former subsection C as present subsection B, in subsection B, substituted “initiate” for “commence” and “that” for “which.”

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or foreign country” in subsection B.

§ 20-88.45. Action by minor parent.

A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor’s child.

History. 1994, c. 673.

CASE NOTES

Necessity of statutory authorization for standing. —

An individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another unless authorized by the statute to do so. W.S. Carnes, Inc. v. Board of Supvrs., 252 Va. 377 , 478 S.E.2d 295, 1996 Va. LEXIS 102 (1996).

§ 20-88.46. Application of law of the Commonwealth.

Except as otherwise provided in this chapter, a responding tribunal of the Commonwealth shall apply the procedural and substantive law generally applicable to similar proceedings originating in the Commonwealth and may exercise all powers and provide all remedies available in those proceedings.

A responding tribunal of the Commonwealth shall determine the duty of support and the amount payable in accordance with the law and support guidelines of the Commonwealth.

History. 1994, c. 673; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754, substituted “the” for “this” throughout the section, in the first paragraph, substituted “in” for “by” and deleted “including the rules on choice of law.”

§ 20-88.47. Duties of initiating tribunal.

Upon the filing of a petition authorized by this chapter, an initiating tribunal of the Commonwealth shall forward the petition and its accompanying documents (i) to the responding tribunal or appropriate support enforcement agency in the responding state or, (ii) if the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
If requested by the responding tribunal, a tribunal of the Commonwealth shall issue a certificate or other documents and make findings required by the law of the responding state. If the responding tribunal is in a foreign country, upon request the tribunal of the Commonwealth shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported, and provide any other documents necessary to satisfy the requirements of the responding foreign tribunal.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “three copies of” preceding “the petition” in subsection A and rewrote subsection B.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subsection B, substituted “tribunal is in a foreign country, upon request the tribunal of the Commonwealth” for “state is a foreign country or political subdivision, upon request the tribunal”; and substituted “foreign tribunal” for “state” at the end.

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under former law corresponding to this section.

Initiating state reviews petition for sufficiency. —

Upon the execution and filing of a Uniform Reciprocal Enforcement of Support Act petition, the initiating state court reviews the petition’s sufficiency and determines whether it alleges facts “from which it may be determined that the obligor (appellant) owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property.” If sufficient, the petition is transmitted to the responding state where it becomes the basis of a civil support action against the obligor. Dickens v. Commonwealth, 2 Va. App. 72, 341 S.E.2d 392, 1986 Va. App. LEXIS 243 (1986).

The petition, being in the nature of a pleading, is inadmissible as evidence against the obligor in the responding state action. Dickens v. Commonwealth, 2 Va. App. 72, 341 S.E.2d 392, 1986 Va. App. LEXIS 243 (1986).

Upon receipt of the transmitted Uniform Reciprocal Enforcement of Support Act petition, the trial court of the responding state reviews the petition and determines whether it is sufficient to meet the requirements of the laws of the responding state. At that stage the petition is no more than a pleading which contains allegations made for the purpose of presenting the issue to be tried. It confines the introduction of evidence to the relevancy of the issue thus made. Dickens v. Commonwealth, 2 Va. App. 72, 341 S.E.2d 392, 1986 Va. App. LEXIS 243 (1986).

No time limit between execution of petition and trial. —

There is nothing in the Uniform Reciprocal Enforcement of Support Act statutes which prescribes a time limit between the execution of the petition or accompanying affidavits and the trial. The Revised Uniform Reciprocal Enforcement of Support Act, being remedial in nature, should be liberally construed so that its purpose of providing support for dependent children may be achieved. If there is to be a time limitation on supporting affidavits, it is a matter for declaration by the legislature, not the courts. Dickens v. Commonwealth, 2 Va. App. 72, 341 S.E.2d 392, 1986 Va. App. LEXIS 243 (1986).

§ 20-88.48. Duties and powers of responding tribunal.

When a responding tribunal of the Commonwealth receives a petition or comparable pleading from an initiating tribunal or directly pursuant to subsection B of § 20-88.44 , it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed. An order for spousal support only shall be forwarded to the appropriate juvenile and domestic relations court.
A responding tribunal of the Commonwealth, to the extent not prohibited by other law, may do one or more of the following:
1. Establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of a child;
2. Order an obligor to comply with a support order, specifying the amount and the manner of compliance;
3. Order income withholding;
4. Determine the amount of any arrearages, and specify a method of payment;
5. Enforce orders by civil or criminal contempt, or both;
6. Set aside property for satisfaction of the support order;
7. Place liens and order execution on the obligor’s property;
8. Order an obligor to keep the tribunal informed of the obligor’s current residential address, electronic mail address, telephone number, employer, address of employment, and telephone number at the place of employment;
9. Issue a capias for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the capias in any local and state computer systems for criminal warrants;
10. Order the obligor to seek appropriate employment by specified methods;
11. Award reasonable attorney’s fees and other fees and costs; and
12. Grant any other available remedy.
A responding tribunal of the Commonwealth shall include in a support order issued under this chapter, or in the documents accompanying the order, the calculations on which the support order is based.
A responding tribunal of the Commonwealth may not condition the payment of a support order issued under this chapter upon compliance by a party with provisions for visitation.
If a responding tribunal of the Commonwealth issues an order under this chapter, the tribunal shall promptly send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of the Commonwealth shall convert the amount stated in the foreign currency to the equivalent amount in U.S. dollars under the applicable official or market exchange rate as publicly reported.

History. 1994, c. 673; 1996, cc. 882, 925; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “the” for “this” throughout the section, deleted “or family” near the end of subsection A, substituted “not prohibited by other law” for “otherwise authorized” in subdivision B, substituted “determine the controlling child support order, or determine parentage” for “or render a judgment to determine parentage” in subdivision B 1, added subsection F and made a minor stylistic change.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subdivision B 1, substituted “Establish” for “Issue,” and added “of a child” at the end; added “electronic mail address” in subdivision B 8.

§ 20-88.49. Inappropriate tribunal.

If a petition or comparable pleading is received by an inappropriate tribunal of this Commonwealth, it shall forward the pleading and accompanying documents to an appropriate tribunal in this Commonwealth or another state, and notify the petitioner where and when the pleading was sent.

History. 1994, c. 673; 1997, cc. 797, 897.

CASE NOTES

Court lacked authority to transfer. —

As a circuit court lacked subject matter jurisdiction over a father’s motion to modify child support because the support order was entered by another circuit court, neither § 8.01-265 nor § 20-88.49 authorized the trial court to transfer the case, rather than dismiss it. Williams v. Williams, 61 Va. App. 170, 734 S.E.2d 186, 2012 Va. App. LEXIS 387 (2012).

CIRCUIT COURT OPINIONS

Court lacked authority to transfer. —

Circuit Court for the City of Norfolk could not transfer a case to the Norfolk Juvenile and Domestic Relations District Court or the Circuit Court of the City of Chesapeake after finding that the Circuit Court for the City of Norfolk did not have subject matter jurisdiction since: (1) § 16.1-297 allowed Circuit Court for the City of Norfolk to remand a case to the Norfolk Juvenile and Domestic Relations District Court upon the rendition of final judgment upon an appeal, but the parties’ motions to amend child and spousal support were not before the circuit court on appeal and the circuit court’s order was not a final judgment; (2) § 20-79(c) did not apply as the circuit court was not making an order regarding support; and (3) § 20-88.49 had been construed as a venue statute. Cunningham v. Cunningham, 86 Va. Cir. 202, 2013 Va. Cir. LEXIS 10 (Norfolk Jan. 24, 2013).

§ 20-88.50. Duties of support enforcement agency.

A support enforcement agency of the Commonwealth, upon request, shall provide services to a petitioner in a proceeding under this chapter.
In a proceeding under this chapter, a support enforcement agency of the Commonwealth that is providing services to the petitioner shall:
1. Take all steps necessary to enable an appropriate tribunal of the Commonwealth, another state, or a foreign country to obtain jurisdiction over the respondent;
2. Request an appropriate tribunal to set a date, time, and place for a hearing;
3. Make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
4. Within two days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written notice in a record from an initiating, responding, or registering tribunal, send a copy of the notice to the petitioner;
5. Within two days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written communication in a record from the respondent or the respondent’s attorney, send a copy of the communication to the petitioner; and
6. Notify the petitioner if jurisdiction over the respondent cannot be obtained.
A support enforcement agency of the Commonwealth that requests registration of a child support order in the Commonwealth for enforcement or for modification shall make reasonable efforts to ensure that:
1. The order to be registered is the controlling order; or
2. If two or more child support orders exist and the identity of the controlling order has not been determined, a request for such a determination is made in a tribunal having jurisdiction to do so.
A support enforcement agency of the Commonwealth that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in U.S. dollars under the applicable official or market exchange rate as publicly reported.
A support enforcement agency of the Commonwealth shall issue or request a tribunal of the Commonwealth to issue a child support order and an income-withholding order that redirects payment of current support, arrears, and interest to a support enforcement agency of the Commonwealth if requested to do so by a support enforcement agency of another state pursuant to § 20-88.62 .
This chapter does not create a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754, in subsection A, inserted “of the Commonwealth” and deleted “as appropriate,” inserted “in a record” in subdivisions A 4 and A 5, added subsections B, C and D, redesignated former subsection B as subsection E, and deleted “or negate” following “create” in subsection E and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted the subsection B designation and renumbered the remaining subsections accordingly; inserted “In a proceeding under this chapter,” at the beginning of subsection B; substituted “of the Commonwealth, another state, or a foreign country” for “in the Commonwealth or another state” in subdivision B 1; and made minor stylistic changes.

§ 20-88.51. Duty of Secretary of Health and Human Resources.

If the Secretary of Health and Human Resources determines that the support enforcement agency is neglecting or refusing to provide services to an individual, he may order the agency to perform its duties under this chapter or may provide those services directly to the individual.
The Secretary of Health and Human Resources may determine that a foreign country has established a reciprocal arrangement for child support with the Commonwealth and take appropriate action for notification of the determination.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “Secretary of Health and Human Resources” for “attorney for the Commonwealth” in the first paragraph and added the last paragraph.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted the subsection A and B designations; deleted “or political subdivision” following “a foreign country” in subsection B.

§ 20-88.52. Private counsel.

An individual may employ private counsel to represent the individual in proceedings authorized by this chapter.

History. 1994, c. 673.

§ 20-88.53. Duties of state information agency.

The Department of Social Services is the state information agency under this chapter.
The state information agency shall:
1. Compile and maintain a current list, including addresses, of the tribunals in the Commonwealth that have jurisdiction under this chapter and any support enforcement agencies in the Commonwealth and transmit a copy to the state information agency of every other state;
2. Maintain a register of names and addresses of tribunals and support enforcement agencies received from other states;
3. Forward to the appropriate tribunal in the county or city in the Commonwealth in which the obligee who is an individual or the obligor resides, or in which the obligor’s property is believed to be located, all documents concerning a proceeding under this chapter received from another state or a foreign country; and
4. Obtain information concerning the location of the obligor and the obligor’s property within the Commonwealth not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor’s address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver’s licenses, and social security.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754, in subdivision B 3, substituted “county or city” for “place,” “obligee who in an individual” for “individual obligee” and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “names and addresses of” in subdivision B 2; substituted “another state or a foreign country” for “an initiating tribunal or the state information agency of the initiating state” in subdivision B 3; and made minor stylistic changes.

§ 20-88.54. Pleadings and accompanying documents.

In a proceeding under this chapter, a petitioner seeking to establish a support order, to determine parentage of a child, or to register and modify a support order of a tribunal of another state or a foreign country shall file a petition. Unless otherwise ordered under § 20-88.55 , the petition or accompanying documents shall provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee or the parent and alleged parent, and the name, sex, residential address, social security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the petition shall be accompanied by a copy of any support order known to have been issued by another tribunal. The petition may include any other information that may assist in locating or identifying the respondent.
The petition shall specify the relief sought. The petition and accompanying documents shall conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote subsection A and substituted “shall” for “must” in two places in subsection B.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “of a child,” “of a tribunal,” and “or a foreign country” in the first sentence of subsection A.

CASE NOTES

Editor’s note.

The case cited below was decided under former law corresponding to this section.

Obligor must be found and served in Virginia. —

Despite the registration of a foreign decree, the obligor must be found in Virginia and served with process before a Virginia court can proceed against him. Stephens v. Stephens, 229 Va. 610 , 331 S.E.2d 484, 1985 Va. LEXIS 239 (1985).

Registration of decree and personal service out of state are insufficient. —

Registration of a foreign decree in Virginia, pursuant to Revised Uniform Reciprocal Enforcement of Support Act, coupled with personal service on the defendant in a foreign jurisdiction, is not sufficient to create in personam jurisdiction over the defendant in Virginia. Stephens v. Stephens, 229 Va. 610 , 331 S.E.2d 484, 1985 Va. LEXIS 239 (1985).

§ 20-88.55. Nondisclosure of information in exceptional circumstances.

Upon a finding, which may be made ex parte, that the health, safety, or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this chapter.

History. 1994, c. 673.

§ 20-88.56. Costs and fees.

The petitioner may not be required to pay a filing fee or other costs.
If an obligee prevails, a responding tribunal of the Commonwealth may assess against an obligor filing fees, reasonable attorney’s fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee’s witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state or foreign country, except as provided by other law. Attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney’s own name. Payment of support owed to the obligee has priority over fees, costs and expenses.
The tribunal shall order the payment of costs and reasonable attorney’s fees if it determines that a hearing was requested primarily for delay. In a proceeding under Articles 8 (§ 20-88.66 et seq.) and 9 (§ 20-88.74 et seq.), a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “Articles 8 (§ 20-88.66 et seq.) and 9 (§ 20-88.74 et seq.) of this chapter” for “Article 6 (§ 20-88.63 et seq.)” in subsection C.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subsection B, inserted “of the Commonwealth” in the first sentence and inserted “or foreign country” in the second sentence; and deleted “of this chapter” following “9 (§ 20-88.74 et seq.)” in subsection C.

§ 20-88.57. Limited immunity of petitioner.

Participation by a petitioner in a proceeding under this chapter before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
A petitioner is not amenable to service of civil process while physically present in the Commonwealth to participate in a proceeding under this chapter.
The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this chapter committed by a party while present in the Commonwealth to participate in the proceeding.

History. 1994, c. 673; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 inserted “under this chapter” in subsection A and substituted “the” for “this” in subsections B and C.

§ 20-88.58. Nonparentage as defense.

A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter.

History. 1994, c. 673.

§ 20-88.59. Special rules of evidence and procedure.

The physical presence of a nonresident party who is an individual in a tribunal of the Commonwealth is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them that would not be excluded under the hearsay rule if given in person is admissible in evidence if given under penalty of perjury by a party or witness residing outside the Commonwealth.
A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it and is admissible to show whether payments were made.
Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least 10 days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
Documentary evidence transmitted from outside the Commonwealth to a tribunal of the Commonwealth by telephone, telecopier, or other electronic means that does not provide an original record may not be excluded from evidence upon an objection based on the means of transmission.
In a proceeding under this chapter, a tribunal of the Commonwealth shall permit a party or witness residing outside the Commonwealth to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of the Commonwealth shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
A privilege against disclosure of communication between spouses does not apply in a proceeding under this chapter.
The defense of immunity based on the relationship between spouses or of parent and child does not apply in a proceeding under this chapter.
A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727; 2020, c. 900.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “a nonresident party who is an individual in a tribunal” for “the petitioner in a responding tribunal” in subsection A, rewrote subsection B, in subsection E, substituted “record” for “writing” and “upon” for “of”, added subsection J and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “outside the Commonwealth” for “in another state” and variants wherever it appears; substituted “parentage of a child” for “parentage” in subsections A and D; added “electronic” in subsection E; in subsection F, inserted “under penalty of perjury,” deleted “in that state” following “location” in the first sentence and substituted “other tribunals” for “tribunals of other states” in the last sentence.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “between spouses or of” for “of husband and wife or” in subsection I.

CASE NOTES

Assertion by non-party witness of right to avoid self-incrimination. —

While the statute allows the trier of fact to draw an adverse inference from the refusal of a party to answer on the grounds of self-incrimination, it does not provide that the same adverse inference may be drawn when a non-party witness asserts the right to avoid self-incrimination. Helbert, Jr. v. Helbert, 1998 Va. App. LEXIS 455 (Va. Ct. App. Aug. 25, 1998).

Parol evidence properly considered. —

Trial court properly interpreted a foreign judgment, which incorporated the parties’ child support agreement, after considering parol evidence as the agreement was ambiguous in requiring the husband to contribute part of his support payment toward daycare when the cost of daycare increased, plus a portion of that increased daycare cost. Andreoni v. Andreoni, 2004 Va. App. LEXIS 69 (Va. Ct. App. Feb. 10, 2004).

§ 20-88.60. Communications between tribunals.

A tribunal of the Commonwealth may communicate with a tribunal outside the Commonwealth in a record, or by telephone, electronic mail, or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal; and the status of a proceeding. A tribunal of the Commonwealth may furnish similar information by similar means to a tribunal outside the Commonwealth.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 inserted “or foreign country or political subdivision” in three places, substituted “a record” for “writing,” deleted “of that state” following “the laws” and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, twice substituted “outside the Commonwealth” for “of another state or foreign country or political subdivision”; and in the first sentence inserted “electronic mail” and deleted “in the other state or foreign country or political subdivision” at the end.

§ 20-88.61. Assistance with discovery.

A tribunal of the Commonwealth may (i) request a tribunal outside the Commonwealth to assist in obtaining discovery and (ii) upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside the Commonwealth.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “the Commonwealth” for “this Commonwealth” and twice substituted “outside the Commonwealth” for “of another state.”

§ 20-88.62. Receipt and disbursement of payments.

A support enforcement agency or tribunal of the Commonwealth shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The support enforcement agency or tribunal shall furnish to a requesting party or tribunal of another state or a foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.
If neither the obligor, nor the obligee who is an individual, nor the child resides in the Commonwealth, upon request from the support enforcement agency of the Commonwealth or another state, the support enforcement agency of the Commonwealth or a tribunal of the Commonwealth shall:
1. Order that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and
2. Issue and send to the obligor’s employer a conforming income-withholding order or an administrative notice of change of payee, reflecting the redirected payments.
The support enforcement agency of the Commonwealth receiving redirected payments from another state pursuant to a law similar to subsection B shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 inserted the A designation and “support enforcement,” added subsections B and C and made a minor stylistic change.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, added “or a foreign country” in the second sentence of subsection A.

Article 6. Establishment of Support Order or Determination of Parentage.

§ 20-88.63. Establishment of support order.

If a support order entitled to recognition under this chapter has not been issued, a responding tribunal of the Commonwealth with personal jurisdiction over the parties may issue a support order if (i) the individual seeking the order resides outside the Commonwealth or (ii) the support enforcement agency seeking the order is located outside the Commonwealth.
The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
1. A presumed father of the child;
2. Petitioning to have his paternity adjudicated;
3. Identified as the father of the child through genetic testing;
4. An alleged father who has declined to submit to genetic testing;
5. Shown by clear and convincing evidence to be the father of the child;
6. An acknowledged father as provided by applicable state law;
7. The mother of the child; or
8. An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to § 20-88.48 .

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote subsection B and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “with personal jurisdiction over the parties” and twice substituted “outside the Commonwealth” for “in another state” in subsection A.

§ 20-88.63:1. Proceeding to determine parentage.

A tribunal of the Commonwealth authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this chapter or a law or procedure substantially similar to this chapter.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this section effective April 15, 2015, by emergency.

Article 7. Enforcement of Order Without Registration.

§ 20-88.64. Employer’s receipt of income-withholding order of another state.

An income-withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person or entity defined as the obligor’s employer as defined in § 63.2-1900 under the income-withholding law of the Commonwealth without first filing a petition or comparable pleading or registering the order with a tribunal of the Commonwealth.

History. 1994, c. 673; 1997, cc. 797, 897; 1998, c. 727; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 inserted “by or on behalf of the obligee, or by the support enforcement agency” and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, deleted “by a tribunal” following “An income-withholding order issued.”

Law Review.

For an article, “Domestic Relations,” see 31 U. Rich. L. Rev. 1069 (1997).

§ 20-88.64:1. Employer’s compliance with income-withholding order of another state.

Upon receipt of an income-withholding order, the obligor’s employer shall immediately provide a copy of the order to the obligor. The employer shall treat an income-withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of the Commonwealth.
Except as provided in subsection C and § 20-88.64:2 , the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order, as applicable, that specify:
1. The duration and amount of periodic payments of current child support, stated as a sum certain;
2. The individual or support enforcement agency designated to receive payments and the address to which the payments are to be forwarded;
3. Medical support, whether in the form of periodic cash payments, stated as a sum certain or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor’s employer;
4. The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee’s attorney, stated as sums certain; and
5. The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
An employer shall comply with the law of the state of the obligor’s principal place of employment for withholding from income with respect to:
1. The employer’s fee for processing an income-withholding order;
2. The maximum amount permitted to be withheld from the obligor’s income; and
3. The times within which the employer shall implement the withholding order and forward the child support payment.

History. 1997, cc. 797, 897; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “an income-withholding order” for “the order” in subsection A, “individual or support enforcement” for “person” in subdivision B 2, and made minor stylistic changes.

§ 20-88.64:2. Compliance with two or more income-withholding orders.

If an obligor’s employer receives two or more income-withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor’s principal place of employment to establish priorities for withholding and allocating income withheld for two or more child support obligees.

History. 1997, cc. 797, 897; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “two or more” for “multiple” in two places and deleted “multiple” preceding “orders.”

§ 20-88.64:3. Immunity from civil liability.

An employer that complies with an income-withholding order issued in another state in accordance with this article is not subject to civil liability to an individual or agency with regard to the employer’s withholding child support from the obligor’s income.

History. 1997, cc. 797, 897; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “An employer that” for “An employer who” and “an individual” for “any individual.”

§ 20-88.64:4. Penalties for noncompliance.

An employer that willfully fails to comply with an income-withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of the Commonwealth.

History. 1997, cc. 797, 897; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “An employer that” for “An employer who” and “the Commonwealth” for “this Commonwealth.”

§ 20-88.64:5. Contest by obligor.

An obligor may contest the validity or enforcement of an income-withholding order issued in another state and received directly by an employer in the Commonwealth by registering the order in a tribunal of the Commonwealth and filing a contest to that order as provided in this chapter or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of the Commonwealth.
The obligor shall give notice of the contest to (i) a support enforcement agency providing services to the obligee, (ii) each employer that has directly received an income-withholding order relating to the obligor, and (iii) the support enforcement agency designated to receive payments in the income-withholding order.

History. 1997, cc. 797, 897; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

§ 20-88.65. Administrative enforcement of orders.

A party or support enforcement agency seeking to enforce a foreign support order, or a support order or an income-withholding order, or both, issued in another state, may send the documents required for registering the order to a support enforcement agency of the Commonwealth.
Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of the Commonwealth to enforce a support order or an income-withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this chapter.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 inserted “or support enforcement agency” near the beginning of subsection A.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subsection A, inserted “foreign support order, or a” and substituted “issued in” for “issued by a tribunal of”; and made minor stylistic changes.

Article 8. Enforcement and Modification of Support Order After Registration.

§ 20-88.66. Registration of order for enforcement.

A foreign support order, or a support order or an income-withholding order issued in another state, may be registered in the Commonwealth for enforcement.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “A foreign support order, or a support order or an income-withholding order issued in another state” for “A support order or an income-withholding order issued by a tribunal of another state”; and made a minor stylistic change.

CASE NOTES

Editor’s note.

Some of the cases cited below were decided under former law corresponding to this section.

Initiating state reviews petition for sufficiency. —

No time limit between execution of petition and trial. —

Out-of-state order not registerable. —

Out-of-state order properly registered. —

Pursuant to the Uniform Interstate Family Support Act, § 20-88.66 , the trial court did not err in registering a 1997 North Carolina child support order, which applied the duration term set forth in a 1994 New York child support order, because the 1994 New York order was not modified and remained in full force and effect through the 1997 North Carolina order’s saving language; the 1997 North Carolina order provided that all provisions of previous orders not modified therein would remain in full force and effect. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714, 2012 Va. App. LEXIS 320 (2012).

§ 20-88.67. Procedure to register order for enforcement.

Except as provided in § 20-88.88 , a foreign support order or a support order or income-withholding order of another state may be registered in the Commonwealth by sending the following records to the appropriate tribunal in the Commonwealth:
1. A letter of transmittal to the tribunal requesting registration and enforcement;
2. Two copies, including one certified copy, of the order to be registered, including any modification of the order;
3. A sworn statement by the party requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
4. The name of the obligor and, if known, (i) the obligor’s address and social security number, (ii) the name and address of the obligor’s employer and any other source of income of the obligor, and (iii) a description and the location of property of the obligor in the Commonwealth not exempt from execution; and
5. Except as otherwise provided in § 20-88.55 , the name and address of the obligee and, if applicable, the support enforcement agency to whom support payments are to be remitted.
On receipt of a request for registration, the registering tribunal shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form.
A petition or comparable pleading seeking a remedy that shall be affirmatively sought under other law of the Commonwealth may be filed at the same time as the request for registration or later. The pleading shall specify the grounds for the remedy sought.
If two or more orders are in effect, the individual or support enforcement agency requesting registration shall:
1. Furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
2. Specify the order alleged to be the controlling order, if any; and
3. Specify the amount of consolidated arrears, if any.
A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The individual or support enforcement agency requesting registration shall give notice of the request to each party whose rights may be affected by the determination.

History. 1994, c. 673; 1995, c. 484; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754, in subsection A, substituted “records” for “documents,” “tribunal in the Commonwealth” for “registering tribunal,” “the order” for “all orders” in subdivision A 2, “requesting” for “seeking” in subdivision A 3, rewrote subdivision A 5, deleted the last sentence in subsection B which read: “Requests for registration received by the circuit courts during the period July 1, 1994, through June 30, 1995, shall similarly be filed as foreign support orders,” added subsections D and E and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subsection A, substituted “Except as provided in § 20-88.88 , a foreign support order or a support order” for “A support order” and deleted “and information” following “records”; and inserted “an order of a tribunal of another state or” in subsection B.

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 18 Enforcement of Judgments and Decrees. § 18.02 Common Law. Bryson.

CASE NOTES

Error in refusal to register order. —

Where no valid pre-existing order existed, and where the record revealed that the husband followed the requirements of this section in attempting to register the order of the North Carolina district court in the county juvenile court in Virginia, the juvenile court and the circuit court erred in refusing to register the order. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

Trial court erred in concluding that foreign order for reimbursement of public assistance was not subject to registration under this act, since only reasonable interpretation of order was that benefits for which foreign jurisdiction sought reimbursement were paid on behalf of appellee’s child. Department of Social Servs. v. Carlton, 2000 Va. App. LEXIS 143 (Va. Ct. App. Feb. 29, 2000).

Foreign order unenforceable due to failure to comply with statute. —

Where a circuit court did not base its rejection of a Jordanian child support order on a comity analysis, but ruled that the order was unenforceable because it had not been registered pursuant to this section, the record afforded no basis for the appellate court to entertain a father’s argument that registration was not indispensable to the enforceability of a foreign order and that such an order, though not registered, could be enforced by comity. Jariri v. Div. of Child Support Enforcement, 2004 Va. App. LEXIS 555 (Va. Ct. App. Nov. 16, 2004).

§ 20-88.68. Effect of registration for enforcement.

A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of the Commonwealth.
A registered support order issued in another state or in a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of the Commonwealth.
Except as otherwise provided in this chapter, a tribunal of the Commonwealth shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or a foreign support order” in subsection A; substituted “support order issued in another state or in a foreign country” for “order issued in another state” in subsection B; substituted “chapter” for “article” in subsection C; and made minor stylistic changes.

CASE NOTES

Issue was post-majority support in Virginia not Illinois order interpretation. —

Where mother contended that 1991 Illinois order set the level of post-majority child support, the trial court’s interpretation of the Illinois support order was not at issue. Rather, the issue presented on appeal concerned the level of post-majority child support that courts in Virginia could enforce. The trial court correctly ruled that because son was no longer a minor, the trial court’s authority to order support for him was limited to the amount provided for in the separation agreement, $500 per month. Parks v. Parks, 1998 Va. App. LEXIS 85 (Va. Ct. App. Feb. 10, 1998).

§ 20-88.69. Choice of law; statute of limitations.

Except as otherwise provided in subsection D, the law of the issuing state or foreign country governs (i) the nature, extent, amount, and duration of current payments under a registered support order; (ii) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and (iii) the existence and satisfaction of other obligations under the support order.
In a proceeding for arrears under a registered support order, the statute of limitations of the Commonwealth or of the issuing state or foreign country, whichever is longer, applies.
A responding tribunal of the Commonwealth shall apply the procedures and remedies of the Commonwealth to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in the Commonwealth.
After a tribunal of the Commonwealth or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of the Commonwealth shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote subsection A, in subsection B, substituted “arrears under a registered support order” for “arrearages,” “of the Commonwealth” for “under the laws of this Commonwealth” and added subsections C and D.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or foreign country” for “or a foreign country” following “state” throughout.

CASE NOTES

California was issuing state where New York court modified California order. —

Issue was post-majority support in Virginia not Illinois order interpretation. —

State where order entered determines age of emancipation. —

The fact that a father would have been relieved of the obligation to pay child support under the substantive law of Virginia when his son reached the age of 18 was irrelevant where the record demonstrated that, under the law of New Jersey where the support order was entered, the son was not emancipated until he was approximately 24 years old. Slawski v. Commonwealth ex rel. Slawski, 2000 Va. App. LEXIS 338 (Va. Ct. App. May 9, 2000).

Foreign order for support past majority may be enforced. —

§ 20-88.70. Notice of registration of order; contest of validity or enforcement.

When a support order or income-withholding order issued in another state or a foreign support order is registered, the registering tribunal of the Commonwealth shall notify the nonregistering party. The notice shall be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
A notice shall inform the nonregistering party:
1. That a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of the Commonwealth;
2. That a hearing to contest the validity or enforcement of the registered order shall be requested within 20 days after the notice unless the registered order is under § 20-88.89 ;
3. That failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted; and
4. Of the amount of any alleged arrearages.
If the registering party asserts that two or more orders are in effect, a notice shall also:
1. Identify the two or more orders and the order alleged by the party to be the controlling order and the consolidated arrears, if any;
2. Notify the nonregistering party of the right to a determination of which is the controlling order;
3. State that the procedures provided in subsection B apply to the determination of which is the controlling order; and
4. State that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.
Upon registration of an income-withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor’s employer pursuant to the income-withholding for support law of the Commonwealth.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “shall” for “must” throughout, added present subsection C, redesignated former subsection C as subsection D and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “or a foreign support order” and “of the Commonwealth” in the first sentence of subsection A; added “unless the registered order is under § 20-88.89 ” to subdivision B 2; substituted “party” for “registering individual or support enforcement agency or individual” in subdivision C 1; and inserted “support enforcement agency or the” in subsection D.

§ 20-88.71. Procedure to contest validity or enforcement of registered support order.

A nonregistering party seeking to contest the validity or enforcement of a registered support order in the Commonwealth shall request a hearing within the time required by § 20-88.70 . The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to § 20-88.72 .
If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.
If a nonregistering party requests a hearing to contest the validity or enforcement of the registered support order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

History. 1994, c. 673; 1997, cc. 797, 897; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, added “support” wherever it appears; substituted “the time required by § 20-88.70 ” for “twenty days after notice of the registration” in subsection A; and made minor stylistic changes.

Law Review.

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under a former law corresponding to this section.

Former § 20-88.18 inapplicable when request based on registered foreign order. —

The conflict of laws rule in former § 20-88.18 becomes necessary only when the request for support is not based upon a foreign state court order. When the request for support is based upon another state’s support order, subsection A of former § 20-88.18 declares that the registered support order shall be treated in the same manner as a support order issued by a Virginia court. Consequently, former § 20-88.18 is inapplicable when the support request is based upon former §§ 20-88.30:1 through 20-88.30:6. Scott v. Sylvester, 220 Va. 182 , 257 S.E.2d 774, 1979 Va. LEXIS 252 (1979).

The terms “support order,” “judgment” and “money judgment” as used in URESA sections and former § 8.01-252 are not identical for purposes of the application of these statutes to a particular support order. Bennett v. Commonwealth, Dep't of Social Servs. ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458, 9 Va. Law Rep. 358, 1992 Va. App. LEXIS 246 (1992).

Decrees enforceable even when not entitled to full faith and credit. —

A foreign divorce decree which does not possess such a degree of finality as to be entitled to full faith and credit under the mandate of the federal Constitution may be recognized and treated with the same force and effect as if it had been entered in this State under the doctrine of comity; such a result is mandated by this chapter. Scott v. Sylvester, 220 Va. 182 , 257 S.E.2d 774, 1979 Va. LEXIS 252 (1979).

This chapter required the state court to recognize and enforce a foreign alimony decree even though the decree did not possess such a degree of finality as to be entitled to the full faith and credit mandate of the federal Constitution. Alig v. Alig, 220 Va. 80 , 255 S.E.2d 494, 1979 Va. LEXIS 236 (1979).

Questions of modification must be considered. —

In enforcing a foreign decree for alimony arrearages under the comity doctrine, due process requires that a court consider any questions of modification raised by either party which could have been presented to the courts of the state where the decree was originally entered. Alig v. Alig, 220 Va. 80 , 255 S.E.2d 494, 1979 Va. LEXIS 236 (1979).

Since this chapter compels the enforcement in Virginia of a registered, though modifiable, foreign decree, it is all the more essential that the parties subject to its terms be accorded all the substantive rights regarding modification granted them in the issuing state. Due process requires no less. A trial judge is correct in applying the law of the issuing state to the retroactive modification issue. Scott v. Sylvester, 225 Va. 304 , 302 S.E.2d 30, 1983 Va. LEXIS 221, cert. denied, 464 U.S. 961, 104 S. Ct. 395, 78 L. Ed. 2d 338, 1983 U.S. LEXIS 2270 (1983).

Michigan divorce decree not subject to modification. —

Where Michigan decrees, once registered, were to be treated in the same manner as support orders issued by a court of this Commonwealth, and because more than 21 days had expired after their entry, the two Michigan decrees were final and not subject to modification; they were subject to being vacated only upon proof that they were based upon deficient jurisdiction or upon extrinsic fraud. Trevino v. Talmadge, 17 Va. App. 514, 438 S.E.2d 489, 10 Va. Law Rep. 671, 1993 Va. App. LEXIS 623 (1993).

Full amount of arrearages under decree recoverable. —

In an action brought under this chapter to recover arrearages for child support under a divorce decree entered by the Circuit Court of Montgomery County, Maryland, the trial court had jurisdiction to order payment of the full amount of arrearages accruing under the Maryland order, rather than only the arrearages which accrued while the defendant was in Virginia. Scott v. Sylvester, 220 Va. 182 , 257 S.E.2d 774, 1979 Va. LEXIS 252 (1979).

No time limitation to obtain money judgment for support arrearages. —

Where the foreign support order merely establishes an ongoing, unliquidated spousal support obligation, the Revised Uniform Reciprocal Enforcement of Support Act, like the general law of this Commonwealth, provides no time limitation within which the obligee spouse may obtain a money judgment for the arrearages accumulated under such an order. Bennett v. Commonwealth, Dep't of Social Servs. ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458, 9 Va. Law Rep. 358, 1992 Va. App. LEXIS 246 (1992).

Defenses not applicable where order establishes ongoing, unliquidated support obligation. —

Because a support order that establishes an ongoing, unliquidated support obligation, is essentially different from a money judgment, the provisions of subsection C permitting obligor spouse to assert defenses available to him “in an action to enforce a foreign money judgment” are not applicable. Bennett v. Commonwealth, Dep't of Social Servs. ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458, 9 Va. Law Rep. 358, 1992 Va. App. LEXIS 246 (1992).

Out-of-state court presumed to have acted in accordance with law. —

Where North Carolina court, which had jurisdiction over the URESA petition, was the responding court, absent proof to the contrary, the North Carolina court is presumed to have acted in accordance with the applicable law. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

Enforcement of foreign support orders in URESA proceedings. —

In a Uniform Reciprocal Enforcement of Support Act (URESA) proceeding where a foreign support order merely establishes an ongoing, unliquidated spousal support obligation, the provisions of former § 8.01-252 are not applicable. Once a Virginia judgment for a sum certain for accumulated support arrearages is obtained, § 8.01-251 controls the time within which that judgment may be enforced in this Commonwealth. However, in a URESA proceeding where the foreign support order adjudicates a sum certain due and owing, former § 8.01-252 acts as a cutoff provision and operates an an outside limit in which the URESA proceeding must be commenced. Bennett v. Commonwealth, Dep't of Social Servs. ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458, 9 Va. Law Rep. 358, 1992 Va. App. LEXIS 246 (1992).

§ 20-88.72. Contest of registration or enforcement.

A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
1. The issuing tribunal lacked personal jurisdiction over the contesting party;
2. The order was obtained by fraud;
3. The order has been vacated, suspended, or modified by a later order;
4. The issuing tribunal has stayed the order pending appeal;
5. There is a defense under the law of the Commonwealth to the remedy sought;
6. Full or partial payment has been made;
7. The statute of limitations under § 20-88.69 precludes enforcement of some or all of the alleged arrearages; or
8. The alleged controlling order is not the controlling order.
If a party presents evidence establishing a full or partial defense under subsection A, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of the Commonwealth.
If the contesting party does not establish a defense under subsection A to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 inserted “alleged” in subdivision A 7, added subdivision A 8 and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, substituted “registered support order” for “registered order” throughout the section; substituted “a registered support order” for “the order” in subsection C; and made minor stylistic changes.

CASE NOTES

Adequate remedy at law does not bar registration. —

This section does not bar registration of an order if there is an “adequate remedy at law” but, instead, provides a defense in instances where there is “a defense under the law of this Commonwealth to the remedy sought.” Slawski v. Commonwealth ex rel. Slawski, 2000 Va. App. LEXIS 338 (Va. Ct. App. May 9, 2000).

Indigency is not a defense to registration of an order pursuant to this section. Slawski v. Commonwealth ex rel. Slawski, 2000 Va. App. LEXIS 338 (Va. Ct. App. May 9, 2000).

Virginia law on emancipation inapplicable. —

A father did not have a defense under the laws of Virginia, even though Virginia law would have relieved him of the obligation to support his son once the son was 18 years old, where the support order in question was entered in New Jersey, the son was not emancipated under New Jersey law until he was approximately 24 years old, and where New Jersey law was controlling pursuant to subsection A of § 20-88.69 .Slawski v. Commonwealth ex rel. Slawski, 2000 Va. App. LEXIS 338 (Va. Ct. App. May 9, 2000).

§ 20-88.73. Confirmed order.

Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the support order with respect to any matter that could have been asserted at the time of registration.

History. 1994, c. 673; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, twice inserted “support” preceding “order.”

Article 9. Registration and Modification of Child Support Order.

§ 20-88.74. Procedure to register child support order of another state for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this Commonwealth in the same manner as provided in Article 8 (§ 20-88.66 et seq.) if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.

History. 1994, c. 673; 1997, c. 69.

§ 20-88.75. Effect of registration for modification.

A tribunal of the Commonwealth may enforce a child support order of another state, registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of the Commonwealth, but the registered support order may be modified only if the requirements of § 20-88.76 or 20-88.77:1 have been met.

History. 1994, c. 673; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 substituted “the” for “this” in two places and inserted “20-88.77:1 or 20-88.77:3 .”

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, inserted “support” and substituted “§ 20-88.76 or 20-88.77:1 ” for “§ 20-88.76 , 20-88.77:1 or 20-88.77:3 .”

§ 20-88.76. Modification of child support order of another state.

If § 20-88.77:1 does not apply, upon petition a tribunal of the Commonwealth may modify a child support order, issued in another state, that is registered in the Commonwealth if, after notice and hearing, the tribunal finds that:
1. The following requirements are met:
  1. Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
  2. A petitioner who is a nonresident of the Commonwealth seeks modification; and
  3. The respondent is subject to the personal jurisdiction of the tribunal of the Commonwealth; or
2. The Commonwealth is the residence of the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of the Commonwealth and all of the individual parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of the Commonwealth to modify the support order and assume continuing, exclusive jurisdiction.
Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of the Commonwealth and the order may be enforced and satisfied in the same manner.
A tribunal of the Commonwealth may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls and shall be so recognized under § 20-88.41 establishes the aspects of the support order which are nonmodifiable.
In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of the Commonwealth.
On issuance of an order by a tribunal of the Commonwealth modifying a child support order issued in another state, the tribunal of the Commonwealth becomes the tribunal having continuing, exclusive jurisdiction.
Notwithstanding subsections A through E and § 20-88.35 , a tribunal of the Commonwealth retains jurisdiction to modify an order issued by a tribunal of the Commonwealth if one party resides in another state and the other party resides outside the United States.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754; 2015, c. 727.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote subsection A, in subsection C, inserted “Except as otherwise provided in § 20-88.77:3 ” at the beginning of the first sentence and inserted “including the duration of the obligation of support” at the end, added present subsection D, redesignated former subsection D as subsection E, inserted “by a tribunal of the Commonwealth” in subsection E and made minor stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, deleted “except as otherwise provided in § 20-88.77:3 ” preceding “upon” in subsection A; deleted “state of” preceding “residence” in subdivision A 2; substituted “A tribunal” for “Except as otherwise provided in § 20-88.77:3 , a tribunal” in subsection C; added subsection F.

CIRCUIT COURT OPINIONS

Child support beyond age 18. —

Under subsection D of § 20-88.76 , a Massachusetts order providing that a father’s child support obligation continued until the youngest child turned 23 was subject to modification by a consent decree stating that, pursuant to subsection C of § 20-124.2 , support ended at 18 or, under certain circumstances, 19. Dempsey v. Arigo, 2006 Va. Cir. LEXIS 336 (Loudoun County Oct. 2, 2006).

§ 20-88.77. Recognition of order modified in another state.

If a child support order issued by a tribunal of the Commonwealth is modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act, a tribunal of the Commonwealth:

May enforce its order that was modified only as to arrears and interest accruing before the modification;
May provide appropriate relief for violations of its order that occurred before the effective date of the modification; and
Shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.

History. 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 rewrote the section.

§ 20-88.77:1. Jurisdiction to modify support order of another state when individual parties reside in this Commonwealth.

If all of the parties who are individuals reside in this Commonwealth and the child does not reside in the issuing state, a tribunal of this Commonwealth has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.
A tribunal of this Commonwealth exercising jurisdiction as provided in this section shall apply the provisions of Articles 1 (§ 20-88.32 et seq.) and 2 (§ 20-88.35 et seq.), this article and the procedural and substantive law of this Commonwealth to the enforcement or modification. Articles 3 through 5 (§ 20-88.37 et seq.) and Articles 7 (§ 20-88.64 et seq.) and 8 (§ 20-88.66 et seq.) do not apply.

History. 1997, cc. 797, 897.

CIRCUIT COURT OPINIONS

Child support beyond age 18. —

§ 20-88.77:2. Notice to issuing tribunal of modification.

Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.

History. 1997, cc. 797, 897.

§ 20-88.77:3. Jurisdiction to modify child support order of foreign country.

Except as provided in § 20-88.93 , if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of the Commonwealth may assume jurisdiction, for good cause shown as ordered, to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child support order otherwise required of the individual pursuant to § 20-88.76 has been given or whether the individual seeking modification is a resident of the Commonwealth or of the foreign country.
An order issued by a tribunal of the Commonwealth modifying a foreign child support order pursuant to this section is the controlling order.

History. 2005, c. 754; 2015, c. 727.

The 2015 amendments.

The 2015 amendment by c. 727, effective April 15, 2015, in subsection A, substituted “Except as provided in § 20-88.93 , if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order” for “If a foreign country or political subdivision that is a state will not or may not modify its order” and deleted “or political subdivision” from the end; and inserted “by a tribunal of the Commonwealth modifying a foreign child support order” in subsection B.

§ 20-88.77:4. Procedure to register child support order of foreign country for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the Convention may register that order in the Commonwealth under Article 8 (§ 20-88.66 et seq.) if the order has not been registered. A petition for modification may be filed at the same time as a request for registration or at another time. The petition must specify the grounds for modification.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this section effective April 15, 2015, by emergency.

Article 10. Determination of Parentage.

§ 20-88.78. Repealed by Acts 2015, c. 727, cl. 2, effective April 15, 2015.

Editor’s note.

Former § 20-88.78 , pertaining to proceeding to determine parentage, derived from 1994, c. 673; 1997, cc. 797, 897; 2005, c. 754.

Article 11. Interstate Rendition.

§ 20-88.79. Grounds for rendition.

For purposes of this article, “governor” includes an individual performing the functions of governor or the executive authority of a state covered by this chapter.
The Governor of this Commonwealth may:
1. Demand that the governor of another state surrender an individual found in the other state who is charged criminally in this Commonwealth with having failed to provide for the support of an obligee; or
2. On the demand by the governor of another state, surrender an individual found in this Commonwealth who is charged criminally in another state with having failed to provide for the support of an obligee.
A provision for extradition of individuals not inconsistent with this chapter applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and had not fled therefrom.

History. 1994, c. 673.

§ 20-88.80. Conditions of rendition.

Before making a demand that the governor of another state surrender an individual charged criminally in the Commonwealth with having failed to provide for the support of an obligee, the Governor of the Commonwealth may require a prosecutor of the Commonwealth to demonstrate that at least 60 days previously the obligee had initiated proceedings for support pursuant to this chapter or that the proceeding would be of no avail.
If, under this chapter or a law substantially similar to this chapter, the governor of another state makes a demand that the Governor of the Commonwealth surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the Governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the Governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the Governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the Governor may decline to honor the demand if the individual is complying with the support order.

History. 1994, c. 673; 2005, c. 754.

The 2005 amendments.

The 2005 amendment by c. 754 deleted “the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act” following “this chapter” in subsection B and made minor stylistic changes.

Article 12. Miscellaneous Provisions.

§§ 20-88.81, 20-88.82. Repealed by Acts 2015, c. 727, cl. 2, effective April 15, 2015.

Editor’s note.

Former § 20-88.81 , pertaining to uniformity of application and construction, derived from 1994, c. 673; 2005, c. 754.

Former § 20-88.82, pertaining to Uniform Interstate Family Support Act, derived from 1994, c. 673.

Article 13. Support Proceeding under Hague Convention.

§ 20-88.83. Definitions.

As used in this article:

“Application” means a request under the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.

“Central authority” means the entity designated by the United States or a foreign country described in § 20-88.32 to perform the functions specified in the Convention.

“Convention support order” means a support order of a tribunal of a foreign country described in § 20-88.32 .

“Direct request” means a petition or similar pleading filed by an individual in a tribunal of the Commonwealth in a proceeding involving an obligee, obligor, or child residing outside the United States.

“Foreign central authority” means the entity designated by a foreign country described in § 20-88.32 to perform the functions specified in the Convention.

“Foreign support agreement” means an agreement for support in a record that (i) is enforceable as a support order in the country of origin; (ii) has been formally drawn up or registered as an authentic instrument by a foreign tribunal or authenticated by or concluded, registered, or filed with a foreign tribunal; and (iii) may be reviewed and modified by a foreign tribunal. “Foreign support agreement” includes a maintenance arrangement or authentic instrument under the Convention.

“United States central authority” means the Secretary of the U.S. Department of Health and Human Services.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.84. Applicability.

This article applies only to a support proceeding under the Convention. In such a proceeding, if a provision of this article is inconsistent with Articles 1 through 9 (§ 20-88.32 et seq.), this article controls.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.85. Relationship of Department of Social Services to United States central authority.

The Department of Social Services of the Commonwealth is recognized as the agency designated by the United States central authority to perform specific functions under the Convention.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.86. Initiation by Department of Social Services of support proceeding under convention.

In a support proceeding under this chapter, the Department of Social Services of the Commonwealth shall:
1. Transmit and receive applications; and
2. Initiate or facilitate the institution of a proceeding regarding an application in a tribunal of the Commonwealth.
The following support proceedings are available to an obligee under the Convention:
1. Recognition or recognition and enforcement of a foreign support order;
2. Enforcement of a support order issued or recognized in the Commonwealth;
3. Establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;
4. Establishment of a support order if recognition of a foreign support order is refused under subdivision B 2, 4, or 9 of § 20-88.90 ;
5. Modification of a support order of a tribunal of the Commonwealth; and
6. Modification of a support order of a tribunal of another state or a foreign country.
The following support proceedings are available under the Convention to an obligor against which there is an existing support order:
1. Recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of the Commonwealth;
2. Modification of a support order of a tribunal of the Commonwealth; and
3. Modification of a support order of a tribunal of another state or a foreign country.
A tribunal of the Commonwealth may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the Convention.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.87. Direct request.

A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of the Commonwealth applies.
A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, §§ 20-88.88 through 20-88.95 apply.
In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:
1. A security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
2. An obligee or obligor that in the issuing country has benefited from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of the Commonwealth under the same circumstances.
A petitioner filing a direct request is not entitled to assistance from the Department of Social Services.
This chapter does not prevent the application of laws of the Commonwealth that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.88. Registration of Convention support order.

Except as otherwise provided in this chapter, a party who is an individual or a support enforcement agency seeking recognition of a Convention support order shall register the order in the Commonwealth as provided in Article 9 (§ 20-88.74 et seq.).
Notwithstanding § 20-88.54 and subsection A of § 20-88.67 , a request for registration of a Convention support order must be accompanied by:
1. A complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;
2. A record stating that the support order is enforceable in the issuing country;
3. If the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
4. A record showing the amount of arrears, if any, and the date the amount was calculated;
5. A record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
6. If necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
A request for registration of a Convention support order may seek recognition and partial enforcement of the order.
A tribunal of the Commonwealth may vacate the registration of a Convention support order without the filing of a contest under § 20-88.89 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.89. Contest of registered convention support order.

Except as otherwise provided in this chapter, §§ 20-88.71 , 20-88.72 , and 20-88.73 apply to a contest of a registered Convention support order.
A party contesting a registered Convention support order shall file a contest not later than 30 days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than 60 days after notice of the registration.
If the non-registering party fails to contest the registered Convention support order within the time period specified in subsection B, the order is enforceable.
A contest of a registered Convention support order may be based only on grounds set forth in § 20-88.90 . The contesting party bears the burden of proof.
In a contest of a registered Convention support order, a tribunal of the Commonwealth:
1. Is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
2. May not review the merits of the order.
A tribunal of the Commonwealth deciding a contest of a registered Convention support order shall promptly notify the parties of its decision.
A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.90. Recognition and enforcement of registered convention support order.

Except as otherwise provided in subsection B, a tribunal of the Commonwealth shall recognize and enforce a registered Convention support order.
The following grounds are the only grounds on which a tribunal of the Commonwealth may refuse recognition and enforcement of a registered Convention support order:
1. Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
2. The issuing tribunal lacked personal jurisdiction consistent with § 20-88.35 ;
3. The order is not enforceable in the issuing country;
4. The order was obtained by fraud in connection with a matter of procedure;
5. A record transmitted in accordance with § 20-88.88 lacks authenticity or integrity;
6. A proceeding between the same parties and having the same purpose is pending before a tribunal of the Commonwealth and that proceeding was the first to be filed;
7. The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this chapter in the Commonwealth;
8. Payment, to the extent alleged arrears have been paid in whole or in part;
9. In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:
  1. If the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
  2. If the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
10. The order was made in violation of § 20-88.93 .
If a tribunal of the Commonwealth does not recognize a Convention support order under subdivision B 2, 4, or 9:
1. The tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order; and
2. The Department of Social Services shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under § 20-88.86 .

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.91. Partial enforcement.

If a tribunal of the Commonwealth does not recognize and enforce a Convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a Convention support order.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.92. Foreign support agreement.

Except as otherwise provided in subsections C and D, a tribunal of the Commonwealth shall recognize and enforce a foreign support agreement registered in the Commonwealth.
An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by:
1. A complete text of the foreign support agreement; and
2. A record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
A tribunal of the Commonwealth may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
In a contest of a foreign support agreement, a tribunal of the Commonwealth may refuse recognition and enforcement of the agreement if it finds that:
1. Recognition and enforcement of the agreement is manifestly incompatible with public policy;
2. The agreement was obtained by fraud or falsification;
3. The agreement is incompatible with a support order involving the same parties and having the same purpose in the Commonwealth, another state, or a foreign country if the support order is entitled to recognition and enforcement under this chapter in the Commonwealth; or
4. The record submitted under subsection B lacks authenticity or integrity.
A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.93. Modification of Convention child support order.

A tribunal of the Commonwealth may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
1. The obligee submits to the jurisdiction of a tribunal of the Commonwealth, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
2. The foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
If a tribunal of the Commonwealth does not modify a Convention child support order because the order is not recognized in the Commonwealth, subsection C of § 20-88.90 applies.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.94. Personal information; limit on use.

Personal information gathered or transmitted under this article may be used only for the purposes for which it was gathered or transmitted.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

§ 20-88.95. Record in original language; English translation.

A record filed with a tribunal of the Commonwealth under this article must be in the original language and, if not in English, must be accompanied by an English translation.

History. 2015, c. 727.

Editor’s note.

Acts 2015, c. 727, cl. 3 made this chapter effective April 15, 2015, by emergency.

Chapter 6. Divorce, Affirmation and Annulment.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.05 Suits for Divorce or for Affirmation or Annulment of Marriage. Friend

Virginia Forms (Matthew Bender). No. 5-101. Simple Divorce Checklist, et seq.

§ 20-89. Repealed by Acts 1975, c. 644.

§ 20-89.1. Suit to annul marriage.

When a marriage is alleged to be void or voidable for any of the causes mentioned in § 20-13 , 20-38.1 , or 20-45.1 or by virtue of fraud or duress, either party may institute a suit for annulling the same; and upon proof of the nullity of the marriage, it shall be decreed void by a decree of annulment.
In the case of natural or incurable impotency of body existing at the time of entering into the marriage contract, or when, prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony, or when, at the time of the marriage, either spouse, without the knowledge of the other spouse, was with child by a person other than the other spouse or had conceived a child born to a person other than the other spouse within 10 months after the date of the solemnization of the marriage, or where, prior to the marriage, either party had been, without the knowledge of the other, a prostitute, a decree of annulment may be entered upon proof, on complaint of the party aggrieved.
No annulment for a marriage alleged to be void or voidable under subsection B of § 20-45.1 or subsection B of this section or by virtue of fraud or duress shall be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment, and in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment.
A party who, at the time of such marriage as is mentioned in § 20-48 , was capable of consenting with a party not so capable shall not be permitted to institute a suit for the purpose of annulling such marriage.

History. 1975, c. 644; 1976, c. 356; 2016, cc. 457, 543; 2020, c. 900.

The 2016 amendments.

The 2016 amendments by cc. 457 and 543 are identical, and substituted subsection A-D designations for (a)-(d) designations; in subsection A, inserted “or” preceding “20-45.1”; in subsection B, substituted “10” for “ten”; in subsection C, substituted “subsection B” for “subsection (b)” in two places; and, in subsection D, deleted “or § 20-49 ” following “§ 20-48 ”; and made minor stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “either spouse, without the knowledge of the other spouse, was with child by a person other than the other spouse or had conceived a child born to a person other than the other spouse” for “the wife, without the knowledge of the husband, was with child by some person other than the husband, or where the husband, without knowledge of the wife, had fathered a child born to a woman other than the wife” in subsection B.

Law Review.

For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For an article, “Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?” see 84 Va. L. Rev. 509 (1998).

Research References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Marriage, §§ 13-15.

CASE NOTES

Voidable marriage is usually treated as a valid marriage until it is decreed void. McConkey v. McConkey, 216 Va. 106 , 215 S.E.2d 640, 1975 Va. LEXIS 255 (1975).

Parties to a voidable marriage are husband and wife unless and until the marriage is annulled. McConkey v. McConkey, 216 Va. 106 , 215 S.E.2d 640, 1975 Va. LEXIS 255 (1975).

A judicial decision is important in reference to a void marriage. —

Although there may be no doubt in the minds of the parties, it is often desirable, and sometimes of highest importance, both to individuals and to the community that there should be a judicial decision in reference to a void marriage, for then the status of the parties and their children is set at rest, and the parties are justified in the eyes of the public in entering into a second marriage. Former § 20-89 and §§ 20-96 through 20-97 made provisions for this situation. The fact that a marriage is void under § 20-43 and former § 20-57 without any legal process does not take away the power of the courts to declare it invalid. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

Though a marriage between persons, one of whom had a former wife or husband then living, is absolutely void without any decree of divorce or other legal process, for obvious reasons such judicial sentence is prudent and advisable, and the statute gives either party the right to obtain such a decree. Brown v. Brown, 24 S.E. 238 (Va. Ct. App. 1896).

The causes for annulment mentioned are not exclusive. Pretlow v. Pretlow, 177 Va. 524 , 14 S.E.2d 381, 1941 Va. LEXIS 239 (1941).

Where a divorced wife enters into a subsequent, voidable marriage, she thereby forfeits her right to alimony from her former husband. McConkey v. McConkey, 216 Va. 106 , 215 S.E.2d 640, 1975 Va. LEXIS 255 (1975).

Annulment of voidable second marriage does not entitle wife to reinstatement of alimony payments from first husband, where there is a statute providing that alimony shall terminate upon the recipient’s remarriage. McConkey v. McConkey, 216 Va. 106 , 215 S.E.2d 640, 1975 Va. LEXIS 255 (1975).

Misrepresentation as to prior marital status is not ground for annulment. Sanderson v. Sanderson, 212 Va. 537 , 186 S.E.2d 84, 1972 Va. LEXIS 198 (1972).

Insane person cannot institute suit himself under this section. —

Under this section a person who has been adjudged insane and is still non compos mentis cannot himself institute a suit. He cannot sue except by and through his legally constituted representative. Counts v. Counts, 161 Va. 768 , 172 S.E. 248 , 1934 Va. LEXIS 299 (1934).

The right to bring a suit for annulment of marriage is expressly given by this section, but this is probably merely declaratory of a preexisting ground of equitable jurisdiction. Heflinger v. Heflinger, 136 Va. 289 , 118 S.E. 316 , 1923 Va. LEXIS 87 (1923) (see Pretlow v. Pretlow, 177 Va. 524 , 14 S.E.2d 381 (1941)).

Section not applicable to marriage of minor over age of consent. —

Marriages of minors over the age of consent for marriage are not “supposed to be void” merely because of the lack of parental consent, so as to make applicable this section authorizing a suit for annulment of a marriage when the marriage is supposed to be void. Needam v. Needam, 183 Va. 681 , 33 S.E.2d 288, 1945 Va. LEXIS 214 (1945).

Cohabitation after knowledge of fraud barred annulment. —

Even if the evidence had established that a wife was induced to marry her husband by fraud, the evidence proved the wife chose to remain with the husband for almost five months after husband disclosed his improper purpose and, by remaining with the husband after learning of his improper purpose, the wife was barred from relying on fraud to annul the marriage. Simindokht Jouybari Okhravi v. Masoud Ganji, 2001 Va. App. LEXIS 233 (Va. Ct. App. May 1, 2001).

Annulment based on fraud upheld. —

Trial court did not err in granting a husband an annulment on fraud grounds, although the parties’ testimony was in conflict about whether they had consummated their marriage, because the trial court found the husband and his corroborating witnesses credible where there was no evidence of any physical affection between the parties. Mustafa v. Mustafa, 2010 Va. App. LEXIS 139 (Va. Ct. App. Apr. 13, 2010).

No jurisdiction over appeal from dismissal of cross-bill for annulment. —

In a divorce case, an interlocutory decree dismissing appellant’s cross-bill for annulment was not appealable under subdivision 4(ii) of § 17.1-405 . As the decree did not determine the status or validity of the parties’ marriage, award spousal support, or make an equitable distribution of marital assets, it did not “respond to the chief object” of the domestic relations dispute and did not determine “the principles that were necessary to adjudicate the cause.” Lewis v. Lewis, 271 Va. 520 , 628 S.E.2d 314, 2006 Va. LEXIS 44 (2006).

Denial of annulment petition error. —

Sufficient evidence of bigamy. —

CIRCUIT COURT OPINIONS

Annulment based on fraud denied. —

Denial of a wife’s petition for marriage annulment was appropriate because the trial court found that the wife failed to prove, by clear and convincing evidence, that the husband, who was transitioning to becoming a female, defrauded the wife to induce their marriage by not telling the wife that the husband had no intention of ever consummating the marriage and no intent of remaining a male. Sun v. Riley, 103 Va. Cir. 440, 2019 Va. Cir. LEXIS 1180 (Fairfax County Dec. 30, 2019).

§ 20-90. Suit to affirm marriage.

When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affirmance of the marriage, and upon due proof of the validity thereof, it shall be decreed to be valid, and such decree shall be conclusive upon all persons concerned.
Notwithstanding § 20-13 , a marriage of a couple where one of the parties was under the age of 18 at the time of solemnization may be decreed valid upon petition by the party who was under the age of 18 at the time of the solemnization that would otherwise be deemed voidable under subsection C of § 20-45.1 solely because of age, once such party has attained the age of 18. If both parties were under the age of 18 at the time of solemnization, such petition shall not be granted unless both parties have reached the age of 18 and join in the petition together.

History. Code 1919, § 5102; 2016, cc. 457, 543.

The 2016 amendments.

The 2016 amendments by cc. 457 and 543 are identical, and added subsection B.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Marriage, § 20.

CASE NOTES

Scope of section. —

This section and §§ 20-96 through 20-98 (now repealed) include suits to determine questions of doubt or denial affecting the matrimonial status as well as questions relating to the contracting rights of the parties, the form, or the solemnity of their contracts. McFarland v. McFarland, 179 Va. 418 , 19 S.E.2d 77, 1942 Va. LEXIS 235 (1942).

Validity of marriage determined under Virginia law. —

The law of Virginia must be applied to determine the question of validity of the marriage within this state. No state is bound by comity to give effect in its courts to the marriage laws of another state, repugnant to its own laws and policy. Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908, 3 Va. Law Rep. 1151, 1986 Va. App. LEXIS 376 (1986).

CIRCUIT COURT OPINIONS

Validity of marriage determined under Virginia law. —

OPINIONS OF THE ATTORNEY GENERAL

License mandatory. —

§ 20-91. Grounds for divorce from bond of matrimony; contents of decree.

A divorce from the bond of matrimony may be decreed:
A decree of divorce shall include each party’s social security number or other control number issued by the Department of Motor Vehicles pursuant to § 46.2-342 .

For adultery; or for sodomy or buggery committed outside the marriage;
[Repealed.]
Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his conjugal rights);
, (5) [Repealed.]
(7), (8) [Repealed.]

(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or

(9) (a) On the application of either party if and when they have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when they have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

(b) This subdivision (9) shall apply whether the separation commenced prior to its enactment or shall commence thereafter. Where otherwise valid, any decree of divorce hereinbefore entered by any court having equity jurisdiction pursuant to this subdivision (9), not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto.

(c) A decree of divorce granted pursuant to this subdivision (9) shall in no way lessen any obligation any party may otherwise have to support the spouse unless such party shall prove that there exists in the favor of such party some other ground of divorce under this section or § 20-95 .

History. Code 1919, § 5103; 1926, p. 868; 1934, p. 20; 1952, c. 100; 1960, c. 108; 1962, c. 288; 1964, cc. 363, 648; 1970, c. 311; 1975, c. 644; 1982, c. 308; 1986, c. 397; 1988, c. 404; 1997, cc. 794, 898; 2020, cc. 270, 900.

Cross references.

As to authority of General Assembly to confer power on courts to grant divorce, see Va. Const., Art. IV, § 14.

The 2020 amendments.

The 2020 amendments by cc. 270 and 900 are identical, and in subdivision A (3), deleted “or her” following “his”; in sub-subdivision A (9) (a), substituted “they” for “the husband and wife,” once each in the first and second sentences; and, in subsection B, deleted a comma after “social security number.”

Law Review.

For discussion of divorce proceedings, see 46 Va. L. Rev. 1502 (1960).

For discussion of constructive desertion as a ground for divorce in Virginia, see 47 Va. L. Rev. 362 (1961).

For comment on divorce on ground of separation, see 18 Wash. & Lee L. Rev. 157 (1961).

For comment on desertion during pendency of divorce suit, see 18 Wash. & Lee L. Rev. 245 (1961).

For note on insanity as a defense on ground of divorce, see 18 Wash. & Lee L. Rev. 321 (1961).

For note on cohabitation during pendency of a divorce action, see 19 Wash. & Lee L. Rev. 243 (1962).

For comment, “Misconduct During an Interlocutory Divorce Period,” see 20 Wash. & Lee L. Rev. 335 (1963).

For comment, “Recrimination and Comparative Rectitude,” see 20 Wash. & Lee L. Rev. 354 (1963).

For article, “Divorce Without Fault Without Perjury,” see 52 Va. L. Rev. 32 (1966).

For article on insanity and divorce, see 56 Va. L. Rev. 12 (1970).

For survey of Virginia law on domestic relations for the year 1969-1970, see 56 Va. L. Rev. 1411 (1970).

For article, “Federal Taxation in Separation and Divorce,” see 29 Wash. & Lee L. Rev. 1 (1972).

For article, “Sexual Relations After Separation or Divorce: The New Morality and the Old and New Divorce Laws,” see 63 Va. L. Rev. 249 (1977).

For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For article on recent developments in Virginia domestic relations law, see 68 Va. L. Rev. 507 (1982).

For article, “Is a Professional Degree Marital Property Under Virginia’s Marriage Dissolution Statutes?,” see 7 G.M.U. L. Rev. 47 (1984).

For comment on child abuse and divorce under Virginia law, see 9 G.M.U. L. Rev. 55 (1986).

As to interpretation of § 20-91(9)(c) when dealing with recrimination, see 22 U. Rich. L. Rev. 565 (1988).

For article, “The Subject Matter Jurisdiction of Virginia Courts in Divorce and Equitable Distribution Proceedings,” see 11 G.M.U. L. Rev. 73 (1989).

For article, “Divorce Denied: Have Mental Cruelty, Constructive Desertion and Reasonable Apprehension of Bodily Harm Been Abolished in Virginia?,” see 25 U. Rich. L. Rev. 273 (1991).

For an article relating to recent changes of formidable importance in major areas of domestic relations, both nationally and in Virginia, see 32 U. Rich. L. Rev. 1165 (1998).

For an article, “A Dead Language: Divorce Law and Practice Before No-Fault,” see 86 Va. L. Rev. 1497 (2000).

For 2007 annual survey article, “Family and Juvenile Law,” see 42 U. Rich. L. Rev. 417 (2007).

For note, “Estop in the Name of Love: A Case for Constructive Marriage in Virginia,” see 49 Wm. & Mary L. Rev. 973 (2007).

For note, “Wrongs Committed During a Marriage: The Child that No Area of the Law Wants to Adopt,” see 66 Wash. & Lee L. Rev. 465 (2009).

For note, “Beyond the Bounds of Decency: Why Fault Continues to Matter to (Some) Wronged Spouses,” see 66 Wash. & Lee L. Rev. 503 (2009).

For note, “A Comment on Wrongs Committed during a Marriage: The Child that No Area of the Law Wants to Adopt,” see 66 Wash. & Lee L. Rev. 515 (2009).

Research References.

Family Law and Practice (Matthew Bender). Rutkin.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Dismissal, Discontinuance and Nonsuit, § 3.

CASE NOTES

Analysis

I. Grounds for Divorce in General.
II. Adultery.
III. Desertion.
IV. Separation.

I.Grounds for Divorce in General.

Legislative recognition of parties’ desire to terminate their marriage. —

This section embodies the legislative recognition of the regrettable fact of human experience that for various reasons parties determine to terminate their marriage. Dexter v. Dexter, 7 Va. App. 36, 371 S.E.2d 816, 5 Va. Law Rep. 175, 1988 Va. App. LEXIS 98 (1988).

The 1975 amendment to this section places husband and wife on an equal footing in that either spouse now may be awarded support and maintenance from the other. Brooker v. Brooker, 218 Va. 12 , 235 S.E.2d 309, 1977 Va. LEXIS 164 (1977); Bristow v. Bristow, 221 Va. 1 , 267 S.E.2d 89, 1980 Va. LEXIS 206 (1980).

In rem and in personam proceedings. —

A divorce suit in which the pleadings seek only to terminate a marriage is an in rem proceeding, but a proceeding seeking the entry of a decree for spousal support and maintenance is in personam. Boyd v. Boyd, 2 Va. App. 16, 340 S.E.2d 578, 1986 Va. App. LEXIS 236 (1986).

No legislative preference between grounds. —

There is nothing in any portion of the divorce law which suggests a legislative intent to give precedence to one proven ground of divorce over another. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975).

Trial court can choose between grounds alleged. —

Trial court did not err in granting the wife a divorce on the ground of living separate and apart for more than one year and refusing to grant the husband a divorce on the grounds of cruelty and desertion, because trial court was free to choose between the two grounds in granting the divorce and thus, did not abuse its discretion. Fadness v. Fadness, 52 Va. App. 833, 667 S.E.2d 857, 2008 Va. App. LEXIS 496 (2008).

Trial court did not err in refusing to award a husband a divorce on the ground of desertion, because even if grounds existed for the trial court to award the husband a divorce on desertion, the trial court was free to select any sufficient ground in awarding the divorce and it had found that the husband had committed adultery. Davis v. Davis, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

Circuit court properly entered a final decree of divorce based on a one-year separation because, even if the record supported the husband’s argument regarding the fault grounds for divorce, the circuit court was free to choose between the grounds presented by the parties, the ground the court used was supported by the evidence, the husband failed to preserved his arguments regarding the distribution of the wife’s retirement account and the former marital residence, and the circuit court considered all of the circumstances in declining to award attorney’s fees to either party. Minnick v. Minnick, 2020 Va. App. LEXIS 66 (Va. Ct. App. Mar. 10, 2020).

Dual grounds. —

Courts have specifically recognized the propriety of an award of divorce based upon dual grounds. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975).

Where dual grounds for divorce exist, the trial judge is not required to grant a divorce under the one year separation statute. He can use his sound discretion to select the appropriate grounds upon which he will grant the divorce. Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

Where dual grounds for divorce exist, the trial judge may use his sound discretion to select the appropriate ground upon which he will grant the divorce. Rife v. Rife, No. 1197-85 (Ct. of Appeals Dec. 4, 1986).

Even if evidence established alternative grounds for divorce claimed by husband, trial court was entitled to grant divorce on the proven ground that parties lived separate and apart in excess of one year. Ingram v. Ingram, No. 1966-98-2 (Ct. of Appeals Sept. 14, 1999).

Circuit court found father’s allegations of cruelty were sufficiently established and corroborated, and mother never challenged the sufficiency of this evidence; because the circuit court was not required to grant a divorce on the parties’ one-year separation where dual grounds existed, there was no error in the court’s decision to grant father a divorce on the grounds of cruelty. Armstrong v. Armstrong, 2019 Va. App. LEXIS 258 (Va. Ct. App. Nov. 12, 2019).

Remand for correction of clerical error. —

Matter was remanded to the trial court for entry of a nunc pro tunc order because the final divorce decree appeared to contain a clerical error; the parties requested a divorce (a vinculo matrimonii) not a legal separation (a mensa et thoro), and the final order granted a divorce pursuant to subdivision A 1 on the ground of adultery. Garrett v. Garrett, 2017 Va. App. LEXIS 104 (Va. Ct. App. Apr. 18, 2017).

Cruelty must be established by corroborated evidence. —

As with any statutory divorce ground, a cruelty allegation must be established by corroborated evidence, independent of party admissions. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d 535, 3 Va. Law Rep. 1, 1986 Va. App. LEXIS 293 (1986).

Evidence held to support the judgment of the trial court that wife did not prove cruelty on the part of the husband. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d 535, 3 Va. Law Rep. 1, 1986 Va. App. LEXIS 293 (1986).

Sufficiency of corroboration. —

Trial court properly entered a divorce decree based on a wife’s cruelty to her husband, as there was no evidence of collusion, and the husband’s testimony regarding cruelty was sufficiently corroborated under subdivision 1 of § 20-99 by photos of his injuries, testimony of his mother and a police officer, and a letter the wife wrote. Ibrayeva v. Kublan, 2012 Va. App. LEXIS 400 (Va. Ct. App. Dec. 11, 2012).

Sufficient evidence of cruelty. —

In an action in which the husband appealed a final decree of the Circuit Court of Henrico County, Virginia, granting the wife a divorce on the ground of cruelty and adjudicating the issues of equitable distribution, spousal support, and attorney’s fees, the trial judge did not err in granting wife a divorce on the ground of cruelty; the husband’s picking the wife up and throwing her across the bed and onto the floor causing her to sustain serious injuries was conduct so severe and atrocious as to endanger life and indicated an intention to do serious bodily harm. Kennedy v. Kennedy, 2006 Va. App. LEXIS 471 (Va. Ct. App. Oct. 24, 2006).

Trial court properly entered a divorce decree based on a wife’s cruelty to her husband, because on more than one occasion, she was arrested for and found guilty of assault and battery against him, and the trial court found the testimony of the husband and his mother as to the wife’s cruelty to be more credible than that of the wife. Ibrayeva v. Kublan, 2012 Va. App. LEXIS 400 (Va. Ct. App. Dec. 11, 2012).

Trial court did not err in granting a divorce based on cruelty because the evidence was sufficient to prove cruelty as the petitioner testified that the petitioner was sleeping on the couch in the parties’ house when the petitioner’s spouse shot the petitioner in the arm. Moreover, the petitioner relied on a circuit court’s issuance of a protective order against the spouse, as well as the spouse’s criminal conviction and sentencing orders to corroborate the grounds for divorce. King v. King, 2015 Va. App. LEXIS 342 (Va. Ct. App. Nov. 24, 2015).

Mother was incorrect that the circuit court based its divorce decision on a single act of physical abuse; her argument ignored the circuit court’s determination that there were multiple acts of cruelty warranting a divorce. Armstrong v. Armstrong, 2019 Va. App. LEXIS 258 (Va. Ct. App. Nov. 12, 2019).

Insufficient evidence of cruelty. —

While the record established that the parties’ marriage did not remain harmonious, the record certainly did not prove that one spouse’s alleged misconduct met the standard for the cruelty fault ground as there were actions on the part of both parties consisting of angry words, annoyances, and failure to maintain the marital relationship, but the trial court did not find that sufficient to show cruelty. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Exceptions to general rule that court may require oral testimony in open court. —

Subsection A of § 20-106 establishes as a general proposition that a trial court may require that testimony be given orally, in open court, and then provides exceptions to that rule, by allowing a party to rely on depositions or affidavits without obtaining leave of court where: (1) under clause (i) of subsection A of § 20-106 , the divorce is based on the grounds set forth in subdivision A 9 of § 20-91 and the parties have resolved all issues by a written settlement agreement; and (2) under clause (ii) of subsection A of § 20-106, there are no issues other than the grounds of the divorce itself to be adjudicated. Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71, 2013 Va. App. LEXIS 138 (2013).

Inability to live happily together. —

Courts should not sever marriage bonds merely because husband and wife, through lack of patience or uncongenial natures, cannot live happily together. Rowand v. Rowand, 215 Va. 344 , 210 S.E.2d 149, 1974 Va. LEXIS 289 (1974).

A fault divorce cannot be granted merely because a husband and wife are unable to live together in peace and harmony. Coe v. Coe, 225 Va. 616 , 303 S.E.2d 923, 1983 Va. LEXIS 260 (1983).

Equal misconduct by both parties required divorce by one year’s separation only. —

Where both parties had committed adultery, and neither could prove desertion or any other fault ground in their favor, neither could obtain a divorce from the other except upon the ground of one year’s separation and with neither party entitled to a fault divorce, the obligation to support a spouse continued. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

Demand to “get out.” —

The law does not recognize as a ground for divorce a bare demand to “get out.” Rowand v. Rowand, 215 Va. 344 , 210 S.E.2d 149, 1974 Va. LEXIS 289 (1974).

Habitual drunkenness or use of narcotic drugs. —

In a number of jurisdictions habitual drunkenness or use of narcotic drugs is an independent ground for divorce. Virginia does not have such a provision in its statutes. In the absence of provisions to that effect, it is not generally regarded, of itself, as a ground for divorce. However, such habits, together with other misconduct, may constitute a case of cruelty. Hoffecker v. Hoffecker, 200 Va. 119 , 104 S.E.2d 771, 1958 Va. LEXIS 167 (1958).

Felony conviction. —

A spouse is entitled to a divorce when the other party to the marriage is convicted of a felony and is incarcerated for more than one year, and one does not waive this right simply because a divorce proceeding is not instituted immediately upon the conviction and sentence. Maulick v. Maulick, 1991 Va. App. LEXIS 330 (Va. Ct. App. June 4, 1991).

Insanity as defense. —

The insanity of the defendant is no bar to the prosecution of a suit for divorce for a cause which accrued before such insanity began. Wright v. Wright, 125 Va. 526 , 99 S.E. 515 , 1919 Va. LEXIS 42 (1919).

Dual or multiple grounds. —

When the pleadings allege and the evidence proves dual or multiple grounds for divorce, the trial court does not err by granting a divorce on either ground that has been pleaded and proven. Thus, although the pleadings and proof may have supported granting the wife a divorce on the ground of physical cruelty pursuant to subdivision A (6) of this section, the trial court did not err by granting a divorce on the ground of having lived separate and apart for more than one year pursuant to subsection A of this section. Megill v. Megill, 1997 Va. App. LEXIS 273 (Va. Ct. App. Apr. 29, 1997).

Decree insufficient to dissolve marriage. —

Final divorce decree was remanded to the trial court so that it could correct a clerical error and add the necessary language to dissolve the parties’ marriage under subsection B of § 8.01-428 as the decree failed to state that it adjudged, ordered and decreed that a husband was divorced from a wife; the decree’s statement that the parties were entitled to a divorce a vinculo matrimonii pursuant to subdivision 9 of § 20-91 upon the wife’s motion pursuant to § 20-121.02 was insufficient to dissolve the bonds of matrimony between the parties. Kramer v. Kramer, 2013 Va. App. LEXIS 48 (Va. Ct. App. Feb. 12, 2013).

II.Adultery.

Adultery is an independent basis for divorce. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Time, place and circumstances should be averred with reasonable certainty in suit for adultery. —

Allegations of the bill in regard to the charge of adultery held to sufficiently comply with the rule that the time, place and circumstances should be averred with reasonable certainty. White v. White, 121 Va. 244 , 92 S.E. 811 , 1917 Va. LEXIS 29 (1917).

Post-separation adultery. —

Under some circumstances, post-separation adultery may give the deserting party ground to obtain a decree of divorce a vinculo matrimonii. In such cases, a determination of which litigant caused the separation is not controlling of the outcome of the case. Surbey v. Surbey, 5 Va. App. 119, 360 S.E.2d 873, 4 Va. Law Rep. 702, 1987 Va. App. LEXIS 224 (1987).

Trial court did not abuse its discretion when it allowed a husband to file a supplemental cross-bill seeking divorce on the ground that his wife committed adultery after the parties separated or by ordering a divorce based on the wife’s post-separation conduct. Block v. Block, 2004 Va. App. LEXIS 15 (Va. Ct. App. Jan. 13, 2004).

Circuit court did not err in its conclusion that the evidence failed to establish that a spouse committed post-separation adultery, based on its specifically stated assessment of the credibility of the witnesses when describing the nature of the spouse’s relationship with another person. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Adultery not only may, but ordinarily must, be established by circumstantial evidence. Musick v. Musick, 88 Va. 12 , 13 S.E. 302 , 1891 Va. LEXIS 2 (1891).

Degree of proof required in suit for adultery. —

The testimony must convince the judicial mind affirmatively that the actual adultery has been committed, since nothing short of the carnal act can lay a foundation for a divorce. The proof should be strict, satisfactory and conclusive. Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890); Musick v. Musick, 88 Va. 12 , 13 S.E. 302 , 1891 Va. LEXIS 2 (1891); Engleman v. Engleman, 97 Va. 487 , 34 S.E. 50 , 1899 Va. LEXIS 64 (1899); Lewis v. Lewis, 121 Va. 99 , 92 S.E. 807 , 1917 Va. LEXIS 13 (1917).

In a suit for divorce on the ground of adultery, proof thereof should be “such as to lead the guarded discretion of a reasonable and just man to the conclusion of the defendant’s guilt.” Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890); Engleman v. Engleman, 97 Va. 487 , 34 S.E. 50 , 1899 Va. LEXIS 64 (1899).

While a court’s judgment cannot be based upon speculation, conjecture, surmise, or suspicion, adultery does not have to be proven beyond all doubt. The evidence must be clear and convincing, based upon proven facts and reasonable inferences drawn from these facts. Coe v. Coe, 225 Va. 616 , 303 S.E.2d 923, 1983 Va. LEXIS 260 (1983).

Adultery after desertion. —

It was not error to admit evidence of the husband’s adulterous conduct occurring after the desertion and to base the award of divorce upon the further ground of adultery. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975).

Children testifying to adultery. —

It is always regrettable and unfortunate that children of any age, and especially those of such tender years, should be involved as witnesses to prove adultery in divorce cases. For many and obvious reasons they ought not to be introduced unless necessary to prevent a denial of justice, and in all such cases their testimony must be cautiously regarded because liable to be exaggerated or inaccurate. White v. White, 121 Va. 244 , 92 S.E. 811 , 1917 Va. LEXIS 29 (1917).

The testimony of a detective, employed to gather evidence, must be viewed with caution. However, if the finder of fact is satisfied with the credibility of the detective and of his testimony, that testimony can constitute proof of adultery. McCants v. McCants, No. 0673-89-4 (Ct. of Appeals Aug. 28, 1990).

Testimony of hired detective. —

When proof of adultery is undertaken in a divorce case, the testimony of a hired detective should be carefully scrutinized and acted on with great caution. Seemann v. Seemann, 233 Va. 290 , 355 S.E.2d 884, 3 Va. Law Rep. 2389, 1987 Va. LEXIS 196 (1987).

As to weight and sufficiency of evidence in proving adultery, see generally. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Lewis v. Lewis, 121 Va. 99 , 92 S.E. 807 , 1917 Va. LEXIS 13 (1917); White v. White, 121 Va. 244 , 92 S.E. 811 , 1917 Va. LEXIS 29 (1917); Johnson v. Johnson, 126 Va. 15 , 100 S.E. 822 , 1919 Va. LEXIS 69 (1919).

The fact that a married man is seen in a house of ill-fame, is not of itself conclusive proof of the crime of adultery on his part, though it is sufficient to establish the crime prima facie. Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890) (see also Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878); Musick v. Musick, 88 Va. 12 , 13 S.E. 302 (1891)).

To establish a charge of adultery, the evidence must be clear, positive and convincing. Painter v. Painter, 215 Va. 418 , 211 S.E.2d 37, 1975 Va. LEXIS 167 (1975).

Even strongly suspicious circumstances are not enough to establish adultery. Painter v. Painter, 215 Va. 418 , 211 S.E.2d 37, 1975 Va. LEXIS 167 (1975); Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

In a divorce action where the evidence tended to show that a male visitor was observed on at least two occasions leaving the separated wife’s home as late as 2:45 a.m., and that the wife maintained a dating relationship with another man for approximately one and one-half years after separation from her husband, although the evidence created suspicion as to the wife’s guilt of adultery, the evidence did not amount to clear, positive, and convincing proof. Dooley v. Dooley, 222 Va. 240 , 278 S.E.2d 865, 1981 Va. LEXIS 296 (1981).

Burden of proof. —

One who alleges adultery has the burden of proving it by clear and convincing evidence. Seemann v. Seemann, 233 Va. 290 , 355 S.E.2d 884, 3 Va. Law Rep. 2389, 1987 Va. LEXIS 196 (1987).

Recrimination in suit for adultery. —

Where the wife alleged adultery in her pleadings and proved it during the proceedings, but did not expressly raise the defense of recrimination after the court’s finding of her adultery, nevertheless, since recrimination is based upon the equitable principle that no one may take advantage of his own wrong, it was properly within the court’s discretion to raise and rely upon the doctrine of recrimination, since to hold otherwise would lead to an unjust conclusion. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

Proof of adultery under general plea of recrimination. —

Trial court did not err in allowing the wife to prove the husband’s adultery under a general plea of recrimination. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Finding that wife slept in room with another man but did not have intercourse with him upheld. —

Finding of the trial court that although wife with strong religious beliefs had traveled with a man and had slept in the same bedroom with him, that they had not had sexual intercourse together and that she was therefore not guilty of adultery was not plainly wrong and would not be disturbed on appeal. Seemann v. Seemann, 233 Va. 290 , 355 S.E.2d 884, 3 Va. Law Rep. 2389, 1987 Va. LEXIS 196 (1987).

Wife’s alleged adultery immaterial where husband’s fault and misconduct ended marriage. —

In a no-fault divorce proceeding the trial court did not err in denying the husband’s motion to require the wife and her neighbor to answer the questions posed to them regarding adultery, where the record amply supported the court’s opinion that it was the husband’s own fault and misconduct that caused the termination of the marriage. Assuming, arguendo, that her answers would have been incriminatory, the wife, nonetheless, could have asserted the doctrine of recrimination and prevented her husband from obtaining a fault divorce. The questions posed were simply immaterial. Wallace v. Wallace, 1 Va. App. 183, 336 S.E.2d 27, 1985 Va. App. LEXIS 82 (1985).

Proof based on wife’s observations and husband’s admissions insufficient. —

Where the wife’s proof of her charge of adultery against her husband was based almost entirely on her testimony concerning her observations and her husband’s alleged admissions to her, such evidence, standing alone, was insufficient to establish her claim. McCants v. McCants, No. 0673-89-4 (Ct. of Appeals Aug. 28, 1990).

Evidence of adultery held sufficient. —

The trial court did not err in finding that husband had committed adultery based on clear, positive and convincing evidence that both husband and his girlfriend admitted that they spent approximately three or four nights together each week, although they denied any sexual relations, they both admitted to watching X-rated movies in husband’s bedroom, they had taken trips to the Bahamas, Ft. Lauderdale, and Colonial Beach together, and a private investigator testified that he had observed husband and girlfriend remaining overnight together at her apartment. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

Evidence was insufficient to establish that a wife had committed adultery where the wife testified that she and the children had moved into the home of a coworker because she had nowhere to live and that she and the children had their own bedroom in the house, and where the unrebutted testimony of both the wife and the coworker was that they had not had sexual intercourse. Hughes v. Hughes, 33 Va. App. 141, 531 S.E.2d 645, 2000 Va. App. LEXIS 571 (2000).

Even though a wife’s denials of an adulterous relationship were unrefuted by direct evidence, they were refuted by circumstantial evidence where the wife repeatedly changed her story regarding photographs taken of her in various states of undress in her paramour’s bedroom, her statements were internally self-contradictory, her testimony was even contradicted in part by the paramour’s testimony, and the wife’s testimony did not provide a believable explanation for the photographs. Having found that she was untruthful in that testimony, the trial court was free to discard her statements denying an affair with her paramour and, upon finding a false denial, the court could infer she committed the act even in the absence of direct evidence that such had occurred. Catron v. Catron, 2001 Va. App. LEXIS 59 (Va. Ct. App. Feb. 6, 2001).

Evidence that a husband acted covertly and provided no plausible explanation for his clandestine meetings with a woman, was seen embracing and kissing her in public, admitted to his wife he had an “infatuation” with the woman, and the wife overheard him tell someone over the telephone how much he missed and loved the unidentified person on the other end, was sufficient to prove he committed adultery. Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224, 2003 Va. App. LEXIS 312 (2003).

There was no error in the trial court’s granting a husband a divorce on the ground of the wife’s adultery; by moving back to Virginia almost immediately after the husband returned to active military duty and by renewing her adulterous relationship, the wife nullified the husband’s earlier condonation of her adultery. Her faithless behavior, combined with the parties’ economic posture, supported the trial court’s decision. Polemeni v. Polemeni, 2007 Va. App. LEXIS 37 (Va. Ct. App. Feb. 6, 2007).

Trial court did not err in awarding a wife a divorce on grounds of adultery because, although the activity of a particular date did not alone prove adultery, sexually infused phone messages, coupled with the trial court’s rejection of a credible explanation for such messages, compelled a finding of adultery. Davis v. Davis, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

Evidence of adultery held insufficient. —

Where evidence established that: (1) husband and alleged paramour, a nurse, met at a hospital when his father became terminally ill; (2) he and the woman became friends; (3) he subleased part of her house; (4) he hired the woman for a job position at his school; (5) he called the woman several times to talk about his father’s death; and (6) wife’s investigator saw one brief kiss between husband and the woman, the trial judge correctly determined that the commissioner’s finding of adultery was not established by clear and convincing evidence. Both husband and the woman denied having a sexual relationship, and wife’s investigator only saw the one brief kiss. Snyder v. Snyder, 1995 Va. App. LEXIS 523 (Va. Ct. App. June 20, 1995).

Where the ex-husband argued the ex-wife engaged in an extra-marital sexual relationships with two female prison inmates, but he conceded that proof of the adultery ground on the part of wife did not appear sufficient, the trial court properly granted the divorce without finding fault on the part of the ex-wife. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

Where the record established that the parties had been separated in excess of one year when the trial court granted the divorce on this ground, there were no grounds to reverse the decision of the trial court, despite the husband’s claim of the wife’s adultery; the husband’s evidence of the wife’s alleged adultery did not rise above the level of speculation and suspicion. Noce v. Noce, 2006 Va. App. LEXIS 149 (Va. Ct. App. Apr. 11, 2006).

The trial court’s finding that the wife did not commit adultery was not supported on the record where she admitted that she spent six nights in the same bed with her former paramour and that she spent subsequent nights living in his home prior to the commissioner’s hearing. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

Effect on support. —

Adultery is a fault ground for divorce and therefore a finding that a party has committed adultery generally is an absolute bar to the adulterous party receiving spousal support. Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687, 2015 Va. App. LEXIS 145 (2015).

As an equitable distribution factor. —

Trial court did not abuse its discretion in its award of marital assets because it appropriately found that the wife’s infidelity disrupted both the operation of the family business and the well-being of the family; the trial court was not required to make an equal distribution of assets but acted well within its statutory discretion in considering the grounds for divorce and other evidence of each spouse’s contributions. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

III.Desertion.

A.In General.

Definition. —

Desertion is a breach of matrimonial duty, and is composed: first, of the breaking off of matrimonial cohabitation; and, secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete, and a mere separation by mutual consent is not a desertion by either party. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Crounse v. Crounse, 108 Va. 108 , 60 S.E. 627 , 1908 Va. LEXIS 15 (1908) (see also Bailey v. Bailey, 62 Va. (21 Gratt.) 43 (1871); Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Harris v. Harris, 72 Va. (31 Gratt.) 13 (1878); Washington v. Washington, 111 Va. 524 , 69 S.E. 322 (1910); Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651 (1986); Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658 (1986)).

Desertion in divorce law is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or wrongful conduct of the other. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871).

In the context of both subdivision (6) of this section and § 20-95 desertion is a breach of matrimonial duty — an actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Desertion means leaving relationship instead of home. —

Desertion as a ground of divorce does not depend on who actually leaves the family home. It means desertion of the marital relationship. Desertion may be “constructive,” for cruelty by one party, which results in the other party’s enforced separation, is tantamount to desertion by the party performing the cruel acts. Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

“Matrimonial cohabitation” consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Desertion must be willful. —

The desertion, to justify a decree for an absolute divorce, must be a willful desertion, and the court to which the evidence is submitted can only determine whether or not such desertion is willful by having all the facts and attendant circumstances fully and frankly presented. Walker v. Walker, 120 Va. 410 , 91 S.E. 180 , 1917 Va. LEXIS 122 (1917).

And intent is a necessary element of desertion. —

But the mere cessation of marital intercourse in the sexual sense or withdrawal from matrimonial cohabitation does not amount to desertion, a necessary element of desertion being the intent on the part of the offender to break permanently the cohabitation or continuance of the marital or family life. Richardson v. Richardson, 8 Va. L. Reg. 257 (1922).

Generally, mere coolness and denial of sexual intercourse, where other marital duties are performed, does not constitute desertion in the sense used in the law of divorce. Aichner v. Aichner, 215 Va. 624 , 212 S.E.2d 278, 1975 Va. LEXIS 200 (1975).

A party is guilty of desertion, as the term is used in subdivision (6) of this section, when he or she breaks off matrimonial cohabitation with an intent to desert. Breschel v. Breschel, 221 Va. 208 , 269 S.E.2d 363, 1980 Va. LEXIS 237 (1980); Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

If the husband changes his place of abode and the wife, without legal excuse, refuses to live there with him, such refusal constitutes desertion on her part. Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952).

Desertion is a continuing offense. —

When once commenced, it is presumed to continue, until the contrary appears. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871).

Once separation and intent to desert have been established, the desertion is presumed to continue until the contrary is shown. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Husband moving to the family’s second home and having sporadic communication and sexual intercourse with the wife did not constitute cohabitation because there was no accompanying resumption of marital duties or cohabitation on a continuous basis, and intent to desert was found from husband’s withdrawal of $100,000 from couple’s joint bank account a few days before telling his wife he was moving out. Thus, the wife was properly awarded a divorce on the ground of desertion. Gruettner v. Gruettner, 2004 Va. App. LEXIS 556 (Va. Ct. App. Nov. 16, 2004).

Duration. —

Under § 20-95 , unlike subdivision (6) of this section, no specific period is prescribed during which the desertion must continue to entitle a party to a divorce from bed and board. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Ending desertion. —

In order to end a desertion, the parties must resume the matrimonial cohabitation with the intent to end the desertion. Not only is resumption of sexual relations a factor, the parties also must resume the performance of marital duties while living together on a continuous basis. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Insanity after desertion. —

Where a divorce is sought on the ground of desertion and it appears that within three months after the alleged desertion the defendant became insane, and remained so until suit for divorce was begun, the insanity of the defendant is a bar to the suit. Wright v. Wright, 125 Va. 526 , 99 S.E. 515 , 1919 Va. LEXIS 42 (1919).

Inability of wife to prove the allegations of her cross-bill for desertion does not amount to any marital fault on her part. Thomasson v. Thomasson, 225 Va. 394 , 302 S.E.2d 63, 1983 Va. LEXIS 235 (1983).

Spouse free from fault although conduct of other spouse not established. —

Spouse may be free from legal fault in breaking off cohabitation, and hence entitled to support and maintenance, even though she cannot establish that other spouse’s conduct constituted the foundation of a proceeding for divorce. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

Single act of intercourse did not show intent to end desertion. —

The trial court erred in dismissing husband’s cross-bill for divorce on the ground of desertion because of a single act of sexual intercourse between the parties that occurred during the pendency of the case. The jurisdiction of a trial court to adjudicate a divorce proceeding is not destroyed by conduct of the parties that might require dismissal of the bill or cross-bill. Rather, jurisdiction remains in the court to grant or refuse the requested relief in view of the facts as shown by the evidence. The evidence did not show a break in the separation of the parties with intent to end the desertion. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Standard of proof. —

Neither precedent nor the reasons for requiring an unusually high burden of proof standard exists in cases of desertion. The burden of proving desertion should be by a preponderance of the evidence. Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37, 3 Va. Law Rep. 1475, 1986 Va. App. LEXIS 386 (1986).

Desertion must be proved by a preponderance of the evidence. Graves v. Graves, 4 Va. App. 326, 357 S.E.2d 554, 3 Va. Law Rep. 2865, 1987 Va. App. LEXIS 185 (1987).

Evidence held sufficient. —

Circuit court properly found that a wife proved desertion because the evidence permitted a conclusion that the husband intended to desert the wife when he broke off the matrimonial cohabitation and purchased a home with his former girlfriend several months before he actually left the marital residence. Garza v. Garza, 2018 Va. App. LEXIS 352 (Va. Ct. App. Dec. 18, 2018).

B.What Constitutes.

Desertion must have occurred before bringing of suit. The desertion relied on for divorce must be alleged and proved to have occurred prior to the bringing of the suit. Plattner v. Plattner, 202 Va. 263 , 117 S.E.2d 128, 1960 Va. LEXIS 216 (1960).

It seems well settled that the absenting of one spouse from the other after the institution and during the pendency of a suit for a divorce is not desertion in law and it is not an act upon which a suit for desertion may be predicated. Indeed, in many cases it is highly proper that such physical separation should be, and under many circumstances it is commendable. Hudgins v. Hudgins, 181 Va. 81 , 23 S.E.2d 774, 1943 Va. LEXIS 154 (1943); Plattner v. Plattner, 202 Va. 263 , 117 S.E.2d 128, 1960 Va. LEXIS 216 (1960).

It is of utmost importance to the proper disposition of a desertion issue that the date plaintiff left defendant be established, because one spouse is not guilty of legal desertion in separating from the other after the institution of a suit for divorce or during its pendency. Painter v. Painter, 215 Va. 418 , 211 S.E.2d 37, 1975 Va. LEXIS 167 (1975).

Defendant, having sought a divorce from plaintiff on the ground of desertion, had the burden of proving that the desertion occurred prior to the filing by plaintiff of her bill of complaint. Painter v. Painter, 215 Va. 418 , 211 S.E.2d 37, 1975 Va. LEXIS 167 (1975).

Trial court erred in holding that wife’s departure from the family domicile, one day after her suit for divorce was filed, constituted desertion on the wife’s part, for one spouse is not guilty of legal desertion in separating from the other after the institution of a suit for divorce or during its pendency. Alls v. Alls, 216 Va. 13 , 216 S.E.2d 16, 1975 Va. LEXIS 241 (1975).

A mere separation by mutual consent is not desertion by either party. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Devers v. Devers, 115 Va. 517 , 79 S.E. 1048 , 1913 Va. LEXIS 64 (1913).

Willful desertion cannot be inferred from the fact that the parties do not live together. Mere cessation of cohabitation is not enough. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871); Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890).

Where a husband has withdrawn from the marriage bed, has declined to allow his wife to keep house for him, and has effectually deposed her as his wife, this constitutes desertion, although he did not decline to furnish his wife a living in his home, and continued for a time to pay her bills for clothing. Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920).

A spouse may not break off cohabitation and successfully claim constructive desertion unless the other’s conduct is sufficient to establish the foundation of a divorce proceeding. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986); Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30, 5 Va. Law Rep. 147, 1988 Va. App. LEXIS 82 (1988).

Where the wife broke off matrimonial cohabitation with an intent to desert and without legal justification, the cross-bill of wife on the ground of constructive desertion was properly rejected. Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

Proof of breaking off of cohabitation with intent to desert. —

In the absence of justification apparent from plaintiff’s own evidence, proof by plaintiff of an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, entitles a deserted party to a divorce. Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

The willful withdrawal of the privilege of sexual intercourse, without just cause or excuse, constitutes willful desertion under this section, when such withdrawal is accompanied with such willful breach and neglect of other marital duties as to practically destroy the home life in every true sense and to render the marriage state well-nigh intolerable and impossible to be endured. Such conduct, on the part either of husband or wife, is considered to be a general withdrawal from the duties of the marital relationship; and, if willfully done, without just cause or excuse, this, by the great weight of authority, constitutes willful desertion. Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 , 1922 Va. LEXIS 36 (1922); Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719, 3 Va. Law Rep. 1775, 1987 Va. App. LEXIS 151 (1987).

A spouse’s unjustified withdrawal of sexual intercourse constitutes desertion when such withdrawal is accompanied with such willful breach and neglect of other marital duties as to practically destroy home life in every true sense, and to render the marriage state well-nigh intolerable and impossible to be endured. Goodwyn v. Goodwyn, 222 Va. 53 , 278 S.E.2d 813, 1981 Va. LEXIS 273 (1981).

But withdrawal of sexual intercourse alone is not desertion. —

Mere withdrawal of sexual intercourse, although based on no just cause or excuse, where the marital duties are otherwise performed, does not constitute desertion. Goodwyn v. Goodwyn, 222 Va. 53 , 278 S.E.2d 813, 1981 Va. LEXIS 273 (1981).

In a divorce proceeding where the husband alleged that his wife deserted him, the evidence failed to reveal that the wife neglected her familial responsibilities since she contributed to the well-being of her family by working and by sharing in the responsibility of cleaning the house, cooking meals, and caring for the children and, further, the evidence showed that there was a cessation of sexual intercourse for only a period of less than two months, the evidence was insufficient to support the finding of the trial court that the wife willfully deserted her husband. Goodwyn v. Goodwyn, 222 Va. 53 , 278 S.E.2d 813, 1981 Va. LEXIS 273 (1981).

Mere denial of sexual intercourse, where other marital duties are performed, does not constitute desertion. Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Significant marital duties must have been breached where sexual privileges withdrawn. —

Where sexual privileges are willfully withdrawn without just cause or excuse, a finding of desertion does not require the breach and neglect of all marital duties but only the breach of other significant marital duties, which results in the practical destruction of home life in every true sense. Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719, 3 Va. Law Rep. 1775, 1987 Va. App. LEXIS 151 (1987).

Declaration as to possibility of resuming marital relationship. —

A husband cannot push his wife away from him, reject her appeal for a reconciliation and a restitution of her marital rights, tell her time and again and without reasonable excuse that she cannot come back as his wife, and yet not be held to have deserted her merely because he says that he might take her back after an indefinite period of years, when she should, in some way not indicated by him, have lived out her life so as to expiate an act of her childhood which, while improper in itself, was committed before she had reached the age of discretion. Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920).

Wife not entitled to support where she sought reconciliation with previous husband. —

Where the filing of a wife’s bill of complaint, her departure from the marital home, and her out-of-town trip with her former husband were carefully timed to enable her to leave her present husband and pursue a reconciliation with her former husband without jeopardizing her claim to spousal support, the wife was guilty of desertion and would not be entitled to spousal support. Sprott v. Sprott, 233 Va. 238 , 355 S.E.2d 881, 3 Va. Law Rep. 2321, 1987 Va. LEXIS 190 (1987).

Cruelty on the part of the husband which results in the wife’s enforced separation from his bed and board is tantamount to desertion on his part. Davenport v. Davenport, 106 Va. 736 , 56 S.E. 562 , 1907 Va. LEXIS 141 (1907); Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920).

Constructive desertion based on cruelty. —

Evidence supported the trial court’s finding of the husband’s cruelty to the wife, under subdivision A (6) of § 20-91 , which was an adequate basis for awarding the wife a divorce on the grounds of constructive desertion, despite the wife remaining in the marital home. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

Trial court properly granted a wife a divorce on the grounds of cruelty and constructive desertion where the evidence showed that the husband had been involved in repeated, unprotected sexual encounters while continuing to have sex with his wife and that he refused to give up his extra-marital activities resulting in the wife refusing to allow him to return to the marital home when he asked to come home. Shaffer v. Shaffer, 2003 Va. App. LEXIS 415 (Va. Ct. App. July 29, 2003).

Facts held to show desertion by husband. Beers v. Beers, 198 Va. 682 , 96 S.E.2d 139, 1957 Va. LEXIS 124 (1957).

Wife’s divorce from her husband was summarily affirmed on the ground of desertion where the husband broke off marital cohabitation and ordered the wife to leave the marital home; the lump sum distribution for the marital property was also affirmed, as was the order of spousal support, in consideration of the income and expenses of the parties. Knepp v. Niece, 2003 Va. App. LEXIS 29 (Va. Ct. App. Jan. 28, 2003).

It was not an abuse of discretion to deny a wife’s request for spousal support, because, inter alia, the evidence was sufficient to prove that the wife’s misconduct constituted desertion and constructive desertion, and the wife’s assault on the husband after they had separated could be considered. Morgan v. Watkins, 2007 Va. App. LEXIS 412 (Va. Ct. App. Nov. 13, 2007).

Because a husband moved out of the marital residence while the wife was out of town, because the husband’s questions on appeal were either unpreserved or were based on harmless error, and because the husband had ample opportunity to present his case to the court, the evidence supported a commissioner’s finding of desertion in favor of the wife. Hawk v. Hawk, 2008 Va. App. LEXIS 456 (Va. Ct. App. Oct. 14, 2008).

C.Permanency.

A desertion which is complete at the time and gives no promise of a return within a reasonable time, certainly becomes permanent in the eyes of the law when the offending party refuses without cause to renew the marriage relation at the request in good faith of the other party. Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920).

D.Justification.

Legally justified departure is not desertion even absent grounds for divorce. —

Where a party breaking off cohabitation establishes that such conduct was legally justified, that party is not guilty of desertion even though the conduct of the other party may be insufficient to establish a judicial proceeding for a divorce. Thus, the fact that husband’s conduct did not constitute cruelty amounting to constructive desertion does not, standing alone, establish that wife was without legal justification in leaving the marital abode. Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651, 1986 Va. App. LEXIS 199 (1986).

Desertion by one consort of the other can only be justified by showing such conduct on the part of the deserted party as would entitle the other to a divorce a mensa et thoro, and nothing short of this will justify a willful desertion, or a continuance of it. Crounse v. Crounse, 108 Va. 108 , 60 S.E. 627 , 1908 Va. LEXIS 15 (1908); Towson v. Towson, 126 Va. 640 , 102 S.E. 48 , 1920 Va. LEXIS 16 (1920) (see Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Harris v. Harris, 72 Va. (31 Gratt.) 13 (1878); Hutchins v. Hutchins, 93 Va. 68 , 24 S.E. 903 (1896)).

A spouse may not break off cohabitation and successfully claim constructive desertion unless the other’s conduct is sufficient to establish the foundation of a divorce proceeding. Breschel v. Breschel, 221 Va. 208 , 269 S.E.2d 363, 1980 Va. LEXIS 237 (1980).

Gradual breakdown in relationship. —

One spouse is not legally justified in leaving the other merely because there has been a gradual breakdown in the marital relationship. Sprott v. Sprott, 233 Va. 238 , 355 S.E.2d 881, 3 Va. Law Rep. 2321, 1987 Va. LEXIS 190 (1987).

Fact that husband is rude and dictatorial is no ground for desertion. —

Because a husband is rude and dictatorial in his speech to his wife, exacting in his demands upon her, and sometimes unkind and negligent in his treatment of her, even when she was sick and weary in nursing their sick child, is no legal grounds for her leaving him. Carr v. Carr, 63 Va. (22 Gratt.) 168, 1872 Va. LEXIS 10 (1872) (see Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878); Hutchins v. Hutchins, 93 Va. 68 , 24 S.E. 903 (1896)).

Violent conduct which led wife to fear for safety justified her leaving home. —

Evidence held sufficient to support the trial court’s finding that the wife was justified in leaving the husband, where, even if his conduct did not amount to cruelty, it was violent, leading wife to fear for her physical safety and seek psychological assistance, and the trial court properly could conclude that his conduct was the provoking cause for her leaving the home. Seemann v. Seemann, 233 Va. 290 , 355 S.E.2d 884, 3 Va. Law Rep. 2389, 1987 Va. LEXIS 196 (1987).

A wife is free from legal fault in leaving her husband where she reasonably believes her health is endangered by remaining in the household and she has unsuccessfully taken whatever reasonable measures might eliminate the danger without breaking off cohabitation. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

A wife is free from legal fault in leaving her husband where she reasonably believes her health is endangered by remaining in the household and she has unsuccessfully taken whatever reasonable measures might eliminate the danger without breaking off cohabitation. Breschel v. Breschel, 221 Va. 208 , 269 S.E.2d 363, 1980 Va. LEXIS 237 (1980).

Failure of husband to maintain wife’s authority no justification. —

The wife having left her husband in 1863, upon the ground that he will not control his servants and maintain her rightful authority as his wife, the husband is entitled to a decree for a divorce a vinculo matrimonii on the ground of desertion, on a bill filed by him in 1877. Harris v. Harris, 72 Va. (31 Gratt.) 13, 1878 Va. LEXIS 24 (1878) (see also Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878); Hutchins v. Hutchins, 93 Va. 68 , 24 S.E. 903 (1896)).

Where the conduct of the wife did not originally cause the separation nor its continuance, as a justification for the desertion by the husband, the conduct of the wife must be disregarded. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 , 1920 Va. LEXIS 29 (1920).

Conduct preventing cohabitation justifies desertion. —

If the husband had repented of his desertion of the wife, and had made any overture with the intention of ending the separation, and any conduct on her part amounting to cruelty to him had prevented his cohabiting with her in the relationship of man and wife, that would have justified his thereafter continuing to live apart from the wife, and, so long as such situation continued, the wife, in contemplation of law, would have been considered as guilty of desertion. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 , 1920 Va. LEXIS 29 (1920).

Departure may be based on reasonable belief of harm. —

If a wife leaves the marital abode for a cause other than to intentionally desert her husband, and the proof of such cause falls short of constituting constructive desertion on the husband’s part, yet is sufficient to cause the wife to reasonably believe that her health or well being is endangered by remaining in the household, and, prior to her departure she has unsuccessfully taken whatever measures might be expected to eliminate the concern, then her departure is justified. In such cases the wife is not guilty of desertion because her intent is not to abandon her husband, but rather to shield herself from the cause of such concern. Each such departure must be judged by the trial court on the facts of the case then before it. Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651, 1986 Va. App. LEXIS 199 (1986).

Demand during argument that spouse leave is not constructive desertion. —

A husband’s requests during arguments that wife leave the home do not support a constructive desertion claim. A bare demand to “get out” does not constitute grounds for divorce based on constructive desertion. Courts should not sever marriage bonds merely because husband and wife, through lack of patience or uncongenial natures, cannot live happily together. Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651, 1986 Va. App. LEXIS 199 (1986).

Burden of justifying departure. —

When one of the parties has broken off the matrimonial cohabitation by departing from their place of residence, the burden of going forward with the evidence of justification rests upon the party claiming it, unless such justification appears from the testimony adduced by the other party. Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651, 1986 Va. App. LEXIS 199 (1986).

Duty of going forward with evidence of justification rests upon party who leaves, unless justification appears from testimony adduced by remaining party. Seehorn v. Seehorn, 7 Va. App. 375, 375 S.E.2d 7, 5 Va. Law Rep. 820, 1988 Va. App. LEXIS 124 (1988).

When desertion is established, the duty of going forward with evidence of justification and excuse then rests on the defendant, unless such justification appears from the testimony adduced by the plaintiff. See Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

Misconduct of an offending spouse which will justify the other in leaving must be so serious that it makes the relationship intolerable or unendurable. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d 535, 3 Va. Law Rep. 1, 1986 Va. App. LEXIS 293 (1986).

Justification for leaving the marital home arises where the conduct of the other spouse has caused conditions in the marital home to be intolerable. Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30, 5 Va. Law Rep. 147, 1988 Va. App. LEXIS 82 (1988).

Misconduct must make marriage intolerable or unendurable. —

Where leaving is alleged to have been caused by misconduct of spouse who remains in family residence, such misconduct must be proved to be so serious that it makes marital relationship intolerable or unendurable. Seehorn v. Seehorn, 7 Va. App. 375, 375 S.E.2d 7, 5 Va. Law Rep. 820, 1988 Va. App. LEXIS 124 (1988).

To constitute a defense to the husband’s prima facie showing of desertion, the wife must prove misconduct on the part of the husband sufficient in scope to constitute a ground of divorce in her favor against the husband. One spouse is not justified in leaving the other unless the conduct of the wrongdoer could be made the foundation of a judicial proceeding for divorce. Nothing short of such conduct will justify a willful separation or a continuance of it. Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658, 1986 Va. App. LEXIS 260 (1986).

Intent inferred absent evidence of justification. —

In the absence of evidence to show justification or excuse for leaving, wife would be guilty of desertion as claimed by husband as the intent would necessarily be inferred. Brawand v. Brawand, 1 Va. App. 305, 338 S.E.2d 651, 1986 Va. App. LEXIS 199 (1986).

Wife no longer expected to follow husband’s change of abode. —

Where a spouse refuses to move from the marital home when the other spouse, because of job opportunity or other reason, moves and attempts to establish a new marital home, whether desertion has occurred depends upon the justification for one spouse’s decision to establish a new marital residence and the other’s justification for refusing to follow. This determination is not dependent on the spouse’s gender; therefore, the outmoded expectation that a wife is expected to follow her husband’s change of abode is no longer applicable. Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30, 5 Va. Law Rep. 147, 1988 Va. App. LEXIS 82 (1988).

Wife legally deserted marriage and forfeited her right to spousal support, and her complaints that husband absented himself from home and his proper share of child discipline while working to provide financially for her and family did not serve as justification for leaving him, where wife’s complaint of lack of intimacy in the marriage was no more than reflection of different personalities of these marital partners and where complaint of infrequency of sexual intercourse was pattern developed uniquely between them almost from beginning of marriage. Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533, 5 Va. Law Rep. 1301, 1989 Va. App. LEXIS 3 (1989).

Excessive consumption of alcohol no justification. —

Evidence of excessive consumption of alcohol did not as matter of law render cohabitation unsafe by endangering life or health and, therefore, did not support wife’s claim of constructive desertion. Seehorn v. Seehorn, 7 Va. App. 375, 375 S.E.2d 7, 5 Va. Law Rep. 820, 1988 Va. App. LEXIS 124 (1988).

Wife was not justified in leaving household. —

Where wife argued that she shared in the housework, the cooking and cleaning, but was not allowed equal standing in the household otherwise, and where no evidence was established that husband’s conduct constituted cruelty, nor did any evidence establish that wife reasonably believed her health or well being was endangered by remaining in the marital home, there was no evidence in the record supporting the trial court’s finding of legal justification for wife’s leaving the marital home; therefore, the court erred in not awarding husband a divorce on the ground of desertion. Lee v. Lee, 13 Va. App. 118, 408 S.E.2d 769, 8 Va. Law Rep. 854, 1991 Va. App. LEXIS 255 (1991).

Because the evidence failed sufficiently to establish a justification for a wife’s final and willful departure from the marital home, the husband was entitled to a divorce on grounds of desertion. There was insufficient evidence to demonstrate constructive desertion, as the wife provided no medical evidence from doctors or health care providers to corroborate her claim that the husband’s behavior toward her made her “sick.” Allen v. Allen, 2007 Va. App. LEXIS 390 (Va. Ct. App. Oct. 23, 2007).

Wife was justified in not joining her husband when he moved where: the parties had previously separated; they slept in different rooms; sexual intercourse had ceased; the husband had asserted economic control, refusing the wife money even for clothing; and the husband used alcohol excessively, often absented himself from the home, and profanely, verbally abused the wife, even in the presence of their children. Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30, 5 Va. Law Rep. 147, 1988 Va. App. LEXIS 82 (1988).

E.Evidence.

Long continued absence without detaining cause, is potent proof of the intent to desert. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871); Carr v. Carr, 63 Va. (22 Gratt.) 168, 1872 Va. LEXIS 10 (1872); Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Harris v. Harris, 72 Va. (31 Gratt.) 13, 1878 Va. LEXIS 24 (1878); Washington v. Washington, 111 Va. 524 , 69 S.E. 322 , 1910 Va. LEXIS 79 (1910).

Evidence held sufficient. —

See Crounse v. Crounse, 108 Va. 108 , 60 S.E. 627 (1908); Lee v. Lee, 112 Va. 719 , 72 S.E. 689 (1911); Hairston v. Hairston, 117 Va. 207 , 84 S.E. 15 (1915); Johnson v. Johnson, 117 Va. 504 , 85 S.E. 475 (1915); McCormick v. McCormick, 123 Va. 778 , 97 S.E. 305 (1918); Grim v. Grim, 126 Va. 245 , 101 S.E. 140 (1919); Lamb v. Lamb, 126 Va. 256 , 101 S.E. 223 (1919); Isgett v. Isgett, 126 Va. 599 , 101 S.E. 788 (1920); Dinsmore v. Dinsmore, 128 Va. 403 , 104 S.E. 785 (1920); Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 (1922); Davis v. Davis, 206 Va. 381 , 143 S.E.2d 835 (1965), In accord with the bound volume. See Branham v. Branham, No. 1656-89-3 (Ct. of Appeals Aug. 7, 1990).

Husband proved by a preponderance of the evidence that the wife deserted him where: (1) the husband confronted the wife about the wife being unfaithful; (2) the wife told the husband that the wife wanted a divorce; (3) the wife eventually left the husband and never returned to the marriage again; and (4) the husband unsuccessfully asked the wife to return to the marriage. Pursuant to subdivision A 6 § 20-91 , the husband showed that the wife left the husband and intended to desert the marriage. McCauley v. McCauley, 2008 Va. App. LEXIS 82 (Va. Ct. App. Feb. 19, 2008).

Insufficient evidence. —

See Rogers v. Rogers, 170 Va. 417 , 196 S.E. 586 , 1938 Va. LEXIS 198 (1938); Lowdon v. Lowdon, 183 Va. 78 , 31 S.E.2d 271, 1944 Va. LEXIS 132 (1944); Upchurch v. Upchurch, 194 Va. 990 , 76 S.E.2d 170, 1953 Va. LEXIS 168 (1953); Owens v. Owens, 197 Va. 681 , 90 S.E.2d 776, 1956 Va. LEXIS 139 (1956).

The evidence did not support the commissioner’s finding of desertion, where, when the wife left the marital abode she took only her purse and a jacket with her, her statement to her daughter that she might not be back did not establish a clear intent to desert the marriage, and her refusal to return, after having been assaulted on a prior occasion when she came back to the house, was not proof of an intent on her part to desert the marriage. Graves v. Graves, 4 Va. App. 326, 357 S.E.2d 554, 3 Va. Law Rep. 2865, 1987 Va. App. LEXIS 185 (1987).

The evidence was insufficient to grant the husband a divorce on desertion grounds based on the evidence that the husband did not object to the wife’s departure from the marital home. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

IV.Separation.

Separation ground not exclusive. —

A court is not required to grant a divorce under the separation ground to the exclusion of all other proven grounds. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975).

Grounds must exist when suit filed. —

If the grounds for divorce under this section did not exist when the suit was filed, even though the parties had lived separate and apart continuously for one year at the date of the hearing, then grounds for divorce did not exist at the time of the hearing. Jones v. Jones, 2000 Va. App. LEXIS 407 (Va. Ct. App. May 30, 2000).

Because a wife failed to request permanent or temporary spousal support in any valid pleading, and because the wife failed to comply with subdivision (9)(a) of § 20-91 and Va. Sup. Ct. R. 1:8, it was error for the trial court to grant a reservation of spousal support to her pursuant to § 20-107.1 (D). Harrell v. Harrell, 272 Va. 652 , 636 S.E.2d 391, 2006 Va. LEXIS 105 (2006).

Husband was not an aggrieved because he was the prevailing party below; the circuit court granted the husband’s motion to reconsider and dismissed the wife’s complaint for divorce; the circuit court agreed with the husband that it lacked jurisdiction to hear the matter because the wife filed her complaint for divorce before the parties had been separated, with the intent to separate, for more than one year. Kesser v. Kesser, 2016 Va. App. LEXIS 258 (Va. Ct. App. Oct. 11, 2016).

One-year separation period. —

Nothing in § 20-91 or § 20-121.02 required that the one-year separation period had to occur prior to the filing of the bill of complaint in order for the trial court to have jurisdiction to enter a final decree of divorce; when the trial court entered the final decree awarding appellee wife a divorce, the one-year separation period had occurred. Motley v. Motley, 2007 Va. App. LEXIS 133 (Va. Ct. App. Apr. 3, 2007), overruled in part, Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Subdivision A 9 of § 20-91 provides that a person may seek a divorce from his or her spouse after they have lived separate and apart for more than one year. Section 20-121.02 provides that a party may move for a divorce based on living separate and apart without amending the complaint for divorce. Nothing in these code sections requires that the one-year separation period must occur prior to the filing of the complaint in order for the circuit court to have jurisdiction to enter a final decree of divorce. Pourbabai v. Pourbabai, 2018 Va. App. LEXIS 233 (Va. Ct. App. Aug. 21, 2018).

Subdivision (9) is constitutional, even though it is in effect retroactive. Canavos v. Canavos, 205 Va. 744 , 139 S.E.2d 825, 1965 Va. LEXIS 129 (1965); Hagen v. Hagen, 205 Va. 791 , 139 S.E.2d 821, 1965 Va. LEXIS 135 (1965).

“Lived separate and apart” in subdivision (9) means more than mere physical separation. Hooker v. Hooker, 215 Va. 415 , 211 S.E.2d 34, 1975 Va. LEXIS 166 (1975).

Parties shown to be living “separate and apart.” —

Husband and wife were living separate and apart for divorce purposes under § 20-91 A (9) (a), where they no longer engaged in sexual intercourse and husband openly continued a sexual relationship with another woman, and wife intended to permanently discontinue the marital relationship when she moved husband into the guest bedroom after finding a videotape of him having sexual intercourse with another woman. Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398, 2002 Va. App. LEXIS 290 (2002).

Trial court did not err in finding that the parties lived separate and apart for at least one year prior to their divorce, despite the fact that the wife testified that six months after the parties separated, they had sexual intercourse on a few occasions, the wife added that she did not intend for such conduct to mean that there was a resumption in the marital relationship and the remaining evidence showed that the parties continued to live separate and apart with no intention of resuming the marital relationship. Pearson v. VanLowe, 2005 Va. App. LEXIS 91 (Va. Ct. App. Mar. 8, 2005).

The object of the legislature in adding subdivision (9) was to grant a divorce to either spouse when they had lived separate and apart without interruption for three years (now one year), regardless of fault, on the theory that society would be better served by terminating marriages in law which have ceased to exist in fact. Canavos v. Canavos, 205 Va. 744 , 139 S.E.2d 825, 1965 Va. LEXIS 129 (1965).

The object of the legislature in enacting subdivision (9) was to permit the granting of a divorce to either spouse “regardless of fault” when the parties have lived separate and apart for the required period. Crittenden v. Crittenden, 210 Va. 76 , 168 S.E.2d 115, 1969 Va. LEXIS 199 (1969) (commented on in 4 U. Rich. L. Rev. 347 (1970)).

One has no vested right to prevent his spouse from securing a divorce under subdivision (9). Crittenden v. Crittenden, 210 Va. 76 , 168 S.E.2d 115, 1969 Va. LEXIS 199 (1969).

Subdivision (9) embodies legislative endorsement of woman’s unilateral right to withdraw implied consent to marital sex. The no-fault statute requires that the parties live separate and apart without cohabitation for a specified time period as a prerequisite to securing a no-fault divorce. The very scheme of the statute contemplates a voluntary withdrawal, by either spouse, from the marital relationship. Weishaupt v. Commonwealth, 227 Va. 389 , 315 S.E.2d 847, 1984 Va. LEXIS 258 (1984).

Subdivision (9) specifically provides that fault grounds shall not be a ground for the defense of recrimination to a divorce based upon one-year separation and separation is not “conduct” which will bar a faultless party from obtaining a divorce on the fault of the other party. Derby v. Derby, 8 Va. App. 19, 378 S.E.2d 74, 5 Va. Law Rep. 2059, 1989 Va. App. LEXIS 18 (1989).

Recrimination has no applicability. —

Because a divorce based on one year’s separation involves no fault by either party and, indeed, must be mutually consensual, the doctrine of recrimination has no applicability. Derby v. Derby, 8 Va. App. 19, 378 S.E.2d 74, 5 Va. Law Rep. 2059, 1989 Va. App. LEXIS 18 (1989).

When fault grounds against both parties are cancelled out by recrimination. —

The husband’s suit on the ground of willful desertion was proven, but the defense of cruelty, in recrimination, bars the granting of a divorce to him, and the wife’s suit on the ground of cruelty was proven, but the defense of desertion, in recrimination, bars the granting of a divorce to her. Because both parties were at fault, the only ground for divorce was their separation and the trial court properly refused to grant either party a divorce based upon fault, but granted the divorce on the ground that the parties had lived separate and apart without any cohabitation or interruption for one year. Davis v. Davis, 8 Va. App. 12, 377 S.E.2d 640, 5 Va. Law Rep. 2084, 1989 Va. App. LEXIS 20 (1989).

The party at fault may be granted a divorce under the provisions of subdivision (9) when the husband and wife have lived separate and apart without cohabitation and without interruption for the time specified. Canavos v. Canavos, 205 Va. 744 , 139 S.E.2d 825, 1965 Va. LEXIS 129 (1965).

It was not the intent of the legislature that the party applying for a divorce under subdivision (9) be wholly without fault, or the innocent spouse. Canavos v. Canavos, 205 Va. 744 , 139 S.E.2d 825, 1965 Va. LEXIS 129 (1965).

Subdivision (9) provides that separation without any cohabitation and without interruption for two years [now one year] is a ground for divorce from the bond of matrimony and permits either spouse to bring suit regardless of which one was at fault in bringing about the separation. Mason v. Mason, 209 Va. 528 , 165 S.E.2d 392, 1969 Va. LEXIS 137 (1969).

Trial court did not err in granting wife rather than husband a no-fault divorce, since there was no tangible benefit to be gained by the husband if the no-fault divorce were to be awarded to him as opposed to his wife. The right to spousal support would not be affected by an award of a no-fault divorce since neither party’s duty of support would be affected absent a finding of fault on one party or the other. Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208, 1986 Va. App. LEXIS 237 (1986).

Intent required. —

The General Assembly intended that separation be coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and that this intention must be shown to have been present at the beginning of the uninterrupted period of living separate and apart without any cohabitation. Hooker v. Hooker, 215 Va. 415 , 211 S.E.2d 34, 1975 Va. LEXIS 166 (1975).

Requirement of consciousness of separation when one party is mentally incompetent was removed by the 1970 amendment to this section. Hooker v. Hooker, 215 Va. 415 , 211 S.E.2d 34, 1975 Va. LEXIS 166 (1975).

Incompetency. —

Husband’s alleged incompetency during the requisite one year period of separation was irrelevant to the propriety of awarding a divorce to the husband, as there was no evidence that the husband changed the husband’s mind during that time or abandoned the intent to separate. Andrews v. Creacey, 56 Va. App. 606, 696 S.E.2d 218, 2010 Va. App. LEXIS 313 (2010).

Where neither party was entitled to successfully assert adultery as ground for divorce, and finding was supported by evidence that both parties were at fault in causing the separation, there did not exist a ground for divorce under any other section of the Code except subdivision (9)(a). Surbey v. Surbey, 5 Va. App. 119, 360 S.E.2d 873, 4 Va. Law Rep. 702, 1987 Va. App. LEXIS 224 (1987).

Res judicata or recrimination. —

A cause of action for divorce under subdivision (9) is not subject to a plea of res judicata or recrimination with respect to any other ground. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975).

For there to be an “application” under subdivision (9)(a), the party applying must himself seek affirmative relief by way of divorce in his favor through an original divorce proceeding or through a cross-bill filed in a pending suit. Moore v. Moore, 218 Va. 790 , 240 S.E.2d 535, 1978 Va. LEXIS 148 (1978).

The separation statute may be given a limited retrospective operation in the sense that it applies to separations which began prior to the enactment of the statute and continued after its enactment. It should be thus applied where it provides for a divorce on the ground that the parties have lived separate and apart for a stated period of time, or for such a period prior to the filing of the bill of complaint. Hagen v. Hagen, 205 Va. 791 , 139 S.E.2d 82 (1965).

The legislative intendment was for subdivision (9) to apply to existing situations when it was enacted. Hagen v. Hagen, 205 Va. 791 , 139 S.E.2d 821, 1965 Va. LEXIS 135 (1965).

No proper corroboration. —

Evidence failed to corroborate that the parties lived separate and apart continuously without cohabitation for one year and that at least one of the parties intended to end the marriage at the time of their separation, and the circuit court erred in denying the husband’s motion to set aside the divorce; standing alone, evidence that parties lived at separate residences did not establish that they intended to end their marriage, and while exhibits corroborated that the husband had lived at the marital residence throughout the separation, they only established that the wife lived at her residence for approximately six months rather than the one-year period required. Belle v. Belle, 2016 Va. App. LEXIS 15 (Va. Ct. App. Jan. 19, 2016).

Supplementing or amending pleadings in view of intervening amendment to section. —

The Supreme Court upon remanding a case suggested the propriety of permitting the parties to supplement or amend their pleadings in view of the intervening amendment to this section regarding separation. Todd v. Todd, 202 Va. 133 , 115 S.E.2d 905, 1960 Va. LEXIS 200 (1960), vacated, op. withdrawn, 117 S.E.2d 679 (Va. 1961).

Neither party to a divorce has an automatic obligation to support the other. Bristow v. Bristow, 221 Va. 1 , 267 S.E.2d 89, 1980 Va. LEXIS 206 (1980).

Party not relieved of obligation to support wife. —

Although a party is granted the divorce under the provisions of subdivision (9), he is not relieved of his obligation to support his wife. Mason v. Mason, 209 Va. 528 , 165 S.E.2d 392, 1969 Va. LEXIS 137 (1969).

In the enactment of subdivision (9) and the “nonfault” amendment in 1962, there was no exception made to the applicability of former § 20-107 , and the court’s power to award alimony remained unaffected. Thus, the existing statutory authority for a chancellor to award alimony to a wife is applicable when a husband obtains the divorce under subdivision (9). Mason v. Mason, 209 Va. 528 , 165 S.E.2d 392, 1969 Va. LEXIS 137 (1969).

Where the court has not adjudicated that the separation was caused by the wife’s fault or misconduct, the husband is not relieved of his obligation to support her after the divorce. Lancaster v. Lancaster, 212 Va. 127 , 183 S.E.2d 158, 1971 Va. LEXIS 311 (1971); Blevins v. Blevins, 225 Va. 18 , 300 S.E.2d 743, 1983 Va. LEXIS 187 (1983).

Where the chancellor made a specific finding that the husband, seeking a divorce under subdivision (9) of this section, had not proven a ground of divorce against the wife, the husband was not relieved of any obligation he might otherwise have to support the wife. Bristow v. Bristow, 221 Va. 1 , 267 S.E.2d 89, 1980 Va. LEXIS 206 (1980).

The right to spousal support is not affected by an award of a no-fault divorce since neither party’s duty of support is affected absent a finding of fault on one party or the other. Surbey v. Surbey, 5 Va. App. 119, 360 S.E.2d 873, 4 Va. Law Rep. 702, 1987 Va. App. LEXIS 224 (1987).

Where a husband requested a reservation of his right to seek spousal support under subsection D of § 20-107.1 , the trial court committed reversible error when it failed to do so because there was no bar to the right of spousal support where the sole ground for the divorce was a one year separation without cohabitation under subdivision 9 of § 20-91 . Stephenson v. Musgrave, 2010 Va. App. LEXIS 203 (Va. Ct. App. May 18, 2010).

Where both parties seek no-fault divorce. —

The trial court did not err in granting a no-fault divorce to the wife pursuant to her bill of complaint rather than granting a no-fault divorce to the husband pursuant to his cross-bill, since there was no tangible benefit to be gained by the husband if the no-fault divorce were to be awarded to him as opposed to his wife. The right to spousal support would not be affected by an award of a no-fault divorce since neither party’s duty of support would be affected absent a finding of fault on one party or the other. Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208, 1986 Va. App. LEXIS 237 (1986).

When husband relieved of obligation to support wife. —

When a divorce is granted under subdivision (9) of this section, the husband is not relieved of his obligation to support his wife unless it is shown that the separation was caused by such fault or misconduct on her part as to constitute ground for a divorce under other provisions of this section, or the provisions of § 20-95 . Brooker v. Brooker, 218 Va. 12 , 235 S.E.2d 309, 1977 Va. LEXIS 164 (1977).

Decree denying support must contain findings. —

When a divorce decree, grounded in subdivision (9), denies an award of spousal support (whether expressly or by failure to address the issue), the decree will be reversed and the cause remanded unless the record on appeal reveals that the chancellor made a finding, supported by credible evidence, either (a) that the appellant was guilty of a violation of subdivision (1), (3), or (6) of this section or § 20-95 , or (b) that, in consideration of the several factors enumerated in § 20-107.1 , the equities of the parties weighed against an award of spousal support. Collins v. Collins, 233 Va. 245 , 355 S.E.2d 332, 3 Va. Law Rep. 2328, 1987 Va. LEXIS 191 (1987).

The fault or misconduct which would deprive a wife of alimony when a no-fault decree is awarded the husband must be such as to constitute grounds for a divorce under some other provision of this section. Young v. Young, 212 Va. 761 , 188 S.E.2d 200, 1972 Va. LEXIS 257 (1972).

Since the wife’s fault or misconduct was not sufficient to entitle the husband to a divorce on the ground of desertion, and the decree entered was not predicated on the wife’s fault or misconduct, that part of the decree denying alimony to the wife was set aside and annulled. Young v. Young, 212 Va. 761 , 188 S.E.2d 200, 1972 Va. LEXIS 257 (1972).

A ruling by the trial court upon granting a husband a no-fault divorce that the wife was not entitled to a divorce on grounds asserted in her cross-bill was not a finding of fault or misconduct on her part such as to permit denial of support and maintenance payments. Brooker v. Brooker, 218 Va. 12 , 235 S.E.2d 309, 1977 Va. LEXIS 164 (1977).

Sufficiency of evidence. —

The trial court erred when it granted a divorce based on the one year separation of the parties, where the trial court had no evidentiary basis for concluding that the parties had lived separate and apart for a period in excess of one year. Graves v. Graves, 4 Va. App. 326, 357 S.E.2d 554, 3 Va. Law Rep. 2865, 1987 Va. App. LEXIS 185 (1987).

Where a husband gave unambiguous testimony of his desire to permanently separate a year before the divorce proceeding and the wife did not present a sufficient record to support her claims of error, the trial court’s divorce judgment under § 20-91 A (9) (a) was proper. Athey v. Athey, 2003 Va. App. LEXIS 483 (Va. Ct. App. Sept. 23, 2003).

Former husband’s unambiguous testimony that the parties had been separated for over a year and that it was his intention to permanently separate from his former wife was sufficient to support the trial court’s decision awarding him a divorce on the ground of a one-year separation. Perry v. Perry, 2004 Va. App. LEXIS 133 (Va. Ct. App. Mar. 30, 2004).

Because a wife’s claim that the parties had lived together within the time period allowed by §§ 20-91 and 20-121.02 , the claim was unpreserved and barred by Va. Sup. Ct. R. 5A:18; because the wife’s case was not supported by law or evidence, the husband was entitled to attorney’s fees and costs. Mayo v. Mayo, 2006 Va. App. LEXIS 443 (Va. Ct. App. Oct. 10, 2006).

Preservation for review. —

Because the trial court considered the factors in subsection E of § 20-107.3 and stated that the ground for divorce was subdivision 9 of § 20-91 , and because the wife’s statement of “seen and objected to” was insufficient to preserve the issue of spousal support for appeal under Va. Sup. Ct. R. 5A:18, the wife’s motions for equitable distribution and spousal support were properly denied. Smith v. Smith, 2012 Va. App. LEXIS 64 (Va. Ct. App. Mar. 6, 2012).

Decree reversed and remanded for finding as to support and maintenance. —

Where the chancellor denied support and maintenance payments without making any finding respecting the various factors required to be considered under former § 20-107 , a no-fault divorce decree was reversed insofar as it failed to make a finding and adjudication as to support and maintenance and was remanded for such a finding and adjudication. Brooker v. Brooker, 218 Va. 12 , 235 S.E.2d 309, 1977 Va. LEXIS 164 (1977).

CIRCUIT COURT OPINIONS

Constitutionality. —

Subdivision A (9)(a) is unconstitutional because it creates a recognized ground for divorce when a husband and wife live separate and apart for one year but does not recognize that ground for divorce for same-sex couples, and that disparity violates constitutional due process and equal protection rights afforded to same-sex married couples; extending the grounds of divorce for same-sex couples to include having lived separate and apart for one year is the appropriate judicial remedy. Celia v. Appel, 102 Va. Cir. 386, 2019 Va. Cir. LEXIS 431 (Fairfax County Aug. 23, 2019).

Standing. —

Wife had standing to bring a divorce on the ground of cruelty where it was not dispositive that the husband’s alleged acts were not committed directly against the wife, and as one of the spouses in the marital union, she was the only person who could seek redress from the court to dissolve the marriage. Lucas v. Lucas, 2021 Va. Cir. LEXIS 109 (Norfolk May 7, 2021).

Knowledge of adultery. —

If a husband is not repulsed enough by his wife’s adultery to seek a physical separation after he files a suit for divorce on the grounds of adultery, then the marriage should not be dissolved because the wife is guilty of adultery. A trial court judge granted a husband a divorce on the ground of having lived separate and apart without cohabitation and without interruption for one year where the husband continued to allow the wife to live with him and the children in the marital home and care for their children despite his knowledge of her adultery, the children’s exposure to her lover, and the fact that the wife may have left the children unattended so that she could be with her lover. McNicholas v. McNicholas, 2004 Va. Cir. LEXIS 117 (Loudoun County June 14, 2004).

Post-separation adultery. —

Mere fact that husband’s admitted adultery occurred post-separation did not mean that the trial court could not be used as a ground for divorce; since that allegation was proven by clear and convincing evidence, the divorce of the husband and wife was granted on the ground of adultery, as alleged in the wife’s complaint. Bushkar v. Bushkar, 2005 Va. C