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Repealed by Acts 1984, c. 140.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. Cir. LEXIS 70 (Roanoke County June 24, 2005).

Sufficient evidence to prove adultery. —

Following a 16-year marriage, although the husband earned approximately $100,000 annually prior to the parties’ separation and the wife was unemployed, because the wife became pregnant with her paramour’s child before the parties’ final separation and, thus, her adultery was the legal ground for the parties’ divorce, pursuant to subdivision A (1) of § 20-91 , the wife was not entitled to spousal support pursuant to § 20-107.1 .Carter v. Carter, 2011 Va. Cir. LEXIS 122 (Salem Nov. 16, 2011).

Wife was granted a divorce based on a husband’s adultery because the evidence well exceeded the clear and convincing standard to prove adultery established by the legislature; the husband testified that he deserted the marital residence to reside with and continue an on-going sexual relationship with another woman, who also testified about the necessary corroborative facts of adultery and desertion. Giambalvo v. Giambalvo, 2018 Va. Cir. LEXIS 432 (Orange County Oct. 14, 2018).

Insufficient evidence to prove adultery. —

Where the evidence established that: (1) parties ceased having sexual intercourse and slept in separate bedrooms for at least a year before they separated; (2) the husband has been seen at the apartment complex of his alleged paramour; (3) the husband’s cell phone bills showed that he had talked to his alleged paramour more than 125 times in two months; (4) the husband was taking Viagra; and (5) that the husband had made a reservation for two at a resort the evidence was insufficient to prove adultery. Gray v. Gray, 2003 Va. Cir. LEXIS 67 (Richmond Apr. 8, 2003).

Wife’s evidence that a private investigator, on two occasions, saw the husband hugging and kissing a waitress was insufficient to prove adultery, although the circumstances were suspicious. Joachim v. Joachim, 2005 Va. Cir. LEXIS 278 (Nelson County July 19, 2005).

Although a husband sought a divorce on the ground of adultery, where no corroborating evidence was presented on the issue of adultery, a no-fault divorce was granted based on the parties living separate and apart for a period of more than one year, without cohabitation and without interruption, pursuant to subdivision A 9(a) of § 20-91 . Trujillo v. Trujillo, 2010 Va. Cir. LEXIS 108 (Salem Oct. 21, 2010).

Evidence of condonation. —

While the evidence indicated that the wife had committed adultery during the course of the parties’ marriage, the husband condoned the adultery by making up with the wife after he discovered the adultery. McDonough v. McDonough, 2012 Va. Cir. LEXIS 17 (Fauquier County Jan. 31, 2012).

What constitutes desertion. —

Court confirmed commissioner’s findings that wife had deserted husband in case where wife asked husband to move to lower level of marital home in September 1999, wife voluntarily moved to an apartment about one year later, husband filed for divorce in December 2000, and parties had not reconciled at time court entered its judgment in February 2002. Wilson v. Wilson, 58 Va. Cir. 245, 2002 Va. Cir. LEXIS 40 (Spotsylvania County Feb. 25, 2002).

Commissioner erred in finding that a wife did not desert her husband where the husband attempted to save the marriage, while the wife made no effort to reconcile, the husband acquiesced and gave his wife approximately $1,000 in order to get her to return to the marital abode, and the wife committed an actual breaking off of the matrimonial cohabitation, which was coupled with intent to desert the marriage with the husband. Therefore, the facts and evidence supported that the wife deserted the marriage. Musick v. Ghods, 2004 Va. Cir. LEXIS 129 (Fairfax County May 20, 2004), aff'd, No. 1675-04-4, 2005 Va. App. LEXIS 103 (Va. Ct. App. Mar. 15, 2005).

Intent is a necessary element of desertion. —

Since proof of desertion requires both: (1) a breach of matrimonial duty, with the breaking off of matrimonial cohabitation; and (2) the intent to desert, a wife was not entitled to a divorce on the basis of desertion where the evidence showed only that the husband left the marital home, but it did not show that the husband intended to desert his marital obligations. Instead, the husband was entitled to divorce on the grounds of a one-year continuous and uninterrupted separation. Ross v. Ross, 63 Va. Cir. 62, 2003 Va. Cir. LEXIS 197 (Fredericksburg June 30, 2003).

Incarceration. —

Wife was granted an absolute divorce because the husband was convicted of a felony after the marriage, was sentenced to a term of confinement of more than one year, and was confined after the felony conviction. Furthermore, cohabitation was not resumed after the wife had knowledge of the confinement. Hastings v. Hastings, 2020 Va. Cir. LEXIS 467 (Culpeper County Nov. 19, 2020).

Evidence supported desertion. —

Evidence showed that the wife left the home without her husband’s knowledge, which suggested pre-planning, and the separation was not by agreement or consent; because the wife presented no evidence that would have established a legal justification for her departure, the court awarded the husband a divorce on the grounds of desertion. Proctor v. Proctor, 2004 Va. Cir. LEXIS 305 (Spotsylvania County Dec. 10, 2004).

Husband committed desertion because he left the marital residence and immediately began residing permanently with another woman; the husband had been consistently absent from the marital residence and had not returned. Giambalvo v. Giambalvo, 2018 Va. Cir. LEXIS 432 (Orange County Oct. 14, 2018).

Constructive desertion and cruelty not basis for decree. —

Where the wife filed a complaint against the husband alleging constructive desertion and cruelty, the husband was awarded a no-fault divorce, as the marriage did not end solely because of the cruelty incidents; the protective order against the husband adequately dealt with the cruelty incidents, and the constructive desertion occurred only as a result of the protective order. Parry v. Parry, 2002 Va. Cir. LEXIS 106 (Loudoun County May 24, 2002).

Mental cruelty not a ground for divorce. —

Mental cruelty was not a ground for divorce pursuant to § 20-91 . Williams v. Williams, 60 Va. Cir. 309, 2002 Va. Cir. LEXIS 397 (Roanoke County Nov. 5, 2002).

Insufficient evidence of cruelty. —

Husband’s claim for spousal support was not barred by subdivision A (9) c because of the fault described in subdivision A (6) of § 20-91 , as the facts were insufficient to prove statutory cruelty. The husband entered his daughter’s room, where both his daughter and his wife were sleeping, with a partially deflated mylar balloon, and the wife testified that she believed he wanted to suffocate her with the balloon; the husband testified that he bounced the balloon off the wife’s head as a playful gesture. Duncan v. Duncan, 2006 Va. Cir. LEXIS 74 (Portsmouth June 14, 2006).

Evidence of cruelty are too vague and inadequate to constitute grounds for divorce based on cruelty where husband was slapped, as that was a single occurrence that did not threaten life or indicate a future intent to commit serious bodily harm and alleged verbal threats were no more than threatening behavior which has not resulted in actual harm. Karim v. Karim Equitable Distrib., 2006 Va. Cir. LEXIS 216 (Fairfax County Oct. 3, 2006).

Circuit court was unable to grant a wife’s counterclaim to issue a divorce based upon husband’s alleged acts of cruelty because, while the court found that the wife’s testimony as to husband’s forcible sodomy against the wife was credible, the record was lacking independent corroboration of the ordeal. Under Virginia law, corroboration of cruelty independent of party admissions remained necessary by statute in a divorce proceeding. Barth v. Kristin P. Barth Opinion Letter, 2021 Va. Cir. LEXIS 123 (Newport News Apr. 15, 2021).

Wife had not alleged sufficient facts to support a cruelty-based divorce as her allegation that she collapsed to the floor upon hearing that the husband had allegedly sexually abused the parties’ daughters and her conclusory allegation that the husband’s actions were emotionally and physically harmful were insufficient to establish that she experienced successive acts of personal injury or ill treatment or that she suffered the requisite bodily injury or actual menace stemming from nonviolent cruelty. Lucas v. Lucas, 2021 Va. Cir. LEXIS 109 (Norfolk May 7, 2021).

Evidence that wife was distant and preoccupied no justification for desertion. —

Husband was guilty of desertion followed by a one-year separation and his wife was awarded a divorce upon those grounds, despite the volume of evidence showing that the wife had become distant and preoccupied, even if true, such behavior did not justify the husband’s desertion of the marital relationship. Rekow v. Rekow, 2008 Va. Cir. LEXIS 141 (Rappahannock County Aug. 15, 2008), aff'd in part, No. 2588-08-4, 2009 Va. App. LEXIS 180 (Va. Ct. App. Apr. 21, 2009).

Evidence insufficient to prove constructive desertion. —

Parties were granted a final decree of divorce a vinculo matrimonii, on the no-fault grounds of a 12-month uninterrupted separation, despite the fact that the separation came as a surprise to the wife who returned home one day to discover that the husband had removed himself, his personal belongings, his clothes, and some of the furniture to a residence he had secretly procured approximately one month earlier. The husband’s reason for leaving was not sufficient to constitute cruelty tantamount to constructive desertion. Vest v. Vest, 2007 Va. Cir. LEXIS 85 (Salem June 6, 2007).

One-year separation period. —

As the court received sufficient evidence, properly corroborated, to demonstrate that the parties had been separated for a period in excess of one year without reconciliation or cohabitation, the court authorized the entry of a no- fault divorce decree upon the counterclaim of the husband pursuant to subdivision A (9) of § 20-91 . Spreadbury v. Spreadbury, 78 Va. Cir. 142, 2009 Va. Cir. LEXIS 8 (Fauquier County Feb. 20, 2009).

In the parties’ action for divorce, the evidence was insufficient to grant the husband a divorce upon desertion but the circuit did receive sufficient evidence demonstrating that the parties had been separated for over one year without reconciliation or cohabitation. Therefore, the entry of a no-fault divorce upon the wife’s complaint under subdivision A (9) of § 20-91 was authorized. Johnson v. Johnson, 2011 Va. Cir. LEXIS 32 (Fairfax County Feb. 7, 2011).

Because the parties had lived separate and apart, continuously, without interruption and without cohabitation, for a period exceeding one year, pursuant to subdivision A (9) of § 20-91 , the wife was awarded a divorce from the husband. Sullivan v. Sullivan, 2011 Va. Cir. LEXIS 204 (Warren County Dec. 16, 2011).

While the husband had not proven his stated grounds for divorce, cruelty and adultery, the court granted the parties a divorce based on a one-year separation without interruption under subdivision A (9)(a) of § 20-91 . McDonough v. McDonough, 2012 Va. Cir. LEXIS 17 (Fauquier County Jan. 31, 2012).

Trial court granted a wife’s request for an uncontested divorce because the husband and wife had lived separate and apart for at least one year. Hester v. Hester, 2022 Va. Cir. LEXIS 14 (Norfolk Mar. 4, 2022).

Parties shown to be living “separate and apart.” —

Wife’s motion pursuant to § 20-121.02 was granted and the wife was awarded a divorce a vinculo matrimonii from the husband on the grounds of having lived separate and apart without any cohabitation and without interruption for one year under subdivision A (9) of § 20-91 ; having considered the factors set forth in subsection E of § 20-107.3 , including the husband’s infidelity, the husband’s child born outside the marriage, and the husband’s greater contribution to the family finances, the wife: (1) was awarded 60 percent of the marital assets, allocated 40 percent of the debt secured by the marital debt, and was awarded 75 percent of the net proceeds from any sale of the marital home; (2) was awarded permanent spousal support; and (3) was not awarded attorney’s fees. Williamson v. Williamson, 2003 Va. Cir. LEXIS 164 (Loudoun County Sept. 23, 2003).

Marriage was dissolved on the no-fault ground provided in subdivision A 9 of § 20-91 because there was persuasive evidence that the separation was consensual; separation was discussed many times prior to the separation as the parties attempted to mediate an amicable separation, the husband rendered at least some assistance and cooperation in the wife’s departure, an agreement was reached on various household items that the wife could take with her, and the husband never accused the wife of desertion until the litigation, thus, all of those factors were indicators that the wife did not willfully desert and abandon the marriage. Loughan v. Loughan, 2003 Va. Cir. LEXIS 244 (Spotsylvania County Nov. 26, 2003).

Because neither party was able to prove fault grounds for divorce in the pleadings, the wife was granted a no-fault divorce, pursuant to her alternative prayer for relief, as provided in subdivision A 9 of § 20-91 , based upon the fact that the parties had been living separate and apart. Sterna v. Sterna, 2003 Va. Cir. LEXIS 245 (Spotsylvania County Dec. 11, 2003).

As the wife proved that the parties separated with the intent by at least one of the parties that the separation be permanent, that, since the date of separation the parties had remained continuously separate and apart, without interruption and without cohabitation, and that said period of separation was in excess of one year, the wife was granted a final decree of divorce, pursuant to subdivision A(9)(a). Crawford v. Crawford, 2003 Va. Cir. LEXIS 253 (Fairfax County Nov. 24, 2003).

Wife was entitled to a divorce from a husband under § 20-91 because the evidence showed the parties had lived separate and apart for over one year. Gardner v. Gardner, 2010 Va. Cir. LEXIS 210 (Hanover County Dec. 14, 2010).

Trial court granted a husband and a wife a no-fault divorce based on the parties living separate and apart for a period of more than one year, without cohabitation and without interruption. While the wife alleged that the husband had committed adultery and also accused him of cruelty, the evidence did not support these bases for divorce. Ellis v. Ellis, 2012 Va. Cir. LEXIS 1 (Salem Jan. 20, 2012).

Parties lived separate and apart without any interruption and without cohabitation since July 24, 2007, because there had been no marital cohabitation since that time; on July 24, 2007, one of the wives and her minor daughter moved out of the parties’ marital residence with little notice given to the other wife, and the parties never resumed marital duties or responsibilities. Celia v. Appel, 102 Va. Cir. 386, 2019 Va. Cir. LEXIS 431 (Fairfax County Aug. 23, 2019).

Court granted wife a divorce a vinculo matrimonii for living separate and apart from the husband without any cohabitation and without interruption for one year; alternatively, the court granted the husband a divorce a vinculo matrimonii on the same grounds. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Living separate and apart not shown. —

Because the parties continued to live in the same house with no satisfactory explanation and insufficient corroboration eliminating the risk of collusion, a divorce could not be granted based on living separate and apart. Jacobi v. Jacobi, 56 Va. Cir. 164, 2001 Va. Cir. LEXIS 449 (Arlington County May 10, 2001).

Where the husband rented living space in the family home during 14 months of the parties’ separation, the parties did not live separate and apart without cohabitation; therefore, the wife’s bill of complaint for dissolution was dismissed. Allen v. Allen, 59 Va. Cir. 475, 2002 Va. Cir. LEXIS 356 (Roanoke County Oct. 7, 2002).

Trial court concluded that the husband and wife were cohabitating, and, thus, did not meet the one-year requirement for the amount of time they needed to be living separate and apart in order to obtain a divorce, as they continued to live together under the same roof even though not in the same room, they held themselves out as a couple at social functions, and they continued to take some meals together. Catalano v. Catalano, 68 Va. Cir. 80, 2005 Va. Cir. LEXIS 61 (Fairfax County Apr. 28, 2005).

Child born of the parties. —

Minor child was recognized as a child born of the parties in the final decree of divorce because the child was born through assisted conception during the time of the parties’ marriage; consistent with the marital benefits bestowed upon the spouse of a gestational mother who conceived a child during the marriage, the gestational mother’s partner was considered a parent. Appel v. Celia, 98 Va. Cir. 140, 2018 Va. Cir. LEXIS 15 (Fairfax County Feb. 8, 2018).

Because there was no clear definition of the phrase “born of the parties,” and the Virginia General Assembly placed importance on minor children in its no-fault divorce statute, a minor child was born of the parties; the circuit court inferred that the Virginia General Assembly considered the impact of divorce on young children when distinguishing litigants with minor children from litigants without any children or litigants with only adult children. Appel v. Celia, 98 Va. Cir. 140, 2018 Va. Cir. LEXIS 15 (Fairfax County Feb. 8, 2018).

Time-barred. —

Wife was time-barred from asserting husband’s sodomy as a recrimination defense because the husband’s sexual relations occurred more than five years before he filed for divorce. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

§ 20-92. Repealed by Acts 1975, c. 644.

§ 20-93. Insanity of guilty party after commencement of desertion no defense.

When the suit is for divorce from the bond of matrimony for willful desertion or abandonment, it shall be no defense that the guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground 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. This section shall apply whether the desertion or abandonment commenced heretofore or shall commence hereafter.

History. Code 1919, § 5103; 1926, p. 869; 1934, p. 20; 1954, c. 389; 1975, c. 644.

Law Review.

For note on separation without fault and postnuptial insanity, see 4 U. Rich. L. Rev. 347 (1970).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 19, 28.

CASE NOTES

Section changes prior rule. —

Prior to the enactment of this section in 1926, it was the law in this State that when a defendant in a divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. The legislature, in sound consideration of public policy, saw fit to change the rule. Pollard v. Pollard, 204 Va. 316 , 130 S.E.2d 425, 1963 Va. LEXIS 150 (1963).

Now insanity after start of desertion does not bar divorce therefor. —

In clear and unambiguous language this section provides that insanity occurring between the commencement of desertion and the running of the statutory period is not a bar to divorce for willful desertion or abandonment. Pollard v. Pollard, 204 Va. 316 , 130 S.E.2d 425, 1963 Va. LEXIS 150 (1963).

§ 20-94. Effect of cohabitation after knowledge of adultery, sodomy or buggery; lapse of five years.

When the suit is for divorce for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act.

History. Code 1919, § 5110; 1975, c. 644.

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).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 25, 27, 34.

CASE NOTES

“Voluntarily cohabited,” as used in this section, should not be restricted to its literal meaning of having dwelled together under the same roof with more or less permanency. Tarr v. Tarr, 184 Va. 443 , 35 S.E.2d 401, 1945 Va. LEXIS 163 (1945), limited, Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Condonation is conditional forgiveness. Knowledge is necessary. One cannot condone what one does not know. Moreover, it is essential that there be no repetition of the offense. Repetition revives the right to complain of an injury forgiven. Elder v. Elder, 139 Va. 19 , 123 S.E. 369 , 1924 Va. LEXIS 81 (1924); Martin v. Martin, 166 Va. 109 , 184 S.E. 220 , 1936 Va. LEXIS 170 (1936); McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

And operates as to known offense only. —

Where a defendant is guilty of several matrimonial offenses, and the plaintiff, when he forgives the defendant, knows of one of them but not of the others, the condonation operates as to the known offense; but because of the lack of knowledge the forgiveness does not bar an action based on the others. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

Voluntary cohabitation after knowledge of the spouse’s misconduct amounts to condonation. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

And it bars a divorce to the condoning party. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

On its own motion, the court may and should deny a divorce where it appears from the record that the injured party has condoned the acts complained of. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

A single voluntary act of sexual intercourse by the innocent spouse after knowledge of the offense is sufficient to constitute condonation. Tarr v. Tarr, 184 Va. 443 , 35 S.E.2d 401, 1945 Va. LEXIS 163 (1945), limited, Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Ordinarily condonation is a matter of affirmative defense which must be specially pleaded and proven, but where a fraud has been perpetrated on the court in obtaining a divorce decree, a subsequent suit attacking the decree is not barred. Tarr v. Tarr, 184 Va. 443 , 35 S.E.2d 401, 1945 Va. LEXIS 163 (1945), limited, Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986).

Condonation should be pleaded as an affirmative defense in the wife’s answer. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

Revival of condoned adultery. —

Condoned adultery is revived where the guilty party has resumed his association with his former paramour, even without strict proof of an actual repetition of the offense. McKee v. McKee, 206 Va. 527 , 145 S.E.2d 163, 1965 Va. LEXIS 229 (1965).

Husband held to have condoned wife’s adultery. —

See Huddle v. Huddle, 206 Va. 535 , 145 S.E.2d 167, 1965 Va. LEXIS 230 (1965).

Adultery within the five years not shown. —

Adultery by wife within five-year actionable time frame was not shown where her and her adulterous partner’s admissions were of adultery before the time frame, she denied subsequent adultery, the partner took the Fifth Amendment when asked about subsequent adultery, and his initial denial of any adultery — which was a prior inconsistent statement — went only to his credibility and not proof on the issue. Fickett v. Fickett, 2002 Va. App. LEXIS 120 (Va. Ct. App. Feb. 26, 2002).

CIRCUIT COURT OPINIONS

Adultery within five years. —

Because the evidence established that the wife had intercourse with two other men while married to the husband within five years of the institution of the divorce action, the husband was granted a divorce on the ground of adultery. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

§ 20-95. Grounds for divorces from bed and board.

A divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.

History. Code 1919, § 5104; 1975, c. 644.

Law Review.

For article, “Cruelty as a Ground for Divorce a Mensa et Thoro in Virginia,” see 43 Va. L. Rev. 125 (1957).

For note on cruelty and constructive desertion, see 45 Va. L. Rev. 1432 (1959).

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

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 survey of Virginia law on domestic relations for the year 1978-1979, see 66 Va. L. Rev. 281 (1980).

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

For article, “Is a Professional Degree Marital Property Under Virginia’s Marriage Dissolution Statutes?,” see 7 G.M.U. L. Rev. 47 (1984).

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).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 4, 13, 14, 17, 23, 50, 60.

CASE NOTES

Analysis

I. Abandonment and Desertion.
II. Cruelty and Reasonable Apprehension of Bodily Hurt.
III. Pleading and Proof.

I.Abandonment and Desertion.

What constitutes abandonment and desertion. —

Abandonment and desertion which entitles a husband or wife to a divorce a mensa et thoro is composed: first, of the actual breaking off of the matrimonial cohabitation, and second, of an intent to desert in the mind of the offender. Both must combine to make the desertion complete. The intent to desert is usually the principal thing to be considered. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878); Smith v. Smith, 202 Va. 104 , 116 S.E.2d 110 (1960)).

In the absence of justification, proof of an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, entitles the party deserted to a divorce. Graham v. Graham, 210 Va. 608 , 172 S.E.2d 724, 1970 Va. LEXIS 170 (1970).

In the context of both § 20-91 A (6) and this section 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).

Conduct justifying desertion must be sufficient to establish grounds for divorce. —

One spouse is not justified in leaving the other unless the conduct of the other is sufficient to establish the foundation of a judicial proceeding for divorce. Stolfi v. Stolfi, 203 Va. 696 , 126 S.E.2d 923, 1962 Va. LEXIS 208 (1962).

The desertion must be alleged and proved to have occurred prior to the bringing of the suit, and cannot be based upon some act or conduct alleged to have taken place during its pendency. Smith v. Smith, 202 Va. 104 , 116 S.E.2d 110, 1960 Va. LEXIS 196 (1960); Beckner v. Beckner, 204 Va. 580 , 132 S.E.2d 715, 1963 Va. LEXIS 188 (1963).

Cruelty tantamount to desertion. —

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. Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920).

No definite period of desertion is required by this section to sustain a suit for divorce a mensa et thoro. Any desertion which fulfills the requirements of the definition given above is sufficient to sustain the suit, no matter if the parties have cohabited as man and wife for a short period since the first desertion by the defendant. 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); Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890).

Since the statute fixes no period for which the desertion must have continued to entitle a party to a divorce a mensa et thoro, the question is to be determined by the court according to the facts and circumstances of each case. 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).

Under this section, unlike subdivision A (6) of § 20-91 , 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).

Desertion presumed to continue. —

A separation by mutual consent will be presumed to continue by mutual consent until one of the parties withdraws consent and offers to resume cohabitation, in which case the burden is on the offering party to prove that the offer was made in good faith and was refused without justification. Smith v. Smith, 202 Va. 104 , 116 S.E.2d 110, 1960 Va. LEXIS 196 (1960).

When a husband went into the armed service he did not desert his wife. Moltz v. Moltz, 182 Va. 737 , 30 S.E.2d 561, 1944 Va. LEXIS 227 (1944).

In order to be free from legal fault in breaking off matrimonial cohabitation, a party does not have to establish constructive desertion by the other spouse. D'Auria v. D'Auria, 1 Va. App. 455, 340 S.E.2d 164, 1986 Va. App. LEXIS 223 (1986).

Failure to voice objection does not show separation by mutual consent. —

It was error to deny a husband a divorce on the ground that the evidence showed separation by mutual consent, where there was direct proof of the wife’s act of leaving and of her accompanying intention to desert her husband. That he voiced no objection to her going was immaterial, for it was her conduct and purpose and not his state of mind that determined whether there was desertion. Miller v. Miller, 196 Va. 698 , 85 S.E.2d 221, 1955 Va. LEXIS 141 (1955).

Ending desertion. —

Single act of intercourse did not show intent to end desertion. —

The burden of going forward with evidence of justification or showing that leaving was for a reason other than the intent to desert rests on the party who claims his or her leaving was without an intent to desert. D'Auria v. D'Auria, 1 Va. App. 455, 340 S.E.2d 164, 1986 Va. App. LEXIS 223 (1986).

Evidence held sufficient to sustain divorce a mensa on ground of desertion. Good v. Good, 122 Va. 30 , 94 S.E. 176 , 1917 Va. LEXIS 80 (1917); Bowman v. Bowman, 180 Va. 200 , 22 S.E.2d 29, 1942 Va. LEXIS 158 (1942); Nash v. Nash, 200 Va. 890 , 108 S.E.2d 350, 1959 Va. LEXIS 182 (1959); Beckner v. Beckner, 204 Va. 580 , 132 S.E.2d 715, 1963 Va. LEXIS 188 (1963).

Circuit court erred in sustaining a wife’s demurrer to a husband’s complaint for divorce on the grounds of desertion because the complaint sufficiently showed that the wife left with the intent to desert by alleging wife was unhappy in the marriage, that she left the home on two prior occasions, and that she finally left “for good” taking the parties’ child with her, and the husband did not have to allege that he did not consent to the wife’s leaving. Hill v. Thomas, 2018 Va. App. LEXIS 102 (Va. Ct. App. Apr. 17, 2018).

Evidence held to show constructive desertion. Fussell v. Fussell, 182 Va. 720 , 30 S.E.2d 555, 1944 Va. LEXIS 225 (1944).

Evidence held insufficient to show desertion. 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); Moltz v. Moltz, 182 Va. 737 , 30 S.E.2d 561, 1944 Va. LEXIS 227 (1944); Coxe v. Coxe, 182 Va. 754 , 30 S.E.2d 572, 1944 Va. LEXIS 230 (1944); Montgomery v. Montgomery, 183 Va. 96 , 31 S.E.2d 284, 1944 Va. LEXIS 134 (1944); Smith v. Smith, 202 Va. 104 , 116 S.E.2d 110, 1960 Va. LEXIS 196 (1960).

Wife’s claim of constructive desertion dissipated without evidence of cruelty, as the wife did not plead facts sufficient to support a claim of cruelty, and accordingly, the wife could not argue constructive desertion based on the husband’s cruelty towards the wife. Williams v. Williams, 2003 Va. App. LEXIS 541 (Va. Ct. App. Oct. 28, 2003).

II.Cruelty and Reasonable Apprehension of Bodily Hurt.

Cruelty and reasonable apprehension of bodily hurt are closely related. —

While this section provides that “a divorce from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, abandonment or desertion,” in reality, there are only two grounds for divorce a mensa et thoro — desertion and cruelty, because cruelty and reasonable apprehension of bodily hurt are so closely related in the matter of proof and effect. Haskins v. Haskins, 185 Va. 1001 , 41 S.E.2d 25, 1947 Va. LEXIS 238 (1947).

Cruel and inhuman treatment and apprehension of bodily injury, two of the statutory grounds of divorce, are so closely related that the same state of facts might establish either or both. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878).

The words “bodily hurt” as here used are not restricted to a physical assault upon the body, but include any course of conduct which leads to serious nervous or mental disease. Humphreys v. Humphreys, 139 Va. 146 , 123 S.E. 554 , 1924 Va. LEXIS 92 (1924).

The cruelty that authorizes a divorce is anything that tends to bodily harm, and thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health; and angry words, coarse and abusive language, humiliating insults and annoyances in all the forms that malice can suggest, may as effectively endanger life or health as personal violence, and will, therefore, afford ground for relief by the court. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887); Trimble v. Trimble, 97 Va. 217 , 33 S.E. 531 , 1899 Va. LEXIS 29 (1899) (see also Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Kinsey v. Kinsey, 90 Va. 16 , 17 S.E. 819 (1893); Twohy v. Twohy, 130 Va. 557 , 107 S.E. 642 (1921); Miller v. Miller, 140 Va. 424 , 125 S.E. 220 (1924); Williams v. Williams, 152 Va. 896 , 148 S.E. 579 (1929); Prindes v. Prindes, 193 Va. 463 , 69 S.E.2d 332 (1952); Upchurch v. Upchurch, 194 Va. 990 , 76 S.E.2d 170 (1953); DeMott v. DeMott, 198 Va. 22 , 92 S.E.2d 342 (1956); Sollie v. Sollie, 202 Va. 855 , 120 S.E.2d 281 (1961)).

Cruelty consists of successive acts of ill treatment, if not of personal injury; so that something of a condonation of earlier ill treatment must, in such cases, necessarily take place. It is cumulative, admitting of degrees and augmenting by addition. It may be condoned and even forgiven for a time and up to a certain point without barring the right to bring it all forward when the continuance has rendered it no longer condonable. Owens v. Owens, 96 Va. 191 , 31 S.E. 72 , 1898 Va. LEXIS 78 (1898); Sollie v. Sollie, 202 Va. 855 , 120 S.E.2d 281, 1961 Va. LEXIS 189 (1961).

And there may be angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, which may as effectually endanger life and health as personal violence, and which would therefore afford grounds for relief by the court. Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887) (see also Twohy v. Twohy, 130 Va. 557 , 107 S.E. 642 (1921)).

Cruelty is cumulative, and while acts of violence committed at an earlier period, and which have not prevented the wife from living with her husband, or going back to him after they have been separated, cannot be made the sole foundation of an action for separation, they form the subject of investigation and proof with a view to determine what is the true issue in the case, namely, whether the wife can with safety to her person and health continue to live with him. Bennett v. Bennett, 179 Va. 239 , 18 S.E.2d 911, 1942 Va. LEXIS 215 (1942).

Single act of cruelty held sufficient. —

The husband’s shooting of the wife was reprehensible and unwarranted and so severe and atrocious that it endangered her life and caused her to sustain serious and permanent injuries and this single act of physical violence constituted cruelty for which a bed and board decree could be entered under this section. Davis v. Davis, 8 Va. App. 12, 377 S.E.2d 640, 5 Va. Law Rep. 2084, 1989 Va. App. LEXIS 20 (1989).

Violence and apprehension of bodily hurt are not indispensable ingredients of cruelty. Mental anguish, repeated and unrelenting neglect and humiliation, may be as bad as physical wounds and bruises, and may be visited upon an unoffending spouse in such degree as to amount to cruelty even in the very strict sense in which that term ought always to be used in the law of divorce. Ringgold v. Ringgold, 128 Va. 485 , 104 S.E. 836 , 1920 Va. LEXIS 118 (1920); Twohy v. Twohy, 130 Va. 557 , 107 S.E. 642 , 1921 Va. LEXIS 175 (1921) (see also Bennett v. Bennett, 179 Va. 239 , 18 S.E.2d 911 (1942)).

A long series of vexations, culminating in a charge of larceny, and a serious assault by a person of greatly superior physical force, is cruelty within the meaning of the law. Hutchins v. Hutchins, 93 Va. 68 , 24 S.E. 903 , 1896 Va. LEXIS 52 (1896).

A malicious charge of adultery made by one consort against the other, standing absolutely alone, is not sufficient to justify a divorce, but, when presented with other facts enhancing its enormity, is an act of gross cruelty. Owens v. Owens, 96 Va. 191 , 31 S.E. 72 , 1898 Va. LEXIS 78 (1898).

Profane, abusive, or harsh language will not ordinarily constitute cruelty. —

Frequent indulgence in such language will not constitute cruelty where such conduct does not create an apprehension of bodily harm. Such conduct may be sufficient, however, where it produces mental suffering sufficient to injure health. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887); Kinsey v. Kinsey, 90 Va. 16 , 17 S.E. 819 , 1893 Va. LEXIS 3 (1893).

Cruelty by members of husband’s family. —

If the husband permit the inmates of his house to treat his wife with cruelty, the cruelty is his and she may leave his home without furnishing him with cause for divorce. Hutchins v. Hutchins, 93 Va. 68 , 24 S.E. 903 , 1896 Va. LEXIS 52 (1896).

Violence amounting to cruelty. —

See Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887); Kinsey v. Kinsey, 90 Va. 16 , 17 S.E. 819 , 1893 Va. LEXIS 3 (1893); Heninger v. Heninger, 90 Va. 271 , 18 S.E. 193 , 1893 Va. LEXIS 45 (1893); Trimble v. Trimble, 97 Va. 217 , 33 S.E. 531 , 1899 Va. LEXIS 29 (1899); Wimbrow v. Wimbrow, 208 Va. 141 , 156 S.E.2d 598, 1967 Va. LEXIS 196 (1967).

Mere financial difficulties arising from extravagance and lack of pecuniary responsibility do not amount to legal cruelty under established principles and do not constitute grounds for divorce. Upchurch v. Upchurch, 194 Va. 990 , 76 S.E.2d 170, 1953 Va. LEXIS 168 (1953).

Mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, do not amount to legal cruelty. Beers v. Beers, 198 Va. 682 , 96 S.E.2d 139, 1957 Va. LEXIS 124 (1957).

A single act of physical cruelty does not constitute ground for divorce, unless it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future, or the precedent or attendant circumstances show that the acts are likely to be repeated. DeMott v. DeMott, 198 Va. 22 , 92 S.E.2d 342, 1956 Va. LEXIS 170 (1956).

One instance of physical cruelty is insufficient to establish a ground for divorce. Capps v. Capps, 216 Va. 382 , 219 S.E.2d 898, 1975 Va. LEXIS 300 (1975).

Evidence held sufficient to show cruelty. See Davenport v. Davenport, 106 Va. 736 , 56 S.E. 562 , 1907 Va. LEXIS 141 (1907); Bennett v. Bennett, 179 Va. 239 , 18 S.E.2d 911, 1942 Va. LEXIS 215 (1942); Fussell v. Fussell, 182 Va. 720 , 30 S.E.2d 555, 1944 Va. LEXIS 225 (1944).

Wife’s suit for divorce on grounds of cruelty held not frivolous and she was not guilty of desertion in leaving her husband while it was pending. Byrd v. Byrd, 232 Va. 115 , 348 S.E.2d 262, 3 Va. Law Rep. 573, 1986 Va. LEXIS 236 (1986).

Evidence held insufficient to show cruelty. Moltz v. Moltz, 182 Va. 737 , 30 S.E.2d 561, 1944 Va. LEXIS 227 (1944); Upchurch v. Upchurch, 194 Va. 990 , 76 S.E.2d 170, 1953 Va. LEXIS 168 (1953); Stolfi v. Stolfi, 203 Va. 696 , 126 S.E.2d 923, 1962 Va. LEXIS 208 (1962).

III.Pleading and Proof.

In general. —

Where a divorce is sought on the grounds of cruelty or reasonable apprehension of bodily hurt, charges must be clearly proved. The witnesses should state the facts, and not their opinions, and let the court determine the issues. Prindes v. Prindes, 193 Va. 463 , 69 S.E.2d 332, 1952 Va. LEXIS 155 (1952).

A husband, as well as a wife, may maintain a suit for divorce on the ground of cruelty, or reasonable apprehension of bodily harm, but in either case the charge should be clearly proved. House v. House, 102 Va. 235 , 46 S.E. 299 , 1904 Va. LEXIS 60 (1904).

Facts, not conclusions, as to cruelty should be pleaded with reasonable certainty. —

In a suit for divorce on the grounds of cruelty, the facts constituting the cruelty, and not merely the pleader’s conclusions from unrevealed facts, should be charged with reasonable certainty. Haynor v. Haynor, 112 Va. 123 , 70 S.E. 531 , 1911 Va. LEXIS 60 (1911).

Standard of proof of desertion. —

Proof of desertion before and after suit filed for divorce. —

While a husband cannot be said to desert his wife because of separation from her pending a suit by him for divorce, if there was a consummated act of desertion by him before he instituted his suit, she may prove it in a suit by her for divorce for desertion. Craig v. Craig, 118 Va. 284 , 87 S.E. 727 , 1916 Va. LEXIS 8 (1916).

Sworn answer to bill for divorce furnishes evidence. —

When an answer under oath has not been waived, a sworn answer to a bill for divorce, which is responsive to the bill, furnishes evidence for the defendant as in other cases. Haynor v. Haynor, 112 Va. 123 , 70 S.E. 531 , 1911 Va. LEXIS 60 (1911).

Burden. —

When desertion is established, the duty of going forward with evidence of justification then rests on the party deserting unless justification appears from testimony adduced by the deserted party. Graham v. Graham, 210 Va. 608 , 172 S.E.2d 724, 1970 Va. LEXIS 170 (1970).

Husband seeking to avoid a separation agreement he signed did not show that he cohabited with the wife after signing the agreement, which would have rendered the agreement null and void, when he spent only 29 of the 70 days in the alleged reconciliation period with the wife and did not observe her precondition to a reconciliation that he terminate his relationship with his former wife, even though the husband and wife did have sexual relations during this period. Jacobsen v. Jacobsen, 41 Va. App. 582, 586 S.E.2d 896, 2003 Va. App. LEXIS 506 (2003).

Equal misconduct by both parties required divorce by one year’s separation only. —

CIRCUIT COURT OPINIONS

What constitutes desertion and abandonment. —

Historically, under Title 20 of the Virginia Code, the terms “desert” and “abandon” have been construed as synonymous. Royer v. Royer, 65 Va. Cir. 476, 2004 Va. Cir. LEXIS 280 (Richmond Sept. 16, 2004).

Sufficient evidence to prove adultery. —

Cruelty not proven. —

Husband had not proven his allegation of cruelty as, though the evidence showed that the wife’s emotional instability resulted at times in physical outbursts, the husband failed to show serious bodily harm as a result of the blows inflicted on him or that he suffered from emotional depression or mental anguish as a result of these encounters. McDonough v. McDonough, 2012 Va. Cir. LEXIS 17 (Fauquier County Jan. 31, 2012).

§ 20-96. Jurisdiction of suits for annulment, affirmance or divorce.

The circuit court shall have jurisdiction of suits for annulling or affirming marriage and for divorces, and claims for separate maintenance, and such suits shall be heard by the judge as equitable claims.

History. Code 1919, § 5105; 1922, p. 589; 1966, c. 449; 1975, c. 644; 1977, c. 624; 1979, c. 488; 1987, c. 171; 1989, c. 556; 2005, c. 681.

Cross references.

As to venue in suits for annulment, affirmance, or divorce, see subdivision 19 of § 8.01-261 .

Editor’s note.

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, deleted “on the chancery side” following “court” and inserted “and claims for separate maintenance, and such suits shall be heard by the judge as equitable claims.”

Law Review.

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 1987 survey of Virginia domestic relations law, see 21 U. Rich. L. Rev. 745 (1987).

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 survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

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

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

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 35, 36.

CASE NOTES

Jurisdiction is purely statutory. —

Power to grant divorces originally resided in the legislature, and neither courts of law nor equity have any inherent power to dissolve marriage, the power being purely statutory. Virginia Const., Art. IV, § 14, makes it mandatory upon the legislature to grant such power, which is given by this section. Richardson v. Richardson, 8 Va. L. Reg. 257 (1922); Blankenship v. Blankenship, 125 Va. 595 , 100 S.E. 538 , 1919 Va. LEXIS 48 (1919).

Jurisdiction in divorce suits is purely statutory and such jurisdiction of a court of equity does not inherently extend to the disposal of the personal property of the husband. Watkins v. Watkins, 220 Va. 1051 , 265 S.E.2d 750, 1980 Va. LEXIS 200 (1980).

Jurisdiction in divorce suits is purely statutory, and it cannot be acquired by the courts inferentially or through indirection. Johnson v. Johnson, 224 Va. 641 , 299 S.E.2d 351, 1983 Va. LEXIS 172 (1983).

The Virginia Constitution authorizes the General Assembly to confer upon the courts power to grant divorces. Therefore, the power to grant divorces in Virginia is purely statutory. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

Although a marriage may ultimately be declared void, that does not alter a trial court’s power, expressly conferred by statute, to enter certain orders during the pendency of the litigation; those orders are not rendered retroactively void, even if the marriage ultimately proves to be. 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).

And is over subject matter rather than person. —

A suit for divorce is in its essence and character very different from a transitory cause of action, over which any court of record has general jurisdiction; and the question really arising from the effect to be given our divorce statutes is rather one of jurisdiction over the subject matter than over the person. Richardson v. Richardson, 8 Va. L. Reg. 257 (1922).

This section adds to the authority of the named courts by conferring upon them jurisdiction of suits for divorce, a jurisdiction not inherent in such courts. Smith v. Smith, 200 Va. 77 , 104 S.E.2d 17, 1958 Va. LEXIS 161 (1958).

It does not take away any existing jurisdiction. —

There is no limitation in this section which restricts the court to decreeing only with respect to the rights of the parties created by the marital relation. It does not take away from courts any existing equity jurisdiction. Smith v. Smith, 200 Va. 77 , 104 S.E.2d 17, 1958 Va. LEXIS 161 (1958).

Court retained in rem jurisdiction over fund although husband died. —

Circuit court retained in rem jurisdiction over a fund specifically created by a valid order of that court: The order established the fund until further order of the court. It neither became a nullity, nor became void, nor was it vacated by operation of law, upon the husband’s death, which abated the litigation over the parties’ marital status. Instead, the circuit court, a court of general jurisdiction, retained power to dispose of the res, the escrow fund that it had created. Sprouse v. Griffin, 250 Va. 46 , 458 S.E.2d 770, 1995 Va. LEXIS 81 (1995).

Divorce suit a chancery case sui generis. —

The many limitations, both in respect to jurisdiction and procedure, placed upon divorce suits by the statute, differentiate the divorce case from ordinary suits in equity and render it a chancery case sui generis. McCotter v. Carle, 149 Va. 584 , 140 S.E. 670 , 1927 Va. LEXIS 197 (1927); Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

The circuit court, sitting as chancery court in divorce case, lacked jurisdiction to terminate father’s parental rights and, with that termination, father’s child support obligation. Church v. Church, 24 Va. App. 502, 483 S.E.2d 498, 1997 Va. App. LEXIS 210 (1997).

Jurisdiction to enter interlocutory orders. —

Interlocutory orders in divorce and annulment suits, including pendente lite support orders, preserve the status quo until the ultimate entry of the decree of divorce or annulment; an annulment decree in a spouse’s favor does not retroactively defeat the jurisdiction to enter interlocutory orders prior to the entry of the annulment decree. 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).

Trial court had subject matter jurisdiction. —

Trial court had subject matter jurisdiction over a 2004 divorce action as: (1) in a 1981 action, a wife alleged that she was and had been a resident and domiciliary of Buchanan County for more than six months preceding the commencement of the suit; (2) §§ 20-96 and 20-97 required that only one of the parties meet the residency and domiciliary requirements in order to establish jurisdiction; (3) the husband signed a 1981 order awarding pendente lite support and custody, and did not suggest in 1981 that he or the wife were not residents or domiciliaries of Virginia; (4) the husband moved to consolidate the 1981 and the 2004 cases; and (5) the husband never introduced evidence tending to refute the fact that jurisdiction was established in 1981. Kinser v. Kinser, 2007 Va. App. LEXIS 483 (Va. Ct. App. Dec. 27, 2007).

Trial court had subject matter jurisdiction over an annulment matter under §§ 20-96 and 20-97 because the pleadings and the exhibits established that the parties were domiciled in and residents of Virginia for the requisite time period; the former husband’s complaint for annulment stated the current Virginia address of each party and that both parties were domiciled in and bona fide residents of Virginia for the past six months, and, in her answer, the former wife admitted to the allegations regarding their residences and stated affirmatively in her counterclaim their current Virginia addresses and that she was domiciled in and a bona fide resident of Virginia for more than six months prior to the commencement of the suit, and also provided the Virginia address of where they last cohabited as husband and wife. Additionally, among other things, application for Virginia marriage license was introduced that established that both parties lived in Virginia in 2004 and a protective order issued in 2009 stated the parties’ address in Virginia. Naseer v. Moghal, 2012 Va. App. LEXIS 259 (Va. Ct. App. Aug. 14, 2012).

Trial court had jurisdiction to award pendente lite support because it had both subject matter and personal jurisdiction; the trial court had subject matter jurisdiction over the divorce and annulment suits, and it also had jurisdiction over the parties. 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).

Trial court did not err in awarding the wife $18,283 for her attorney’s fees and costs where the parties’ agreement did not contain language requiring the trial court to find the husband in contempt before it could enforce the terms of the agreement and the trial court found that the wife had to go to court to enforce the terms of the agreement. Ibrahimi v. Ibrahimi, 2016 Va. App. LEXIS 63 (Va. Ct. App. Mar. 1, 2016).

Trial court did not have subject matter jurisdiction. —

Circuit court was correct in concluding that it lacked subject matter jurisdiction to enter a final decree in the parties’ divorce action because the wife died after the hearing had concluded and the circuit court announced its ruling but before a decree on the merits had been entered by the circuit court, and therefore the wife’s death terminated the circuit court’s subject matter jurisdiction. Johnson v. Johnson, 72 Va. App. 771, 853 S.E.2d 550, 2021 Va. App. LEXIS 19 (2021).

Pleading allegations sufficient to provide in rem jurisdiction. —

Although the circuit court did not obtain personal jurisdiction over the husband in the divorce action, the allegations in the divorce pleadings sufficed to provide the trial court with in rem jurisdiction to dissolve the marriage. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Divorce petition brought by incarcerated complainant. —

Delaying a divorce petition brought by an incarcerated complainant until his release is inadvisable. Even where transportation of the incarcerated complainant is inappropriate, authorized alternatives are available. See opinion of Attorney General to The Honorable Mark S. Davis, Judge, Third Judicial Circuit Circuit Court of the City of Portsmouth, 05-055 (8/1/05).

§§ 20-96.1, 20-96.2. Repealed by Acts 1999, c. 161.

§ 20-97. Domicile and residential requirements for suits for annulment, affirmance, or divorce.

No suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties was at the time of the filing of the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of the Commonwealth, nor shall any suit for affirming a marriage be maintainable, unless one of the parties be domiciled in, and is and has been an actual bona fide resident of, the Commonwealth at the time of filing such suit.

For the purposes of this section only:

If a member of the Armed Forces of the United States has been stationed or resided in the Commonwealth and has lived for a period of six months or more in the Commonwealth next preceding the filing of the suit, then such person shall be presumed to be domiciled in and to have been a bona fide resident of the Commonwealth during such period of time.
Being stationed or residing in the Commonwealth includes, but is not limited to, a member of the armed forces being stationed or residing upon a ship having its home port in the Commonwealth or at an air, naval, or military base located within the Commonwealth over which the United States enjoys exclusive federal jurisdiction.
Any member of the Armed Forces of the United States or any civilian employee of the United States, including any foreign service officer, who (i) at the time the suit is filed is, or immediately preceding such suit was, stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six-month period immediately preceding his being stationed in such territory or country shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding the filing of a suit for annulment or divorce.
Upon separation of a married couple, either spouse may establish his own and separate domicile, though the separation may have been caused under such circumstances as would entitle such spouse to a divorce or annulment.

History. Code 1919, § 5105; 1922, p. 589; 1958, c. 169; 1968, c. 455; 1974, c. 278; 1978, c. 412; 1985, c. 304; 1987, c. 35; 1988, c. 448; 1991, c. 259; 2009, c. 582; 2015, c. 315; 2017, c. 480; 2020, c. 900.

Cross references.

As to venue in suits for annulment, affirmance, or divorce, see subdivision 19 of § 8.01-261 .

As to when personal jurisdiction over person may be exercised, see § 8.01-328.1 .

Editor’s note.

Clause 2 of Acts 1985, c. 304 provides that the provisions of the act shall not affect the validity of any divorce, annulment or affirmation decree rendered in the Commonwealth prior to July 1, 1985.

The 2009 amendments.

The 2009 amendment by c. 582, in subdivision 3, in the introductory language, inserted “or any foreign service officer of the United States” and in clause (i), inserted “or immediately preceding such suit was.”

The 2015 amendments.

The 2015 amendment by c. 315 in the first paragraph, substituted “was at the time of the filing of the suit and had been for at least six months preceding the filing of the suit an actual bona fide resident and domiciliary of this Commonwealth” for “is and has been an actual bona fide resident and domiciliary of this Commonwealth for at least six months preceding the commencement of the suit” and “filing” for “bringing”; substituted “filing” for “commencement” or variants in subdivisions 1 and 3; and substituted “six-month” for “six month” in subdivision 3.

The 2017 amendments.

The 2017 amendment by c. 480, in subdivision 3, substituted “civilian employee” for “foreign service officer” and inserted “including foreign service officer.”

The 2020 amendments.

The 2020 amendment by c. 900 substituted “the Commonwealth” for “this Commonwealth” wherever it appears in the introductory paragraph, in subdivision 1 and in subdivision 2 in the second and third instances; in subdivision 4, substituted “a married couple, either spouse may establish his” for “the husband and wife, the wife may establish her” and made stylistic changes.

Law Review.

For comment on the 1958 amendment to this section, see 44 Va. L. Rev. 1192 (1958).

For note on jurisdiction to dissolve the marital status, see 48 Va. L. Rev. 992 (1962).

For survey of the Virginia law on domestic relations for the year 1967-1968, see 54 Va. L. Rev. 1215 (1968).

For survey of Virginia law on domestic relations for the year 1973-1974, see 60 Va. L. Rev. 1529 (1974).

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

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

Michie’s Jurisprudence.

For related discussion, see 4A M.J. Conflict of Laws, Domicile and Residence, § 16.

CASE NOTES

Object of this section. —

The object of this section is to prevent the opening of the courts of the Commonwealth to mere residents, and to restrict them to litigants who have a more permanent identification with the State. But former § 20-98 (see now § 8.01-261 19) was manifestly a mere matter of venue, which had to be followed if the defendant objected to any other. Towson v. Towson, 126 Va. 640 , 102 S.E. 48 (1920). But see Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 (1922), where this statement as to venue is disapproved.

Domiciliary residence requirements are jurisdictional. —

When named, statutory requirements for domiciliary residence are jurisdictional in a suit for divorce. Howe v. Howe, 179 Va. 111 , 18 S.E.2d 294, 1942 Va. LEXIS 204 (1942).

Deposition to establish domiciliary residence requirements. —

In a divorce case, depositions of the wife and her mother that the wife was a lifelong resident of Virginia adequately established the jurisdictional requirement to show sufficient domicile and residence. Buka v. Smith, 2003 Va. App. LEXIS 129 (Va. Ct. App. Mar. 11, 2003).

Domicile and cohabitation are distinctly different concepts and should not be equated or confused. Domicile is not determined solely by the location where people reside, while cohabitation is. Cohabitation does not require an intent to remain somewhere indefinitely, while domicile does. Rock v. Rock, 7 Va. App. 198, 372 S.E.2d 211, 5 Va. Law Rep. 431, 1988 Va. App. LEXIS 104 (1988).

Domicile and residence distinguished. —

Where plaintiff exercises the option given him by § 20-98 (now repealed) of bringing a suit for divorce “in the . . . corporation of the plaintiff’s residence,” the fact that defendant was not a resident of the State of Virginia, being one of the conditions upon which such option is given by the statute, becomes jurisdictional. But “resident,” as thus used, is to be distinguished from “domiciled,” and though the domicile of defendant might be in Virginia, still if she occupied a separate place of abode in the City of Washington, she was not a resident of Virginia. Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 , 1922 Va. LEXIS 36 (1922).

The words “domiciled” and “resident,” are technical words, and, according to the usual rule of construction of statutes, are presumed to have been used in their technical sense. This is specially true where both words are used in the same section of a statute. Towson v. Towson, 126 Va. 640 , 102 S.E. 48 , 1920 Va. LEXIS 16 (1920).

A person’s place of abode, or habitation, as contradistinguished from the place of mere transient, or, under some circumstances, even daily presence, for business or pleasure, is the place of one’s residence within the meaning of the divorce statute, as it is of statutes of limitations, attachment statutes, and the like. One may be domiciled in one state and be a resident of another, within the meaning of such statutes. Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 , 1922 Va. LEXIS 36 (1922).

The terms “residence” and “domicile” are not synonymous as used in this section. Hiles v. Hiles, 164 Va. 131 , 178 S.E. 913 (1935). For other cases discussing the distinction between “residence” and “domicile,” see Long v. Ryan, 71 Va. (30 Gratt.) 718 (1878); Williams v. Commonwealth, 116 Va. 272 , 81 S.E. 61 (1914); Cooper v. Commonwealth, 121 Va. 338 , 93 S.E. 680 (1917). For a case in which the court refused to entertain a suit for divorce because neither of the parties was domiciled in Virginia, see Yates v. Yates, 115 Va. 678 , 79 S.E. 1040 , 1913 Va. LEXIS 82 (1913).

Residence, or domicile, as used in statutes dealing in divorce, contemplates intention to live in the adopted home permanently or certainly for an indefinite period. Abiding in one place for a definite time, until the accomplishment of a certain purpose, unaccompanied by any intention to remain permanently or indefinitely, is not sufficient to give a person a statutory residence. Howe v. Howe, 179 Va. 111 , 18 S.E.2d 294, 1942 Va. LEXIS 204 (1942).

The fact that wife moved to Virginia in order to obtain a divorce and moved back to the District of Columbia after obtaining said divorce would not invalidate the decree if she had at one time during her residence in Virginia the intention to remain for an indefinite period. Goodloe v. Hawk, 113 F.2d 753, 1940 U.S. App. LEXIS 3449 (D.C. Cir. 1940), limited, Oliver v. Oliver, 185 F.2d 429, 87 U.S. App. D.C. 334, 1950 U.S. App. LEXIS 3301 (D.C. Cir. 1950).

One may be domiciled in one state and be a resident of another within the meaning of this section. Hiles v. Hiles, 164 Va. 131 , 178 S.E. 913 , 1935 Va. LEXIS 187 (1935).

Meaning of bona fide resident. —

Within the purview of this section, to have been an “actual bona fide resident of this State” for one year (now six months) preceding the institution of a suit for divorce, means to have had in this State throughout that period an actual bona fide permanent abode, as contradistinguished from a sojourn, or transitory abode, in this State or elsewhere. The plaintiff need not have been physically present in Virginia every day during that period; but it is essential that, during such part of that year as he was absent from Virginia, he has actually maintained in good faith at least a locality somewhere in Virginia as his permanent abode. Hiles v. Hiles, 164 Va. 131 , 178 S.E. 913 , 1935 Va. LEXIS 187 (1935).

If a person, who has theretofore in good faith established and is then maintaining a permanent abode in the State, goes from the State, and while absent therefrom continuously in good faith maintains that, or some other place or locality in the State, as and for his permanent abode, the establishment of a sojourn, or transitory abode, outside the State will not (so long as his physical residence elsewhere is essentially transitory or a sojourning) put an end to his being an “actual bona fide resident of this State” within the meaning of this section. This is true even though his absence from the State be of long duration. Hiles v. Hiles, 164 Va. 131 , 178 S.E. 913 , 1935 Va. LEXIS 187 (1935).

To have been an actual bona fide resident of the state means to have had in the state throughout that period an actual bona fide permanent abode, as distinguished from a sojourn, or transitory abode. Adoteye v. Adoteye, 32 Va. App. 221, 527 S.E.2d 453, 2000 Va. App. LEXIS 283 (2000).

For a person to establish the continued maintenance of a place or locality within Virginia as his permanent abode, something more is necessary than the mere intention ultimately to remain in and physically reside in Virginia, with no intention of establishing a permanent residence elsewhere; there must be some evidence of concurring acts or forbearances to act which tend to show the actual continued maintenance in good faith of some place or locality in Virginia as and for his permanent abode. Adoteye v. Adoteye, 32 Va. App. 221, 527 S.E.2d 453, 2000 Va. App. LEXIS 283 (2000).

Compliance with bona fide resident provision is essential to suit. —

Compliance with the provision of this section that one of the parties “is and has been an actual bona fide resident of this State for at least one year (now six months) preceding the commencement of the suit for divorce” is essential to the maintenance of the suit and must be established by evidence introduced in the cause, or the suit should be dismissed. Hiles v. Hiles, 164 Va. 131 , 178 S.E. 913 , 1935 Va. LEXIS 187 (1935).

The defense of the absence of the jurisdictional fact that one of the parties has been domiciled in the State for a year (now six months) preceding the commencement of the suit is not a matter of abatement of the suit, but is in its nature a bar to the suit. Such defense need not be pleaded in abatement, and may be pleaded in bar; and even if not pleaded in bar, the court may and should, for the reason of the public policy, dismiss the suit at the hearing of the cause on the merits, unless the existence of such fact affirmatively appears from the proof in the record. Blankenship v. Blankenship, 125 Va. 595 , 100 S.E. 538 , 1919 Va. LEXIS 48 (1919).

Abandoned wife changing domicile in good faith may bring suit. —

Where a husband abandons his wife in the state of their domicile, and the wife in good faith changes her domicile to this State, and retains it for more than one year (now six months), she may sue for a divorce in the county or city of her domicile, although the husband has never changed his domicile. Steckel v. Steckel, 118 Va. 198 , 86 S.E. 833 , 1915 Va. LEXIS 141 (1915).

Marked differences between suits for divorce and other suits in equity are shown by this section and § 20-99 . Westfall v. Westfall, 196 Va. 97 , 82 S.E.2d 487, 1954 Va. LEXIS 205 (1954).

Pleading allegations sufficient to provide in rem jurisdiction. —

Domicile established for military wife. —

Where wife previously established Virginia as her domicile and left Virginia only as a temporary sojourn to accompany her husband to his next military duty station, and, upon learning of his continuing infidelity, returned to her domicile, there was no error in the trial court’s finding that the wife satisfied both the domiciliary and residency requirements for filing a divorce action in Virginia; the wife could establish a domicile separate from that of her husband. Blackson v. Blackson, 40 Va. App. 507, 579 S.E.2d 704, 2003 Va. App. LEXIS 290 (2003).

Jurisdiction found for military husband. —

Trial court had subject matter jurisdiction to adjudicate the divorce action where the husband was member of armed services and had been stationed or resided in Virginia for a period of six months or more prior to the commencement of the instant action. Behnke v. Behnke, 2003 Va. App. LEXIS 547 (Va. Ct. App. Oct. 28, 2003).

Jurisdiction found. —

Where the evidence supported the conclusion that a wife was a domiciliary of Virginia during the six months preceding the filing of her divorce complaint, the trial court correctly concluded that it had jurisdiction to adjudicate the divorce case. Jones v. Jones, 2003 Va. App. LEXIS 140 (Va. Ct. App. Mar. 18, 2003).

Circuit court had jurisdiction over the divorce where the retention of the former marital residence, paying taxes in Virginia, and retention of Virginia drivers’ license supported the conclusion that they were bona fide residents and domiciliaries of Virginia for at least six months preceding the filing of the complaint. Pourbabai v. Pourbabai, 2018 Va. App. LEXIS 233 (Va. Ct. App. Aug. 21, 2018).

CIRCUIT COURT OPINIONS

Lack of residency. —

Dismissal of a divorce complaint due to a husband’s lack of Virginia residency was proper based on the husband’s sworn statements to a court in India that he was a resident of India, designed to specifically invoke the jurisdiction and power of that court, particularly when paired with the husband’s extended physical presence in India. Verma v. Verma, 72 Va. Cir. 66, 2006 Va. Cir. LEXIS 177 (Fairfax County Aug. 30, 2006).

Demurrer overruled. —

Husband’s demurrer to a wife’s bill of complaint seeking a divorce was overruled as it was possible that the wife remained a Virginia resident and domiciliary since 2001 and lived in the marital home in Florida, and elsewhere, as mere transitory abodes. Fitzpatrick v. Fitzpatrick, 71 Va. Cir. 219, 2006 Va. Cir. LEXIS 114 (Fairfax County June 28, 2006).

§ 20-98. Repealed by Acts 1977, c. 624.

Cross references.

As to present provisions relating to venue in suits for annulment, affirmance, or divorce, see subdivision 19 of § 8.01-261 .

§ 20-99. How such suits instituted and conducted; costs.

Such suit shall be instituted and conducted as other suits in equity, except as otherwise provided in this section:

Except for a divorce granted on the grounds set forth in subdivision A (9) of § 20-91 , no divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them.
Whether the defendant answers or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise.
Process or notice in such proceedings shall be served in the Commonwealth by any of the methods prescribed in § 8.01-296 by any person authorized to serve process under § 8.01-293 . Service may be made on a nonresident by any of the methods prescribed in § 8.01-296 by any person authorized to serve process under § 8.01-320 .
In cases where such suits have been commenced and an appearance has been made on behalf of the defendant by counsel, then notices to take depositions and of hearings, motions, and other proceedings except contempt proceedings, may be served by delivering or mailing a copy to counsel for opposing party, the foot of such notices bearing either acceptance of service or a certificate of counsel in compliance with the Rules of Supreme Court of Virginia. “Counsel for opposing party” shall include a pro se party who (i) has entered a general appearance in person or by filing a pleading or endorsing an order of withdrawal of that party’s counsel or (ii) has signed a pleading in the case or who has notified the other parties and the clerk that he appears in the case.
In cases where such suits have been commenced, the defendant has been served pursuant to the provisions of subdivision 1 of § 8.01-296 , and the defendant has failed to file an answer to the suit or otherwise appear within the time allowed by law, no further notice to take depositions or conduct an ore tenus hearing is required to be served on the defendant and the court may enter any order or final decree without further notice to the defendant.
Costs may be awarded to either party as equity and justice may require.

History. Code 1919, § 5106; 1920, p. 503; 1928, p. 535; 1938, p. 202; 1968, c. 484; 1975, c. 644; 1977, c. 60; 1984, cc. 609, 616; 1987, c. 594; 1991, c. 244; 1992, c. 563; 2012, cc. 78, 84; 2013, cc. 81, 100; 2021, Sp. Sess. I, c. 194.

Cross references.

As to service by publication, see § 8.01-316 et seq.

As to competency of husband and wife to testify, see § 8.01-398 .

For rules of procedure in civil actions, generally, see Va. Sup. Ct. Rule 3:1 et seq.

Editor’s note.

Acts 1984, c. 609, cl. 2 and c. 616, cl. 2, provide: “That any annulment of a marriage or divorce granted prior to the effective date of this act which was commenced by service of process by any method of substituted service authorized by this act is hereby validated.”

The 2012 amendments.

The 2012 amendments by cc. 78 and 84 are identical, and deleted “the” preceding “Supreme Court of Virginia” in the first sentence of subdivision 4; added present subdivision 5; redesignated former subdivision 5 as subdivision 6 and made a minor stylistic change.

The 2013 amendments.

The 2013 amendments by cc. 81 and 100 are identical, and inserted “or conduct an ore tenus hearing” near the end of subdivision 5, and made a minor stylistic change.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 194, effective July 1, 2021, inserted “Except for a divorce granted on the grounds set forth in subdivision A (9) of § 20-91 ” at the beginning of subdivision 1 and made stylistic changes.

Law Review.

For comment on divorce on ground of separation, see 18 Wash. & Lee L. Rev. 157 (1961).

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 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 survey of Virginia law on evidence for the year 1974-1975, see 61 Va. L. Rev. 1752 (1975).

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

For article, “The Role of Fault in Virginia Divorce Proceedings,” see 20 U. Rich. L. Rev. 295 (1986).

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

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

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 11, 16, 23.4, 31, 32, 33, 34, 37, 39, 44, 82, 123.1.

CASE NOTES

Analysis

I. General Consideration.
II. Corroboration.
III. Sufficient Evidence.
IV. Admissions of Parties.
V. Practice and Procedure.
VI. Costs.

I.General Consideration.

Object of statute. —

This section was merely intended to prevent decrees for divorce upon the collusion of the parties, or upon the consent or default of the party charged. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Dinsmore v. Dinsmore, 128 Va. 403 , 104 S.E. 785 (1920); Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888 (1952)).

Although a circuit court must find authority for divorce in a statute, the statute represents the General Assembly’s authorization for circuit courts to fill statutory gaps when conducting a divorce suit. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Differences between suits for divorce and other suits in equity. —

This section and § 20-97 show that there are marked differences between suits for divorce and other suits in equity. Among these differences are that the bill shall not be taken for confessed or a divorce granted on the uncorroborated testimony of the parties or either of them, and that, whether the defendant answers or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise. Westfall v. Westfall, 196 Va. 97 , 82 S.E.2d 487, 1954 Va. LEXIS 205 (1954).

Procedure in divorce suits same as other suits in equity. —

The process, practice and procedure is the same in suits for divorce as in other proceedings in equity. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871); Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Hampton v. Hampton, 87 Va. 148 , 12 S.E. 340 , 1890 Va. LEXIS 104 (1890).

In a divorce proceeding commenced by the wife, service of the bill of complaint upon the husband’s supervisor was not one of the prescribed methods for serving the bill of complaint; accordingly, the service was invalid and was insufficient to subject the husband to the trial court’s jurisdiction. Lee v. Lee, 2002 Va. App. LEXIS 516 (Va. Ct. App. Aug. 20, 2002).

Except bill in divorce suit shall not be taken for confessed. —

In suits for divorce the pleadings and rules of evidence are the same as in other suits in equity, except that the bill shall not be taken for confessed, and whether answered or not shall be heard independently of admissions of either party, and its charges proved by full and clear testimony. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 , 1890 Va. LEXIS 43 (1890); Hampton v. Hampton, 87 Va. 148 , 12 S.E. 340 , 1890 Va. LEXIS 104 (1890).

Jurisdiction of parties gives court jurisdiction of subject matter. —

While the requirement that service be by an officer in divorce proceedings may be mandatory and the procedure prescribed a jurisdictional prerequisite, yet circuit courts are given general jurisdiction to hear and determine divorce suits where the parties are brought into court. Where the court has jurisdiction of the parties, it has jurisdiction of the subject matter of the litigation. Scott v. Scott, 142 Va. 31 , 128 S.E. 599 , 1925 Va. LEXIS 317 (1925) (decided prior to 1984 amendment).

Submission to jurisdiction. —

Pursuant to subdivision 4 of § 20-99 , the defendant, by submitting an answer, through the plaintiff, to the court, submitted to the jurisdiction of the court. Zedan v. Westheim, 60 Va. App. 556, 729 S.E.2d 785, 2012 Va. App. LEXIS 257 (2012).

Trial court’s obligations in domestic matter when conservator was appointed, etc. —

Upon notification that a husband had died, it was incumbent upon the court to abate the action, transfer the funds in the possession of the conservator to husband’s personal representative, in accordance with § 64.1-57.1, and determine the reasonable amount of the conservator’s fee for which husband was responsible. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426, 2004 Va. App. LEXIS 454 (2004).

II.Corroboration.

The purpose of requiring corroboration of the testimony of a party to a divorce suit is to prevent divorces by collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight. Forbes v. Forbes, 182 Va. 636 , 29 S.E.2d 829, 1944 Va. LEXIS 213 (1944); Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952); Martin v. Martin, 202 Va. 769 , 120 S.E.2d 471, 1961 Va. LEXIS 177 (1961); Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

The main object of the provision of the statute requiring corroboration is to prevent collusion. Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

Corroboration rests in the facts and circumstances of each case. Only those facts necessary to the judgment must be supported. Martin v. Martin, 166 Va. 109 , 184 S.E. 220 , 1936 Va. LEXIS 170 (1936); Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952); Baytop v. Baytop, 199 Va. 388 , 100 S.E.2d 14, 1957 Va. LEXIS 202 (1957).

The question of corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of that particular case. Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952).

Corroboration need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

Corroboration rests in the facts and circumstances of each case. Only those facts necessary to the judgment must be supported. Confirmation is not necessary for that removes all doubt, while corroboration only gives more strength than was had before. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

And it need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established. Martin v. Martin, 166 Va. 109 , 184 S.E. 220 , 1936 Va. LEXIS 170 (1936); Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952).

Where it is apparent that there is no collusion, the corroboration needs to be only slight. Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

Cruelty must be established by corroborated evidence. —

Sufficiency of corroboration. —

The evidence showed that the husband drank to excess, was addicted to gambling, frequently stayed out all night, and was absent from the home for days at a time without communicating with the wife or telling her of his whereabouts. The wife’s testimony was to the effect that on one occasion he choked her, on another he struck her, and at times cursed her with vile epithets. Her testimony as to one of the latter incidents was corroborated by that of her brother, and there was also corroboration by both of her parents. It was held that there had been corroboration in all essential matters both by the testimony of the wife’s parents as well as by the facts and circumstances of the case. Forbes v. Forbes, 182 Va. 636 , 29 S.E.2d 829, 1944 Va. LEXIS 213 (1944).

The general rule is that where a particular fact or circumstance is vital to complainant’s case, some evidence of the same, in addition to the complainant’s own testimony, is essential. Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952).

Husband’s testimony in suit for divorce held sufficiently corroborated. Graves v. Graves, 193 Va. 659 , 70 S.E.2d 339, 1952 Va. LEXIS 177 (1952).

There was sufficient corroboration of a wife’s evidence that she had been treated with such cruelty as detrimentally to affect her health and well-being and that she was justified in leaving her husband. Baytop v. Baytop, 199 Va. 388 , 100 S.E.2d 14, 1957 Va. LEXIS 202 (1957).

Instances of sufficient corroboration. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952); Martin v. Martin, 202 Va. 769 , 120 S.E.2d 471, 1961 Va. LEXIS 177 (1961); Sollie v. Sollie, 202 Va. 855 , 120 S.E.2d 281, 1961 Va. LEXIS 189 (1961).

Testimony of desertion and cruelty held not sufficiently corroborated. Beckner v. Beckner, 204 Va. 580 , 132 S.E.2d 715, 1963 Va. LEXIS 188 (1963).

Testimony held not to constitute sufficient corroboration. Canavos v. Canavos, 200 Va. 861 , 108 S.E.2d 359, 1959 Va. LEXIS 179 (1959); Graham v. Graham, 210 Va. 608 , 172 S.E.2d 724, 1970 Va. LEXIS 170 (1970).

Corroboration of husband’s testimony of alleged cruel conduct of his wife, provided by her testimony or admissions, was not sufficient. Aichner v. Aichner, 215 Va. 624 , 212 S.E.2d 278, 1975 Va. LEXIS 200 (1975).

The testimony of the wife’s sister concerning the occurrences on the evening when the parties separated was sufficient to corroborate the act of desertion by the husband. Adams v. Adams, No. 0771-86-1 (Ct. of Appeals Sept. 30, 1987).

Where no collusion between husband and wife to obtain a divorce existed, wife’s admission of adultery was sufficiently corroborated by an entry in her diary, her testimony that she had sunbathed topless with a male guest in her home, husband’s testimony that he had found her arguing with that same houseguest while the guest was nude, and an independent witness’ testimony confirming the houseguest’s extended presence in the couple’s home. Pommerenke v. Pommerenke, 7 Va. App. 241, 372 S.E.2d 630, 5 Va. Law Rep. 708, 1988 Va. App. LEXIS 99 (1988).

Because there was no evidence in the record corroborating the allegations in husband’s bill of complaint requesting a divorce, the trial court properly denied the bill of complaint. Jackson v. Jackson, 2005 Va. App. LEXIS 211 (Va. Ct. App. May 31, 2005).

On the husband’s appeal from the parties’ final decree of divorce the circuit court did not err in awarding the wife a divorce a vinculo matrimonii and in denying the husband’s request for a divorce a mensa et thoro. A divorce could not be granted on the uncorroborated testimony of the parties or either of them and the husband failed to provide corroborating evidence of his grounds for divorce; rather, the record established that the parties lived separate and apart for one year prior to the filing of wife’s complaint for divorce. Leake v. Taylor, 2010 Va. App. LEXIS 126 (Va. Ct. App. Mar. 30, 2010).

Circuit court did not err in granting the motion to strike based on the lack of corroborating evidence to support the annulment; appellant relied solely on her own testimony as the corroborating evidence because appellee’s marriage and divorce records from Bolivia were not admitted into evidence, but a party’s own testimony was not sufficient corroboration. Arebalo v. Melendez, 2020 Va. App. LEXIS 162 (Va. Ct. App. June 2, 2020).

Trial court did not err by granting the wife a divorce based on desertion because she testified that the husband left the marital home in April 2018, informing her that he no longer wanted to be married to her, he packed his clothes and personal belongings, and two weeks later told their children that he would not live there again. The wife’s testimony was corroborated by her mother’s testimony that the parties permanently separated in April 2018 and the husband’s answer agreeing that they separated in April 2018. Creef v. Creef, 2021 Va. App. LEXIS 140 (Va. Ct. App. July 27, 2021).

Husband’s testimony alone is insufficient. —

Where the only evidence in the record in support of husband’s charge of desertion is his own testimony, such evidence is insufficient as a matter of law to establish a ground of divorce. As such, it cannot operate to bar permanent spousal support to wife. Hurt v. Hurt, 16 Va. App. 792, 433 S.E.2d 493, 10 Va. Law Rep. 71, 1993 Va. App. LEXIS 512 (1993).

Proof based on wife’s observations and husband’s admissions insufficient. —

III.Sufficient Evidence.

There can be no demurrer to the evidence, nor hearing of a case as on a demurrer to the evidence in a suit for divorce because the concessions required in such case are forbidden by this section, which has been the fixed policy of this State for over three-quarters of a century. Barnard v. Barnard, 132 Va. 155 , 111 S.E. 227 , 1922 Va. LEXIS 14 (1922).

A divorce will never be granted merely upon the consent, or on the default of the party charged, but only on proof of the cause alleged. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Dinsmore v. Dinsmore, 128 Va. 403 , 104 S.E. 785 (1920)).

Testimony in uncontested divorce suit is carefully viewed. —

The courts should consider the testimony in an uncontested application for a divorce with the most painstaking and scrupulous care, and, if collusion or consent appears, directly or indirectly, should deny the relief sought. Dinsmore v. Dinsmore, 128 Va. 403 , 104 S.E. 785 , 1920 Va. LEXIS 111 (1920).

Willful desertion without justification or excuse must be shown. —

In a suit for divorce full and satisfactory evidence of desertion should be required, so that the court may determine the legal questions involved from the facts presented, and a decree for an absolute divorce for desertion should not be granted unless the evidence proves willful desertion without justification or excuse. Phipps v. Phipps, 167 Va. 190 , 188 S.E. 168 , 1936 Va. LEXIS 291 (1936); Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952).

A decree of absolute divorce on the grounds of desertion should not be granted unless the evidence relied upon proves willful desertion without justification or excuse and the burden of establishing this rests on the party alleging it. Johnson v. Johnson, 213 Va. 204 , 191 S.E.2d 206, 1972 Va. LEXIS 336 (1972).

Grounds must be proved by full, clear and adequate evidence. —

In a suit for a divorce the grounds alleged as a basis therefor must be proved by full, clear and adequate evidence. Brooks v. Brooks, 200 Va. 530 , 106 S.E.2d 611, 1959 Va. LEXIS 136 (1959), limited, McIlwain v. McIlwain, 215 Va. 633 , 212 S.E.2d 284, 1975 Va. LEXIS 202 (1975).

Divorce will not be granted on insufficient evidence. —

Although there is a deplorable marital situation, and the ends of society would perhaps be better served if the parties were divorced, that does not warrant the granting of a divorce upon insufficient evidence, or upon uncorroborated evidence where corroboration is required. Johnson v. Johnson, 213 Va. 204 , 191 S.E.2d 206, 1972 Va. LEXIS 336 (1972).

Sufficiency of evidence. —

Where the husband’s testimony of his wife’s ill treatment of him is very general, vague and indefinite, and it is not corroborated, the trial court was clearly right in denying his prayer for a divorce a mensa. Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

Not only did the complainant husband’s allegation that his wife deserted him lack the necessary corroboration, it was also effectively controverted by the defendant’s evidence, and a divorce was properly denied. Carter v. Carter, 199 Va. 79 , 97 S.E.2d 663, 1957 Va. LEXIS 165 (1957).

It was not an abuse of discretion to deny a wife’s request for spousal support, because 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; the husband presented sufficient evidence to corroborate the allegations of desertion and constructive desertion. Morgan v. Watkins, 2007 Va. App. LEXIS 412 (Va. Ct. App. Nov. 13, 2007).

Sufficient reason for believing that plaintiff has abandoned suit. —

Cohabitation between husband and wife during the pendency of the suit for divorce is considered a sufficient reason for the defendant’s belief that plaintiff spouse has abandoned the suit, and a justification for not appearing to make a defense. Tarr v. Tarr, 184 Va. 443 , 35 S.E.2d 401, 1945 Va. LEXIS 163 (1945), limited, Petachenko v. Petachenko, 232 Va. 296 , 350 S.E.2d 600, 3 Va. Law Rep. 1257, 1986 Va. LEXIS 256 (1986); Ware v. Ware, 203 Va. 189 , 123 S.E.2d 357, 1962 Va. LEXIS 126 (1962).

Burden of proving condonation by cohabitation. —

Where it is sought to set aside a decree on the ground that during the pendency of the divorce action the spouse who obtained it had condoned the other’s offenses by cohabiting as before, the burden of proving such cohabitation and condonation by clear and convincing evidence rests upon the assailant of the decree. This is upon the principle that he who alleges fraud has the burden of proving it. Ware v. Ware, 203 Va. 189 , 123 S.E.2d 357, 1962 Va. LEXIS 126 (1962).

Sufficiency of corroboration. —

Testimony of a wife’s paramour did not clearly and convincingly corroborate the wife’s adultery under § 20-99 as although the wife’s paramour admitted having sexual intercourse with the wife, the paramour was ill when the paramour testified and needed medical attention. Ford v. Ford, 2008 Va. App. LEXIS 505 (Va. Ct. App. Nov. 18, 2008).

There was no evidence of collusion between the parties in an annulment action, and, therefore, there only needed to be slight corroboration; there was sufficient corroborating evidence before the trial court to establish the parties’ residence in Virginia. The pleadings and exhibits all established that both parties were domiciled in and bona fide residents of Virginia. Naseer v. Moghal, 2012 Va. App. LEXIS 259 (Va. Ct. App. Aug. 14, 2012).

Trial court did not err by granting a divorce to the mother on the grounds of adultery because there was ample corroborating evidence, as a physician who evaluated the parties corroborated the mother’s allegation, and the trial court did not err in rejecting the father’s condonation defense, as the mother filed for divorce three weeks after she claimed that the father revealed his adultery. Sizov v. Sizov, 2020 Va. App. LEXIS 299 (Va. Ct. App. Dec. 8, 2020).

IV.Admissions of Parties.

The admissions of the plaintiff are competent evidence to support averments of the answer, such admissions being “evidence of the most satisfactory character.” Cralle v. Cralle, 79 Va. 182 , 1884 Va. LEXIS 74 (1884) (see also Bailey v. Bailey, 62 Va. (21 Gratt.) 43 (1871); Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878). But see Hampton v. Hampton, 87 Va. 148 , 12 S.E. 340 (1890)).

While no divorce may be granted on the uncorroborated testimony of the parties or either of them, and the cause shall be heard independently of the admissions of either party, such testimony and admissions are admissible and competent as evidence to defeat a prayer for divorce. Graham v. Graham, 210 Va. 608 , 172 S.E.2d 724, 1970 Va. LEXIS 170 (1970).

A husband’s letters to his wife are not inadmissible in evidence on the ground that they constitute admissions of one of the parties, in violation of this section. Holt v. Holt, 174 Va. 120 , 5 S.E.2d 504, 1939 Va. LEXIS 146 (1939).

This section is not intended to change the rules of evidence in divorce cases; and the letters of the parties are admissible in evidence for the plaintiff to show the intention of the defendant to abandon and desert her. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see also Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Cralle v. Cralle, 79 Va. 182 (1884); Engleman v. Engleman, 97 Va. 487 , 34 S.E. 50 (1899). But see Hampton v. Hampton, 87 Va. 148 , 12 S.E. 340 (1890)).

Prior agreement confirmed by decree does not affect decree. —

The fact that a decree of divorce from bed and board confirmed a prior agreement of the parties, in respect to separation, property arrangements, etc., did not make it a decree on the admissions of the parties. Marshall v. Baynes, 88 Va. 1040 , 14 S.E. 978 , 1892 Va. LEXIS 70 (1892).

V.Practice and Procedure.

The purpose to be accomplished by process or notice is to apprise a party of the nature of the proceeding against him. Scott v. Scott, 142 Va. 31 , 128 S.E. 599 , 1925 Va. LEXIS 317 (1925).

The term “counsel,” as used in subdivision 5 (now subdivision 4), does not include pro se parties, notwithstanding the definition provided in Rule 1:5. Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922, 7 Va. Law Rep. 2083, 1991 Va. App. LEXIS 58 (1991) (decided prior to the 1991 amendment).

Mailing of notice to wife was not sufficient notice of hearing. —

Mailing of notice of the hearing to wife was not sufficient to provide her with notice of commissioner’s hearing; the wife acted pro se throughout the proceedings on the cross-bill, and therefore, counsel never appeared on behalf of the wife in her capacity as cross-defendant; the wife was entitled to notice of the commissioner’s hearing in the manner prescribed in subdivision 4, not subdivision 5. Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922, 7 Va. Law Rep. 2083, 1991 Va. App. LEXIS 58 (1991) (decided prior to the 1991 amendment).

Method of service of further notices or orders. —

Pursuant to subdivision 4 of § 20-99 , once a suit has been initiated based on proper service of process or a waiver of service of process, including waiver by the filing of an answer, further notices or orders may be served by delivering or mailing a copy to counsel or to a litigant pro se, accompanied, of course, by the proper certificate. Zedan v. Westheim, 60 Va. App. 556, 729 S.E.2d 785, 2012 Va. App. LEXIS 257 (2012).

Illustration of waiver of a notice. —

Where a defendant in a divorce suit not only personally accepted a notice of the taking of depositions, but was present when they were taken, and filed her answer without objecting to the notice, she thereby waived any and all irregularity therein. Scott v. Scott, 142 Va. 31 , 128 S.E. 599 , 1925 Va. LEXIS 317 (1925).

Notice of hearing sufficient. —

Judgment was affirmed in a divorce case because, pursuant to § 20-99 , the wife’s counsel provided sufficient notice to the husband of an upcoming hearing on attorney’s fees; the husband initiated the legal process by filing the complaint for divorce, so he signed a pleading in the case, and the wife’s counsel mailed a copy of the notice and motion of the entry of the final decree to husband at the mailing address that he provided. The husband’s claim that Hanover County, Va., Cir. Ct. R. 4 applied in his situation was not presented to the trial court, and the husband presented no evidence that the trial court abused its discretion in denying his continuance request. Bew v. Bew, 2012 Va. App. LEXIS 118 (Va. Ct. App. Apr. 17, 2012).

Plea of res adjudicata permissible. —

With the exceptions specified in this section, a divorce suit is conducted as other equity suits, and when warranted by the facts, a plea of res adjudicata may be filed in such a suit. The plea does not constitute one of the statutory exceptions. Griffin v. Griffin, 183 Va. 443 , 32 S.E.2d 700, 1945 Va. LEXIS 191 (1945).

The burden of proof is on the complainant in a suit for divorce to establish by full, clear and adequate evidence the charges made in his bill. Hampton v. Hampton, 87 Va. 148 , 12 S.E. 340 , 1890 Va. LEXIS 104 (1890).

The burden is upon the party appealing to point out the error in the decree and to show how and why it is wrong. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

Service of a cross-bill for divorce by mailing a copy to opposing counsel pursuant to Rule 2:13 [see now Rule 3:9] would be sufficient to satisfy the service requirement for a cross-bill, but was insufficient under this section and former Rule 2:9 to commence an action for divorce. Therefore, even if the cross-bill were treated as an initial pleading, it would still fail for lack of proper service. Bryant v. Bryant, No. 0073-84 (Ct. of Appeals Sept. 9, 1985).

Defendant is entitled to benefit of answer. —

Where the answer is responsive to the allegations of the bill, the defendant is entitled to the benefit of it, as in other cases in equity. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878) (see Throckmorton v. Throckmorton, 86 Va. 768 , 11 S.E. 289 (1890); Haynor v. Haynor, 112 Va. 123 , 70 S.E. 531 (1911)).

Effect when evidence taken ore tenus. —

In a suit for divorce where the evidence is taken ore tenus before the chancellor, the decree has the weight of a common-law judgment in a case heard without the intervention of a jury, subject, of course, to the qualifications set out in this section. Taylor v. Taylor, 182 Va. 602 , 29 S.E.2d 833, 1944 Va. LEXIS 209 (1944).

Divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard ore tenus, but such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence. Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

Refusal to file late answer. —

Wife waived her claim of error in the court clerk’s refusal to file her late answer to a husband’s divorce suit as the error was not reflected in the record on appeal and the wife did not challenge the clerk’s actions in her motion for reconsideration; there was no reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. White v. White, 2004 Va. App. LEXIS 412 (Va. Ct. App. Sept. 7, 2004).

VI.Costs.

Costs. —

Costs may be awarded to either party as equity and justice may require. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

Attorney fees. —

An award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is reviewable on appeal only for an abuse of discretion. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

Because the wife failed to cooperate with the sale of the marital property, the husband was entitled to attorney’s fees and reimbursement of additional mortgage payments that were incurred as a result; in addition, because the wife’s appeal thereof lacked merit, the husband was entitled to appellate attorney’s fees and costs. DeLuca v. Katchmeric, 2005 Va. App. LEXIS 335 (Va. Ct. App. Sept. 6, 2005).

In action for reduction of spousal support, the husband was entitled to an award of appellate attorney’s fees incurred as a result of the wife’s three unpreserved issues. Tuck v. Tuck, 2007 Va. App. LEXIS 270 (Va. Ct. App. June 26, 2007).

Because a court’s decision under § 20-146.18 whether to decline to exercise its jurisdiction necessarily concerned child custody matters, the discretionary authority to award attorney’s fees and costs pursuant to §§ 20-79 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).

Court had the authority to enter an award of attorney’s fees despite its having dismissed an ex-husband’s appeal for lack of jurisdiction because the court had jurisdiction to determine its own jurisdiction, and subdivision 5 of § 20-99 empowered courts in which divorce cases were pending to award attorney’s fees as equity and justice may required. Kotara v. Kotara, 55 Va. App. 705, 688 S.E.2d 908, 2010 Va. App. LEXIS 63 (2010).

Trial court properly considered the circumstances of the parties, and the equities of the entire case in awarding attorney’s fees to a wife in a divorce matter, as the trial court cited husband’s adultery to be the cause of the parties’ separation, and found the husband to be responsible for perpetuating and prolonging the litigation. Milam v. Milam, 2013 Va. App. LEXIS 134 (Va. Ct. App. Apr. 30, 2013).

Trial court erred by not awarding attorney’s fees to a husband because the wife’s failure to turn over documents and information related to her employment necessitated the husband’s three motions to compel and, therefore, the husband was entitled to attorney’s fees for those motions. Gregory v. Gregory, 2015 Va. App. LEXIS 339 (Va. Ct. App. Nov. 17, 2015).

Awards for attorney fees and expert witness fees were based on the parties’ circumstances and the equities of the case, as required; the trial court had to order the husband to respond to certain discovery requests, and counsel stated that if the husband had been honest about his income, then an expert might not have been necessary, plus the trial court found that the husband conservatively earned $50,000 per month, while the wife earned $2,783 per month, and there was no abuse of discretion in the award to the wife of most of her attorney fees and all of her expert witness fees. Gitter v. Gitter, 2016 Va. App. LEXIS 168 (Va. Ct. App. May 17, 2016).

Award of attorney’s fees was reversed because the trial court did not engage in the required balancing in making its award; the trial court’s award of attorney’s fees was announced for the first time in the final order, and other than stating that a wife was the “prevailing party,” no other basis for the award of attorney’s fees was given. O'Connor v. Shea, 2020 Va. App. LEXIS 73 (Va. Ct. App. Mar. 17, 2020).

Denial of the husband’s attorney’s fee request was affirmed given the lack of cooperation from both parties during discovery. Conley v. Bonasera, 72 Va. App. 337, 845 S.E.2d 242, 2020 Va. App. LEXIS 204 (2020).

Given the husband’s pattern of noncompliance, his refusal to pay any amount of spousal support for six months, and his manipulation of assets, the trial court’s award of attorney fees was not an abuse of discretion. Clavin v. Clavin, 2021 Va. App. LEXIS 108 (Va. Ct. App. July 6, 2021).

Although Va. Code Ann. § 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 Va. Code Ann. §§ 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).

The allotment of costs and attorney’s fees is matter within sound discretion of trial court. D'Auria v. D'Auria, 1 Va. App. 455, 340 S.E.2d 164, 1986 Va. App. LEXIS 223 (1986).

Reimbursement by parents of guardian ad litem fee. —

Trial court did not abuse its discretion in ordering a mother to pay one-half of a guardian ad litem’s fee, where the evidence presented demonstrated that the guardian was appointed to protect the interests of the children and favorably addressed an issue related to the mother’s successful treatment for depression. Leake v. Leake, 2004 Va. App. LEXIS 491 (Va. Ct. App. Oct. 12, 2004).

Guardian ad litem fees appropriate. —

Expert fees. —

Trail court did not err in ordering the husband to pay $25,000 towards the fees of an expert retained by the wife where the husband stonewalled the expert’s and the trial court’s efforts to value a business; but the wife’s taking of money from the business’s bank account likewise contributed to the parties’ inability to settle the case. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

Trial court did not adopt the exact income amount of either expert and noted that in setting the income figure at $50,000 a month, the trial court was being very conservative; both experts agreed that adjustments had to be made to husband’s income because he had run personal expenses through his business, and thus the husband created the need for wife to produce expert accounting testimony, and therefore the trial court did not abuse its discretion in awarding her the expenses associated with the expert. Gitter v. Gitter, 2016 Va. App. LEXIS 168 (Va. Ct. App. May 17, 2016).

Award upheld. —

Trial court did not err in awarding attorney’s fees to wife based on its finding that husband had greater ability to pay costs and fees, and that husband’s “compulsion to control” engendered a substantial portion of costs and fees incurred by parties. Cline v. Cline, 1999 Va. App. LEXIS 403 (Va. Ct. App. June 29, 1999).

Where the wife filed a motion to compel her husband to execute a separation and property settlement agreement as provided in a signed memorandum, the trial court predicated an award of attorneys’ fees to the wife upon §§ 20-99 and 20-103 . Taking into consideration the income and financial circumstances of the parties, the trial court properly awarded $8,193.54. O'Connor v. O'Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

The allotment of counsel fees is a matter within the discretion of the court, to be exercised with reference to established principles of law relating to the subject, and upon an equitable view of all the circumstances of the particular case. Miller v. Miller, 92 Va. 196 , 23 S.E. 232 , 1895 Va. LEXIS 104 (1895); Brown v. Brown, 24 S.E. 238 (Va. Ct. App. 1896) (see also Cralle v. Cralle, 81 Va. 773 (1886); Engleman v. Engleman, 97 Va. 487 , 34 S.E. 50 (1899). For a case in which the appellate court left the allotment of counsel fees to the trial court, see Craig v. Craig, 115 Va. 764 , 80 S.E. 50 7 (1914)).

Virginia courts allow an award of attorney’s fees in a suit to establish and enforce a foreign decree of alimony. Depuy v. Depuy, 686 F. Supp. 568, 1988 U.S. Dist. LEXIS 6369 (E.D. Va. 1988).

No attorney’s fees awarded. —

Trial court did not abuse its discretion in failing to award a wife attorney’s fees in an action challenging a divorce decree under a standard of reasonableness, and noting the absence of the following circumstances: (1) the failure of the trial court to consider statutory factors in equitable distribution; (2) the trial court’s error of law; (3) the failure of the trial court to consider or act upon evidence presented as to the relative financial resources of the parties; (4) the existence of a property settlement and separation agreement or prior decree providing for attorney’s fees upon specified conditions; or (5) the unnecessary prolonging or compounding of the litigation by a party. Poziombke v. Poziombke, 2006 Va. App. LEXIS 61 (Va. Ct. App. Feb. 14, 2006).

Trial court did not abuse its discretion in failing to award a wife attorney fees because it considered all of the relevant circumstances of the parties prior to making its decision to deny further attorney fees; after thoroughly considering the evidence, the trial court found that a lot of the attorney fees were incurred pursuing other relief that it did not think was really warranted. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

Court lacked jurisdiction to award fees in previous appeal. —

Trial court lacked jurisdiction to award wife attorney’s fees incurred in the course of a previous appeal. McIntyre v. McIntyre, 25 Va. App. 612, 491 S.E.2d 300, 1997 Va. App. LEXIS 594 (1997).

This section allowed a trial court to award costs incurred in that court; however, it did not provide jurisdiction to the trial court to award costs incurred on appeal, and a specific remand for an award of attorneys’ fees and costs was required. Golembiewski v. Golembiewski, 2003 Va. App. LEXIS 507 (Va. Ct. App. Oct. 7, 2003).

CIRCUIT COURT OPINIONS

Failure to fulfill notice requirement. —

As the husband did not prove the wife had actual notice of the final decree of divorce, that decree was void and, thus, could not support his res judicata defense in a contempt action based on his failure to honor a spousal support order entered in an earlier-filed case. Small v. Small, 58 Va. Cir. 114, 2001 Va. Cir. LEXIS 361 (Fairfax County Dec. 21, 2001).

Due process notice requirements differed depending on the nature of the underlying proceedings. So, since the husband was unable to make service by posting, the court could still exercise jurisdiction to award a divorce decree upon notice by publication and by default under §§ 8.01-296 and 20-104 , but could not exercise in personam jurisdiction to adjudicate issues of support, custody, equitable distribution, or counsel fees under § 20-99 . Nicoli v. Nicoli, 67 Va. Cir. 157, 2005 Va. Cir. LEXIS 170 (Loudoun County Mar. 9, 2005).

Default judgment not available in divorce actions. —

Default judgment is not available in divorce actions in Virginia. Jones v. Jones, 103 Va. Cir. 229, 2019 Va. Cir. LEXIS 550 (Chesapeake Oct. 10, 2019).

No corroboration of parties’ residence. —

Although husband asserted in his bill of complaint and final decree that he was a bona fide resident of the state, where deponent did not corroborate this essential fact, the fault warranted the court’s rejection of the final decree of divorce. Fitzpatrick v. Fitzpatrick, 58 Va. Cir. 393, 2002 Va. Cir. LEXIS 45 (Fairfax County Mar. 21, 2002).

Corroboration of alleged acts of cruelty. —

Service by posting. —

Because a husband was served with process by posting and failed to file an answer or otherwise make a general appearance, any further notices were required to be served on the husband by any of the prescribed statutory methods, until such time as the husband made a general appearance in the case. Therefore, the circuit court declined to enter the final decree of divorce submitted by the wife’s counsel at a hearing because the service of the notice of the hearing by mailing the same to the husband was insufficient. Jones v. Jones, 103 Va. Cir. 229, 2019 Va. Cir. LEXIS 550 (Chesapeake Oct. 10, 2019).

Award of attorney fees. —

On complainant’s motion for attorney’s fees and motion to compel defendant to execute a property settlement agreement, where the parties had entered into a memorandum of understanding which contemplated an attorney’s fee provision in the subsequent property settlement agreement, the court, taking into consideration the income and financial circumstances of the parties, would require defendant to pay attorney’s fees for the complainant’s defense of the motion to enforce compliance brought by defendant; such order would not violate subsection C of § 20-109 or its common-law application. O'Connor v. O'Connor, 60 Va. Cir. 9, 2002 Va. Cir. LEXIS 65 (Fairfax County Apr. 12, 2002).

Because a husband refused to make a reasonable settlement offer, because his income significantly exceeded the wife’s income, and because he was in a better financial position, the wife’s request for an award of attorney’s fees was granted. Belcher v. Belcher, 2006 Va. Cir. LEXIS 12 (Loudoun County Jan. 17, 2006).

Award of attorney fees to the wife in the parties’ divorce action was appropriate pursuant to subdivision 5 of § 20-99 because there was a complete disparity of income and because it was equitable to award the wife fees since she had incurred significant debt to pay her attorney while the husband had no debt related to his attorney fees. Johnson v. Johnson, 2011 Va. Cir. LEXIS 32 (Fairfax County Feb. 7, 2011).

No attorney’s fees or costs awarded. —

Where the husband and wife settled a child custody lawsuit, the court refused to award either party attorney’s fees or costs. While the wife bore the primary blame for the unnecessary litigation, both parties had the financial resources to pay their own fees. Frysiek v. Frysiek, 66 Va. Cir. 319, 2005 Va. Cir. LEXIS 2 (Fairfax County Jan. 4, 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 which each party desired. Dwoskin v. Dwoskin, 2021 Va. Cir. LEXIS 40 (Fairfax County Mar. 5, 2021).

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

Discretion of court as to counsel fees. —

Husband’s admissions in divorce case were not binding on the court. —

Husband’s admissions that his property was marital property were not binding on the trial court in a divorce action. Smith v. Smith, 2005 Va. Cir. LEXIS 271 (Nelson County Dec. 20, 2005).

§ 20-99.1. Repealed by Acts 1988, c. 583.

§ 20-99.1:1. How defendant may accept service; waive service.

A defendant in such suits may accept service of process by signing the proof of service before any officer authorized to administer oaths. This proof of service shall, when filed with the papers in the suit, have the same effect as if it had been served upon the defendant by a person authorized to serve process. In addition, service of process may be accepted or waived by any party, upon voluntary execution of a notarized writing specifying an intent to accept or waive any particular process, or by a defendant by filing an answer in the suit. Such notarized writing may be provided in the clerk’s office of any circuit court and may be signed by such party to the proceedings before any clerk or deputy clerk of any circuit court, under oath, or may be drafted and filed by counsel or a pro se party in the proceeding, and shall, when filed with the papers in the suit, have the same effect as if the process specified had been personally served upon the defendant by a person authorized to serve process. For a suit for a no-fault divorce under subdivision A (9) of § 20-91 , any such waiver may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or is otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant. The court may enter any order or decree without further notice unless a defendant has filed an answer in the suit.
When service is accepted pursuant to this section by a nonresident person out of the Commonwealth, such service shall have the same effect as an order of publication duly executed.
Any process served outside the Commonwealth executed in such manner as provided for in this section is validated.

History. 1988, c. 583; 1989, c. 562; 1992, c. 563; 2019, cc. 133, 237.

Editor’s note.

The 2019 amendments.

The 2019 amendments by cc. 133 and 237 are identical, and in subsection A, inserted “or a pro se party” in the fourth sentence and inserted the fifth sentence.

Law Review.

For 1987 survey of Virginia domestic relations law, see 21 U. Rich. L. Rev. 745 (1987).

For article, “Civil Practice and Procedure,” see 54 U. Rich. L. Rev. 7 (2019).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 37.

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3 Active Jurisdiction. § 3.01 Process. Bryson.

Virginia Forms (Matthew Bender). No. 2-113 Acceptance/Waiver of Service of Process and Waiver of Future Service of Process and Notice.

CASE NOTES

Failure to provide required notice. —

Court erred by holding a parent in contempt of court for failing to pay child support, pursuant to the parties’ final decree of annulment, because the parent never received notice, pursuant to subsection A of § 20-99.1:1 , that the decree of annulment, including its child support provisions, had either been tendered for entry or had been entered. Zedan v. Westheim, 60 Va. App. 556, 729 S.E.2d 785, 2012 Va. App. LEXIS 257 (2012).

Waiver of process. —

One of the major differences between suits for divorce and other suits in equity was the rule that service of process could not be waived in divorce actions. This rule was modified by former § 20-99.1 A to allow a written, notarized waiver of process under oath. Bryant v. Bryant, No. 0073-84 (Ct. of Appeals Sept. 9, 1985).

Trial court did not abuse its discretion in denying a husband’s request to delay entry of the final order because the husband had ample time to notify the trial court of any objections he had to its rulings prior to the hearing in August and entry of the final decree; nothing in the statute can be construed as prohibiting a court from entering a final order when a hearing has been held, a letter opinion sent to the parties, and a motion to reopen the evidence has been heard and ruled upon. Garrett v. Garrett, 2017 Va. App. LEXIS 104 (Va. Ct. App. Apr. 18, 2017).

Knowing and voluntary waiver. —

Wife’s motion for reconsideration of a divorce awarded to her husband was properly denied as the decree was not entered by default, but because the wife knowingly and voluntarily waived service of process under § 20-99.1:1 ; the divorce was awarded independently of the parties’ admissions and the wife failed to seek leave to file a late answer. Further, the wife waived her claims of error due to her illness, lack of counsel, and belief that spousal support and property matters remained. White v. White, 2004 Va. App. LEXIS 412 (Va. Ct. App. Sept. 7, 2004).

CIRCUIT COURT OPINIONS

Waiver of process. —

Trial court, in a divorce suit, refused to accept husband’s deposition evidence that was taken before service upon the husband’s wife was completed and in a venue other than the one in which the suit was filed or any of the parties resided or was employed, despite the wife’s signed acknowledgment of a waiver of her rights. Sakowski v. Sakowski, 65 Va. Cir. 249, 2004 Va. Cir. LEXIS 211 (Roanoke July 24, 2004).

Waiver ineffective, but objection to waiver was waived by general appearance. —

Husband’s waiver of service in a wife’s divorce action was ineffective because he signed it before the suit was filed, pursuant to § 20-99.1:1 . However, the husband waived any objection to personal jurisdiction by making a general appearance in the action by filing a motion to set aside the decree. Ertel-Batten v. Batten, 75 Va. Cir. 297, 2008 Va. Cir. LEXIS 248 (Charlottesville July 1, 2008).

§ 20-99.2. Service in divorce and annulment cases.

In any suit for divorce or annulment or affirmation of a marriage, process may be served in any manner authorized under § 8.01-296 or 8.01-320 .
Any such process served prior to July 1, 1984, shall not be invalidated solely because service was made as prescribed under § 8.01-296 .

History. 1984, c. 611; 2012, cc. 78, 84.

The 2012 amendments.

The 2012 amendments by cc. 78 and 84 are identical, and added “or 8.01-320 ” at the end of subsection A.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 37.

CIRCUIT COURT OPINIONS

Immunity from civil service. —

Where a husband did not establish that he was a diplomat or diplomatic agent instead of a member of the administrative staff under the Vienna Convention on Diplomatic Relations and Optional Protocol, Nov. 24, 1972, arts. 31 and 37, 23 U.S.T. 3227 or the International Organizations Immunities Act, 22 U.S.C.S. § 288d(b), the husband could not claim immunity of civil process in a divorce proceeding. Abu-Hassan v. Al-Nsour, 64 Va. Cir. 76, 2004 Va. Cir. LEXIS 40 (Fairfax County Feb. 11, 2004).

§ 20-100. Repealed by Acts 1974, c. 123.

§ 20-101. Repealed by Acts 1975, c. 644.

§ 20-102. When not necessary to allege or prove offer of reconciliation.

It shall not be necessary, in any suit for divorce from the bond of matrimony or from bed and board upon the ground of willful desertion or abandonment, to allege or prove an offer of reconciliation.

History. 1938, p. 382; Michie Code 1942, § 5106a; 1975, c. 644.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 21, 58.2.

§ 20-103. Court may make orders pending suit for divorce, custody or visitation, etc.

In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, the court having jurisdiction of the matter may, at any time pending a suit pursuant to this chapter, in the discretion of such court, make any order that may be proper (i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including (a) an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, or (b) an order that a party pay secured or unsecured debts incurred jointly or by either party, (ii) to enable such spouse to carry on the suit, (iii) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse, (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party or both parties provide health care coverage or cash medical support, or both, for the children, (v) to provide support, calculated in accordance with § 20-108.2 , for any child of the parties to whom a duty of support is owed and to pay or continue to pay support for any child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2 , (vi) for the exclusive use and possession of the family residence during the pendency of the suit, (vii) to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit, (viii) to compel either spouse to give security to abide such decree, or (ix)(a) to compel a party to maintain any existing policy owned by that party insuring the life of either party or to require a party to name as a beneficiary of the policy the other party or an appropriate person for the exclusive use and benefit of the minor children of the parties and (b) to allocate the premium cost of such life insurance between the parties, provided that all premiums are billed to the policyholder. Nothing in clause (ix) shall be construed to create an independent cause of action on the part of any beneficiary against the insurer or to require an insurer to provide information relating to such policy to any person other than the policyholder without the written consent of the policyholder. The parties to any petition where a child whose custody, visitation, or support is contested shall show proof that they have attended within the 12 months prior to their court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court except that the court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause. The seminar or other program shall be a minimum of four hours in length and shall address the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. Once a party has completed one educational seminar or other like program, the required completion of additional programs shall be at the court’s discretion. Parties under this section shall include natural or adoptive parents of the child, or any person with a legitimate interest as defined in § 20-124.1 . The fee charged a party for participation in such program shall be based on the party’s ability to pay; however, no fee in excess of $50 may be charged. Whenever possible, before participating in mediation or alternative dispute resolution to address custody, visitation or support, each party shall have attended the educational seminar or other like program. The court may grant an exemption from attendance of such program for good cause shown or if there is no program reasonably available. Other than statements or admissions by a party admitting criminal activity or child abuse, no statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding.
In addition to the terms provided in subsection A, upon a showing by a party of reasonable apprehension of physical harm to that party by such party’s family or household member as that term is defined in § 16.1-228, and consistent with rules of the Supreme Court of Virginia, the court may enter an order excluding that party’s family or household member from the jointly owned or jointly rented family dwelling. In any case where an order is entered under this paragraph, pursuant to an ex parte hearing, the order shall not exclude a family or household member from the family dwelling for a period in excess of 15 days from the date the order is served, in person, upon the person so excluded. The order may provide for an extension of time beyond the 15 days, to become effective automatically. The person served may at any time file a written motion in the clerk’s office requesting a hearing to dissolve or modify the order. Nothing in this section shall be construed to prohibit the court from extending an order entered under this subsection for such longer period of time as is deemed appropriate, after a hearing on notice to the parties. If the party subject to the order fails to appear at this hearing, the court may extend the order for a period not to exceed six months.
In cases other than those for divorce in which a custody or visitation arrangement for a minor child is sought, the court may enter an order providing for custody, visitation or maintenance pending the suit as provided in subsection A. The order shall be directed to either parent or any person with a legitimate interest who is a party to the suit.
Orders entered pursuant to this section which provide for custody or visitation arrangements pending the suit shall be made in accordance with the standards set out in Chapter 6.1 (§ 20-124.1 et seq.). Orders entered pursuant to subsection B shall be certified by the clerk and forwarded as soon as possible to the local police department or sheriff’s office which shall, on the date of receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia crime information network system established and maintained by the Department of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If the order is later dissolved or modified, a copy of the dissolution or modification shall also be certified, forwarded and entered in the system as described above.
There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this section that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection H.
If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.
If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 26 percent of the payor spouse’s monthly gross income and 58 percent of the payee spouse’s monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 27 percent of the payor spouse’s monthly gross income and 50 percent of the payee spouse’s monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section § 20-108.2 .
The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties’ current financial circumstances or the impact of any tax exemption and any credits resulting from such exemptions that indicates the presumptive amount is inappropriate.
The presumptive formula set forth in this section shall only apply to cases where the parties’ combined monthly gross income does not exceed $10,000.
An order entered pursuant to this section shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause.

A1. Any award or order made by the court pursuant to subsection A shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise. Upon the request of either party, the court may identify and state in such order or award the specific source from which the financial obligation imposed is to be paid.

History. Code 1919, § 5107; 1975, c. 644; 1982, c. 306; 1983, c. 253; 1989, c. 740; 1991, c. 60; 1994, cc. 518, 769; 1995, c. 674; 1996, cc. 767, 866, 879, 884; 1997, c. 605; 1998, c. 616; 2000, c. 586; 2003, cc. 31, 45; 2004, c. 732; 2007, c. 205; 2009, c. 713; 2011, c. 687; 2014, c. 55; 2015, cc. 653, 654; 2016, c. 352; 2020, c. 651.

Cross references.

As to temporary orders for support, see § 20-71 .

As to violation of provisions of protective orders, see § 16.1-253.2.

As to unauthorized use of electronic tracking device, see § 18.2-60.5 .

As to trespass after having been forbidden to do so, see § 18.2-119 .

As to exclusion from access to premises following entry of court order pursuant to § 20-103 B, see § 55.1-1230 .

Editor’s note.

Acts 2000, c. 586, cl. 2, provides that the provisions of c. 586 shall become effective on July 1, 2001.

Acts 2000, c. 586, which amended this section, provided in cl. 4: “That the provisions of this act shall expire on July 1, 2003, unless reenacted by the General Assembly.” The section is set out above without the amendment by Acts 2000, c. 586.

Acts 2020, c. 651, cl. 2 provides: “That the provisions of this act shall apply only to suits commenced on or after July 1, 2020, and that the provisions of this act shall not be construed to create a material change in circumstances for the purposes of modifying an existing support order.”

The 2000 amendments.

The 2000 amendment by c. 586, effective July 1, 2001, divided subsection A into two paragraphs, and rewrote the present second paragraph of subsection A, which formerly read: “In addition to the authority hereinabove, the court may order parties with a minor child or children to attend educational seminars and other like programs conducted by a qualified person or organization approved by the court, on the effects of the separation or divorce on minor children, parenting responsibilities, options for conflict resolution, and financial responsibilities, provided that no fee in excess of fifty dollars may be charged for participation in any such program. No statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding.”

The 2003 amendments.

The 2003 amendments by cc. 31 and 45 are identical, and rewrote subsection A; and twice substituted “15” for “fifteen” in subsection B.

The 2004 amendments.

The 2004 amendment by c. 732, in subsection A, substituted “is contested” for “is at issue for an original decision, whether contested or by agreement” and inserted “except that the court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause”; and substituted “this title” for Title 20” in subsection D.

The 2007 amendments.

The 2007 amendment by c. 205 added the last sentence of subsection B.

The 2009 amendments.

The 2009 amendment by c. 713 inserted “or both parties” and “or cash medical support, or both” in clause (iv) of subsection A.

The 2011 amendments.

The 2011 amendment by c. 687, in the first sentence in subsection A, added the clause (i)(a) designation and clause (i)(b); and in subsection D, deleted “of this title” following “(§ 20-124.1 et seq.).”

The 2014 amendments.

The 2014 amendment by c. 55 in subsection A inserted clause (ix) in the first sentence, added the second sentence and made minor stylistic changes.

The 2015 amendments.

The 2015 amendments by cc. 653 and 654 are identical, and substituted “pay or continue to pay support for” for “continue to support” preceding “any” in clause (v) of subsection A.

The 2016 amendments.

The 2016 amendment by c. 352 added subsection A1.

The 2020 amendments.

The 2020 amendment by c. 651, inserted subsections E through I and redesignated former subsection E as subsection J. For applicability clause, see Editor’s note.

Law Review.

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 on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983).

As to interpretation of § 20-103 in dealing with payments of family mortgage, see 22 U. Rich. L. Rev. 565 (1988).

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

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

For casenote & comment, “A Privilege for ‘Mommy Dearest’? Criticizing Virginia’s Mental Health Records Privilege in Custody Disputes and the Court’s Application in Schwartz v. Schwartz,” see 13 Geo. Mason L. Rev. 1341 (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, §§ 35, 50, 53, 66, 67, 80, 81.

CASE NOTES

Statutory scheme for spousal support. —

The legislature has provided a statutory scheme for the support of a spouse during the pendency of a suit and thereafter. The law provides for only two types of support, either pendente lite pursuant to this section or support due a former spouse pursuant to § 20-107.1 .Weizenbaum v. Weizenbaum, 12 Va. App. 899, 407 S.E.2d 37, 8 Va. Law Rep. 232, 1991 Va. App. LEXIS 157 (1991).

Authority of court under section. —

This section gives the trial court authority to provide for the support of the wife and children during the pendency of the suit, to prevent either spouse from imposing any restraint upon the personal liberty of the other, to provide for the use and possession of the family residence during the pendency of the suit, and to preserve the estate of either spouse. Taylor v. Taylor, 5 Va. App. 436, 364 S.E.2d 244, 4 Va. Law Rep. 1758, 1988 Va. App. LEXIS 12 (1988).

Where a wife was an “other person” entitled to payment under § 55-80 after the husband sold certain equipment to his father and transferred money to his parents 11 months after the parties separated knowing of the wife’s marital/property rights under § 20-107.3 , and where a constructive trust was not created when a special commissioner held the proceeds pursuant to § 20-103 , the husband was not entitled to summary judgment. Buchanan v. Buchanan, 266 Va. 207 , 585 S.E.2d 533, 2003 Va. LEXIS 87 (2003).

Word “spouse” appears in subsection A as the product of a legislative design to make the statute gender neutral. 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).

Circuit court’s incorporation of a contested separation agreement — which was actually unenforceable at the time it was incorporated into a pendente lite order because of the parties’ failed reconciliation after the execution of the agreement — without first inquiring as to the validity of the agreement was reversible error. The husband was entitled to a credit towards the husband’s future spousal support obligations, based on the amounts that the husband had already paid, which exceeded the monthly spousal support ordered in the final decree. Ruane v. Ruane, 2016 Va. App. LEXIS 320 (Va. Ct. App. Nov. 22, 2016).

Although there are statutory impediments to the retroactive modification of spousal support awarded in a final decree, there are no such statutory impediments to the retroactive modification of pendente lite spousal support awards. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Pendente lite order is interlocutory; a circuit court has the equitable power to retroactively correct errors in interlocutory orders during the pendency of a lawsuit. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

“Judgment by operation of law” language in § 20-107.1 is not included in § 20-103 regarding pendente lite orders; therefore, it is presumed the absence of the language from the pendente lite spousal support statute manifests the General Assembly’s intent for there to be a distinction between the authority of a circuit court to modify spousal support awarded in a final decree, as opposed to spousal support in a pendente lite order, which is interlocutory and temporary. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Jurisdictional issues. —

In a divorce proceeding, because the trial court had appropriate jurisdiction over the parties, it could enter any necessary temporary orders until entry of a final determination of custody, and nothing in the Code suggested that a court could not enter a decree of divorce before a final determination of child custody, so long as it complied with the requirements of § 20-124.2 concerning prompt adjudication of custody. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Jurisdiction after voluntary nonsuit. —

Construction with § 20-109 . —

There is no reference to § 20-109 in the statute, and unlike with spousal support ordered in a final divorce decree, the General Assembly did not require that pendente lite spousal support orders be subject to the provisions of the statute; thus, § 20-109 applies to any maintenance and support upon the entry of a divorce decree, and it does not concern pendente lite spousal support authorized by the statute. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Mistake of law. —

Circuit court abused its discretion in refusing to reconsider modifying the pendente lite spousal support award amount because its decision was influenced by a mistake of law regarding its authority to retroactively modify the amount of spousal support and arrearage awarded in the pendente lite order. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Support order pending property resolution permitted. —

The law provides for only two types of support, either pendente lite pursuant to this section or support due a former spouse pursuant to § 20-107.1 . The trial court has discretion to award necessary support to a spouse at any time pending the suit. Thus, so long as portions of the suit are still pending, a spouse is entitled to such support, even though the divorce has been granted. Therefore, having bifurcated the suit, the court had discretion to order support pending resolution of the property issues. Cummings v. Cummings, 1994 Va. App. LEXIS 739 (Va. Ct. App. Dec. 20, 1994).

Allowances are within discretion of the court. —

Within the sound discretion of the court, allowances for expenses of a wife (now spouse), including reasonable counsel fees, are proper when such allowances are necessary in connection with the prosecution of suit to affirm marital status. McFarland v. McFarland, 179 Va. 418 , 19 S.E.2d 77, 1942 Va. LEXIS 235 (1942); George v. King, 208 Va. 136 , 156 S.E.2d 615, 1967 Va. LEXIS 195 (1967).

An award to the wife (now spouse) of attorney’s fees and suit money is discretionary. Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

The award of an attorney’s fee to the wife (now spouse) is within the sound discretion of the trial court. Wilkerson v. Wilkerson, 214 Va. 395 , 200 S.E.2d 581, 1973 Va. LEXIS 320 (1973).

Post-separation mortgage payments. —

Trial court did not err in crediting husband with value by which his post-separation mortgage payments reduced the parties’ joint debt. Cline v. Cline, 1999 Va. App. LEXIS 688 (Va. Ct. App. Dec. 21, 1999).

Trial court properly divided the net proceeds from the sale of the marital residence because, while the marital residence was marital property and the net equity of the proceeds was to be divided equally, the trial court did not abuse its discretion pursuant to its contempt powers by reimbursing the husband for portions of the mortgage and HOA payments he made where the delay in the sale of the marital residence was due to the fault of the wife and her continuous contemptuous behavior throughout the course of the proceedings. Ware v. Srinivasan, 2018 Va. App. LEXIS 210 (Va. Ct. App. July 31, 2018).

This section, by implication, gives the trial judge authority to make provisions for mortgage payments during the pendency of the suit and during the period of time that is required to adjudicate the rights of the parties under the equitable distribution statute. Taylor v. Taylor, 5 Va. App. 436, 364 S.E.2d 244, 4 Va. Law Rep. 1758, 1988 Va. App. LEXIS 12 (1988).

Authority to appoint a conservator. —

Pendente lite orders were terminated on the death of the payor spouse, as the death also abated the divorce action, making the pendente lite order void. Where judge appointed conservator because the husband was continually violating the court’s orders, refusing to respond to discovery, and dissipating the estate, the conservator had authority to preserve the estate and allow the suit to proceed; but the power abated upon husband’s death. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426, 2004 Va. App. LEXIS 454 (2004).

Parties entitled to rely on language of order. —

A necessary concomitant of the rule that the terms of a support order must be strictly complied with is that the parties are entitled to rely on the language of the order. Carper v. Carper, 228 Va. 185 , 319 S.E.2d 766, 1984 Va. LEXIS 187 (1984).

Duty of husband (now spouse) to pay allowances. —

As a result of the marriage and condonation, the husband (now spouse) incurred responsibilities from which he could not escape. Among these responsibilities were his duty, under this section, to pay the sums necessary for the maintenance of the woman and to enable her to carry on her suit for divorce, and, under §§ 20-107 (now repealed) through 20-113 , to pay such proper permanent alimony upon the dissolution of the marriages as the court might decree. West v. West, 126 Va. 696 , 101 S.E. 876 , 1920 Va. LEXIS 20 (1920).

No distinction is made between suits to annul, dissolve or affirm marriages. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

What allowances usually allowed. —

In a suit for divorce the uniform practice is to allow a wife (now spouse) who is without means of her own a reasonable sum to be paid by the husband (now spouse), for her temporary support, counsel fees, and costs of litigation. Under the circumstances of this case $150 is not an excessive allowance for such purpose. Kiser v. Kiser, 108 Va. 730 , 62 S.E. 936 , 1908 Va. LEXIS 92 (1908).

The allowance, in the case in judgment, to the wife, of the sum of $225.00 payable in 3 monthly installments for suit money, and of $150.00 for counsel fees, is a reasonable allowance. Craig v. Craig, 118 Va. 284 , 87 S.E. 727 , 1916 Va. LEXIS 8 (1916) (see also Burton v. Burton, 118 Va. 519 , 88 S.E. 51 (1916)).

Where the wife (now spouse) has no separate estate and is the defendant in a divorce action initiated by her husband, it is proper for her to be allowed a reasonable sum to be paid by her husband (now spouse) for attorney’s fees and suit money. Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

Allowances pending appeal are not allowed by this section. —

Although this section authorizes the trial court, pending the suit, to compel the man (now spouse) to pay sums necessary to maintain the woman (now spouse) and enable her to carry on the suit, yet it does not authorize the trial court to make any order for such purpose pending appeal to appellate court from decree rendered in same suit for alimony. Cralle v. Cralle, 81 Va. 773 , 1886 Va. LEXIS 141 (1886).

Financial condition of husband (now spouse) should not be ignored. —

In allowing the wife (now spouse) a reasonable sum for attorney’s fees and suit money the court should not entirely ignore the financial condition of the husband (now spouse). Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

Refusal to obey order justifies court to imprison. —

Where in a suit for divorce and alimony the evidence showed that the husband was a strong man, 33 years old, at work, the owner of real estate worth $800, and of a boat which he used in connection with his business as an oysterman, while the amount of temporary alimony which he refused to pay was only $30, and it was apparent that he had contumaciously defied the order of the court without legal justification or excuse, a decree ordering the husband’s imprisonment was justified. West v. West, 126 Va. 696 , 101 S.E. 876 , 1920 Va. LEXIS 20 (1920).

An abuse of discretion will not be presumed from the failure of the trial court to award the wife (now spouse) attorney’s fees and suit money in a divorce action, although in many cases the failure to make such an award would be improper. Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

No specific form provided. —

This section provides for no specific form in which a request for temporary child support and counsel fees shall be made. Davis v. Davis, 206 Va. 381 , 143 S.E.2d 835, 1965 Va. LEXIS 210 (1965).

However, judicial notice is taken that, where the wife is named defendant, it is of almost universal practice for a request for temporary child support and counsel fees to be made in the form of a written notice served on complainant’s counsel that defendant will move the court to require complainant to pay for temporary child support and counsel fees, and that the request is often made before, or even in the absence of, the filing of a cross-bill by the wife. Davis v. Davis, 206 Va. 381 , 143 S.E.2d 835, 1965 Va. LEXIS 210 (1965).

Under this section the court may direct payments to be made to the wife (now spouse) at stated periods and may punish as for contempt upon failure so to do. Wright v. Wright, 164 Va. 245 , 178 S.E. 884 , 1935 Va. LEXIS 198 (1935).

This section is a legislative recognition of the principle that “sums necessary for the maintenance of the woman (now spouse)” and those needed “to enable her to carry on the suit” are in the same category, and that pending the cause the court may by the process of contempt “compel the man (now spouse) to pay” such allowances. Eddens v. Eddens, 188 Va. 511 , 50 S.E.2d 397, 1948 Va. LEXIS 185 (1948).

Award of custody to parent who carries on homosexual relationship in residence improper. —

A child’s best interests are not promoted by an award of custody to a parent who carries on an active homosexual relationship in the same residence as the child. An award of custody to such a parent constitutes an abuse of judicial discretion. Roe v. Roe, 228 Va. 722 , 324 S.E.2d 691, 1985 Va. LEXIS 167 (1985).

Appointment of guardian ad litem permissible in custody hearing ancillary to divorce proceeding. —

Circuit courts conducting a custody hearing as part of divorce proceedings are not constrained by the absence of a specific provision within § 8.01-9 providing for appointment of a guardian ad litem. Accordingly, in those contested custody cases where the trial judge finds that the best interests of the child are not adequately protected by the parties, appointment of a guardian ad litem for the child is appropriate. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482, 9 Va. Law Rep. 1300, 1993 Va. App. LEXIS 99 (1993).

Appointment criteria in custody disputes. —

While a guardian ad litem appointment is not required in every contested custody case, a finding that the appointment of a guardian ad litem is necessary and would be in the child’s best interest is an essential prerequisite. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482, 9 Va. Law Rep. 1300, 1993 Va. App. LEXIS 99 (1993).

Dismissal under § 8.01-335 B terminated right to support pendente lite. —

The authority for the court to provide for spousal support “during the pendency of the suit” is limited to the right to make such award only for the period the action is pending, notwithstanding the wording of the pendente lite decree which provided that the award should continue until “further order of the court.” The order of the dismissal by operation of law under subsection B of § 8.01-335 terminated the wife’s right to further pendente lite support. Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

Dismissal under § 8.01-335 B does not retroactively nullify accrued support. —

There is no persuasive authority or reason to hold that the dismissal of an action pursuant to subsection B of § 8.01-335 , standing alone, retroactively nullifies the right to accrued spousal support under a pendente lite order. To so hold would be in derogation of the well established principle that court-ordered support becomes vested when it accrues and the courts are without authority to make any change with regard to arrearages. Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

Denial of accrued support upon dismissal would violate due process. —

A dismissal under subsection B of § 8.01-335 requires no notice to the parties, and, thus, to hold that the right to the amount of support that had accrued could be taken away by dismissal of the action would be in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

Award of pendente lite support has no bearing on right to support after dissolution of marriage. —

Evidence that a former husband and wife earned roughly the same amount, that only the wife had health and retirement benefits, that she discharged most of her debts in bankruptcy, that the husband had voluntarily reduced both parties’ joint debts, and that he provided health insurance for their minor child, supported the trial court’s decision not to award the wife spousal support under § 20-107.1 . The fact that she had been awarded pendente lite support under § 20-103 was irrelevant. Scarberry v. Scarberry, 2009 Va. App. LEXIS 28 (Va. Ct. App. Jan. 27, 2009).

Pendente lite award had no presumptive effect on amount of equitable distribution award. —

On appeal from the parties’ divorce action, the trial court found the rental income from rental homes was acquired during the marriage and thus, was marital property; neither party contested that finding. Based on the parties’ marital interest in that income, the trial court had the authority to grant a monetary award to husband under § 20-107.3 and the pendente lite award had no presumptive effect on the amount awarded in equitable distribution; accordingly, the trial court did not err in granting the husband half of the rental income acquired by the wife during the period of separation. Spreadbury v. Spreadbury, 2010 Va. App. LEXIS 151 (Va. Ct. App. Apr. 20, 2010).

Support award which differs from pendente lite support. —

A showing of change of circumstances is not required to justify an award of a different amount of support than that awarded in the pendente lite decree. Santos v. Santos, No. 1050-86-2 (Ct. of Appeals July 13, 1987).

Request for pendente lite support not sufficient for reservation of permanent support. —

Husband’s request for pendente lite support was not sufficient to raise before the court a reservation of his right to permanent spousal support. Bennett v. Bennett, 1997 Va. App. LEXIS 611 (Va. Ct. App. Sept. 23, 1997).

The appeal of a claim of inadequacy of a pendente lite award in a divorce action is not an appeal from a “final order” or from an order “granting, dissolving or denying an injunction” or “adjudicating the principles of a cause,” and, therefore, is not appealable under former § 17-116.05. Pinkard v. Pinkard, 12 Va. App. 848, 407 S.E.2d 339, 8 Va. Law Rep. 247, 1991 Va. App. LEXIS 175 (1991).

Interlocutory custody order not barred. —

Nothing in this section barred trial court from entering order finally resolving issue of custody; on the contrary, resolution of custody matters before deciding remaining issues comported with requirements of § 20-124.2 .Summers v. Summers, 1999 Va. App. LEXIS 349 (Va. Ct. App. June 15, 1999).

Freeze order is interlocutory order granting injunction. —

Since freeze order to preserve husband’s estate was only a temporary provision used to ensure that the terms of the final decree were met, it was not a final order under this section. However, a freeze order entered under this section was an interlocutory order granting an injunction, and, thus, Court of Appeals had jurisdiction to hear an appeal of such an order. Dixon v. Pugh, No. 1647-90-2 (Ct. of Appeals Aug. 13, 1991).

Freeze order justified. —

Where a pendente lite order freezing the parties’ assets pursuant to clause (vii) of subsection A of § 20-103 was justified by the husband’s pre-trial actions and the husband did not show that an order “requiring” him to obtain employment to pay child support was a mandatory injunction under § 17.1-405 , the order was not appealable. Wolters v. Wolters, 2003 Va. App. LEXIS 585 (Va. Ct. App. Nov. 12, 2003).

Reimbursement of pendente lite support. —

There was no abuse of discretion by ordering the wife to reimburse the husband the full amount of pendente lite support he paid to her during the pendency of their annulment proceedings, because the wife did not obtain a lawful divorce from the prior spouse until approximately eight years after she married the husband. Naseer v. Moghal, 2013 Va. App. LEXIS 220 (Va. Ct. App. July 30, 2013).

Final divorce decree terminates pendente lite support. —

A pendente lite decree awarding spousal support only applied during the pendency of litigation and was terminated when the cause was dismissed by the final decree of divorce, even though that decree was voidable due to the failure to give notice to the husband and obtain his endorsement. Whiting v. Whiting, 262 Va. 3 , 2001 Va. LEXIS 83 (2001).

Pendente lite order had no presumptive effect. —

Although a father seemed to argue that there was no material change of circumstances since the entry of the December 30, 2009, pendente lite order, under subsection E of § 20-103 , such temporary orders had no presumptive effect and were not determinative when adjudicating the underlying cause; the only final order entered in this case prior to the February 3, 2012, custody determination was entered by a domestic relations district court in March 2009. Therefore, any material change of circumstances had to be measured from the entry of that order rather than the pendente lite order. Congleton v. Congleton, 2013 Va. App. LEXIS 112 (Va. Ct. App. Apr. 9, 2013).

Support award differs from pendente lite support. —

Circuit court’s reliance on payments a husband made pursuant to a pendente lite order was improper because that order had no presumptive effect on the circuit court’s determination of the final spousal support award; the determination of a pendente lite spousal support award and the determination of a final spousal support award involved the consideration of different circumstances, and the pendente lite spousal support award did not reflect the husband’s ability to pay spousal support. Collard v. Collins, 2017 Va. App. LEXIS 281 (Va. Ct. App. Nov. 14, 2017).

Termination of pendente lite award. —

An order of pendente lite support ordinarily terminates upon the final adjudication of all of the issues properly raised in the pleadings, which would usually result in dismissal of the case from the pending docket; however, where the purported final decree was a nullity, there was no final adjudication and the case remained pending and the husband’s obligation under the pendente lite order continued. Whiting v. Whiting, 32 Va. App. 192, 526 S.E.2d 806, 2000 Va. App. LEXIS 279 (2000), rev'd, 262 Va. 3 , 2001 Va. LEXIS 83 (2001).

This section, which authorizes courts to award support pendente lite, allows courts to order a spouse to make support payments to the other spouse for “any time pending the suit,” a period of time which terminates upon the final adjudication of all of the issues properly raised in the pleadings, which would usually result in dismissal of the case from the pending docket. Whiting v. Whiting, 32 Va. App. 192, 526 S.E.2d 806, 2000 Va. App. LEXIS 279 (2000), rev'd, 262 Va. 3 , 2001 Va. LEXIS 83 (2001).

Where a trial court conducted an ore tenus equitable distribution hearing and was advised that the parties’ marital home had been destroyed by fire and that the wife and child were left without a residence or sufficient funds to obtain shelter, the trial court abused its discretion in allowing the husband to continue to make mortgage payments under a pendente lite child support order and receive credit for them in lieu of making the required child support payments to wife for the child’s benefit. The child support was not allocated to benefit the child according to the guidelines. Stewart-Payne v. Payne, 2008 Va. App. LEXIS 49 (Va. Ct. App. Jan. 29, 2008).

Retroactive modification of pendente lite order. —

Circuit court may, in its discretion, retroactively modify a pendente lite spousal support order prior to the entry of a final decree in a case; the divorce statutes are silent on retroactive modification of a pendente lite spousal support order, and the General Assembly has authorized circuit courts to fill statutory gaps in our divorce statutes by using common law equitable principles. Everett v. Tawes, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Final award. —

Although a divorce action was pending, payments including loan payments, insurance premiums, and real estate taxes were not ordered as pendents lite support under the provisions of subsection A of this section. Rather, they were ordered in an appeal from an award of child and spousal support by the juvenile and domestic relations district court. Consequently, the award was final, subject to modification only upon a showing of a change of circumstances. Nenninger v. Nenninger, 1995 Va. App. LEXIS 111 (Va. Ct. App. Feb. 7, 1995).

Award of attorneys’ fees. —

Award of attorney’s fees to the husband was proper, as the wife had a substantial income while the husband was a “stay at home” parent, and the wife’s actions contributed greatly to the husband’s costs. Dunwody v. Dunwody, 2008 Va. App. LEXIS 498 (Va. Ct. App. Nov. 12, 2008).

Trial court had actual and potential jurisdiction to order a husband to pay attorneys’ fees because it had jurisdiction over the divorce and annulment suits and jurisdiction over the parties; by statute, the trial court could enter various interlocutory orders, and the later annulment decree did not render void ab initio the interlocutory orders entered in connection with the litigation. 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).

CIRCUIT COURT OPINIONS

Award of attorney’s fees. —

Husband was awarded a portion of his legal fees under § 20-103 as the wife had taken unreasonable positions in the litigation; however, the fee award was discounted based on the disparate present earning capacities of the parties. Bonin v. Bonin, 2003 Va. Cir. LEXIS 181 (Fairfax County July 30, 2003).

Although the respective legal positions of the husband and wife in their divorce case may have failed, there was no evidence or support before the trial court to conclude that the parties acted unreasonably, and, thus, the trial court found the evidence insufficient to justify an award of attorney fees. Clouser v. Clouser, 2006 Va. Cir. LEXIS 178 (Fairfax County Sept. 8, 2006).

In a divorce action involving issues of custody and support, the court denied the motions filed by the mother and the father respectively for attorney’s fees as the legal positions taken by the parties were not unreasonable, the evidence did not establish that either party had caused the opposing party to incur unnecessary legal expenses, and the parties had provided in their Memorandum of Understanding that each party should bear their own legal fees. Porzel v. Porzel, 2007 Va. Cir. LEXIS 201 (Fairfax County Sept. 25, 2007).

Advancement of sums for attorney fess and costs. —

In granting and denying in part and denied in part a husband’s motion for advancement of sums for attorney’s fees and costs and sale and disbursement of certain marital assets, the circuit court found that the husband was not currently able to carry on the divorce suit. While the wife had access to substantial non-marital funds to assist her in paying her attorney’s fees, the husband was not and had not been in a similar position. Friedman v. Friedman, 96 Va. Cir. 78, 2017 Va. Cir. LEXIS 99 (Norfolk June 30, 2017).

Attorney’s fee award against party proceeding pro se. —

Where the husband appeared pro se in the divorce case but the husband benefited from assistance from the wife’s attorney from time to time, the trial court ordered the husband to pay half of the wife’s attorney’s fees and court costs. Alexander v. Alexander, 2006 Va. Cir. LEXIS 100 (Portsmouth July 31, 2006).

Sums necessary for maintenance and support of the petitioning spouse. —

Mother was not barred from receiving pendente lite spousal support even though the mother was living with another man at a time the mother was still married to the father, as adultery only barred a spousal support award made pursuant to a dissolution of marriage pursuant to § 20-107.1 , not pendente lite support made pursuant to § 20-103 . Ciccarelli v. Ciccarelli, 60 Va. Cir. 161, 2002 Va. Cir. LEXIS 134 (Loudoun County Aug. 29, 2002).

Wife’s income from rent, horse judging, horse boarding, and a trust were sufficient to cover her monthly expenses and, thus, adequately meet her needs; since she had substantial separate property, an order that the husband, who was currently unemployed, pay her temporary spousal support would be improper, which meant her request for temporary spousal support was denied. Becker v. Becker, 2005 Va. Cir. LEXIS 76 (Loudoun County June 7, 2005).

Use of the marital residence pendente lite and other support. —

Trial court granted wife exclusive use and possession of the family residence while her divorce action against her husband was being litigated and also awarded the wife sole physical and legal custody of the parties’ two children and pendente lite child support, but refused to award pendente lite spousal support after noting that wife’s income was 70% of what husband made. Frazier v. Frazier, 60 Va. Cir. 115, 2002 Va. Cir. LEXIS 111 (Loudoun County July 22, 2002).

In a divorce action where the parties had not physically separated and neither party had engaged in any violence, abuse, or other misconduct, the trial court denied the parties’ cross-motions for pendente lite relief seeking exclusive use and possession of the marital home, because under the circumstances, such relief would have facilitated divorce in violation of the public policy of the Commonwealth of Virginia, which was to foster marriage and encourage married people to remain together. McEwen v. McEwen, 60 Va. Cir. 401, 2002 Va. Cir. LEXIS 297 (Henrico County Nov. 27, 2002).

Husband was entitled to exclusive use and possession of the marital home; the continued presence of the wife, her habits, and her threats were placing undue stress and contributing to the husband’s physical deterioration. Didier v. Didier, 85 Va. Cir. 72, 2012 Va. Cir. LEXIS 164 (Chesapeake Apr. 26, 2012).

Husband met the requirements to exclude the wife from the marital home because the husband’s testimony showed health problems resulting from the wife’s alleged “hoarding” and threatening to use a gun and to have someone come and “take him out.” Didier v. Didier, 85 Va. Cir. 72, 2012 Va. Cir. LEXIS 186 (Chesapeake July 26, 2012).

Pendente lite order for spouse’s support did not terminate before final entry of divorce decree because such an order terminates on final adjudication of all of the issues raised in the pleadings, generally when the case is dismissed from the docket. A husband and wife’s property agreement regarding the husband’s long term financial obligations that was made subsequent to a court’s pendente lite order requiring him to pay for half the repairs to the marital home did not nullify the pendente lite order. Ross v. Ross, 63 Va. Cir. 62, 2003 Va. Cir. LEXIS 197 (Fredericksburg June 30, 2003).

Modification of pendente lite orders. —

Given the interlocutory nature of pendente lite orders, the court finds that such orders may be modified during the pendency of the case regardless of the emancipation of the children; the court relies on the statutory language that such orders shall have no presumptive effect when adjudicating the underlying case. So long as the divorce action is pending before it, any pendente lite order is subject to modification. Morales v. Morales, 107 Va. Cir. 232, 2021 Va. Cir. LEXIS 23 (Loudoun County Feb. 10, 2021).

With respect to the husband’s motion to modify his child support obligations heard January 13, 2021, the court did not find sufficient evidence of a material change in circumstances to amend the pendente lite order at that time as it related to his request to amend for his short-lived period of unemployment; however, he could present evidence at the final trial as to whether a modification was appropriate as set forth in prior request for relief. Morales v. Morales, 107 Va. Cir. 232, 2021 Va. Cir. LEXIS 23 (Loudoun County Feb. 10, 2021).

Pendente lite support proper. —

Given the husband’s monthly income, the court granted the wife’s motion for pendente lite spousal support and attorney’s fees and the husband was ordered to pay the wife the sum of $2,500.00 per month retroactive to March 6, 2009, for pendente lite spousal support and the sum of $4,000.00 for attorney’s fees. Dunn v. Dunn, 78 Va. Cir. 490, 2009 Va. Cir. LEXIS 187 (Loudoun County Sept. 3, 2009).

Motion for pendente lite spousal support denied. —

Wife’s motion for pendente lite spousal support was denied because the wife had ability to earn a reasonable amount of income, had ample time to work, was awarded temporary possession of the marital home, the husband was ordered to make the mortgage and equity line of credit payments, and was also ordered to provide health insurance. Brendle v. Brendle, 73 Va. Cir. 390, 2007 Va. Cir. LEXIS 105 (Orange County June 29, 2007).

Access to marital business. —

Court granted a wife full access to and participation in the parties’ business and left it to them to fashion a method to preserve it because the business was a marital asset to which the wife had a right of access, the husband would leave the business to her if she returned to the business, the wife admitted that she did not have the knowledge, experience, or expertise to operate the business, and the court could not manage the marital business. Hatter v. Hatter, 89 Va. Cir. 78, 2014 Va. Cir. LEXIS 143 (Augusta County May 5, 2014).

Discretion of court as to counsel fees. —

§ 20-104. Order of publication against nonresident defendant.

In any suit for annulment, for divorce, either a vinculo matrimonii or a mensa et thoro, or for affirmance of a marriage, an affidavit shall be filed that the defendant is not a resident of the Commonwealth of Virginia, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county or city such defendant is, without effect, an order of publication shall be entered against such defendant by the court, or by the clerk of the court wherein such suit is pending, either in term time or vacation, which order shall state the object of the suit and the grounds thereof, and the order of publication shall be published as required by law. If the plaintiff in the suit has been determined to be indigent by the court pursuant to § 19.2-159 , the order stating the object of the suit and the grounds thereof shall be mailed to the defendant at his last known address and posted on the main entrance to the circuit courthouse of the city or county wherein the suit is filed, and no order of publication shall be required. No depositions in the suit shall be commenced until at least 10 days shall have elapsed after the order has been duly published or mailed and posted as required by law.

All annulments or divorces heretofore granted in suits in which the defendant was proceeded against by an order of publication or of mailing and posting which required the defendant to appear within 10 days after due publication or mailing and posting thereof, and in which depositions were taken less than 15 days, but not less than 10 days, after such due publication or mailing and posting and in suits in which the defendant was proceeded against by an order of publication or of mailing and posting issued on an affidavit that diligence had been used by or on behalf of the plaintiff to ascertain in what county or city such defendant was, without effect, or wherein the order of publication or of mailing and posting was entered by the court, are hereby validated and declared to be binding upon the parties to such suit, when the other proceedings therein were regular and the annulment or divorce otherwise valid.

The cost of such publication or of such mailing and posting shall be paid by the petitioner or applicant.

History. Code 1919, § 5108; 1938, p. 111; 1940, p. 642; 1942, p. 202; 1950, p. 72; 1975, c. 644; 1996, c. 352; 2008, c. 699.

The 2008 amendments.

The 2008 amendment by c. 699, in the first paragraph, inserted the second sentence, substituted “has been duly published or mailed and posted” for “of publication has been duly published” in the last sentence; in the second paragraph, inserted “or of mailing and posting” following “order of publication” four times, and inserted “or mailing and posting” following “after due publication”; and in the last paragraph inserted “or of such mailing and posting.”

Law Review.

For discussion of the question of whether Virginia denies indigents the right to divorce, see 12 U. Rich. L. Rev. 735 (1978).

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 37, 39.

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3 Active Jurisdiction. § 3.01 Process. Bryson.

CASE NOTES

Prescribed procedure is valid. —

If this section is followed a divorce so procured is just as valid and binding as if procured on personal service. Taylor v. Taylor, 159 Va. 338 , 165 S.E. 414 , 1932 Va. LEXIS 201 (1932).

Difference between Virginia and Nevada law. —

See Humphreys v. Humphreys, 139 Va. 146 , 123 S.E. 554 , 1924 Va. LEXIS 92 (1924).

When notice of taking of depositions dispensed with. —

A nonresident respondent in a suit for divorce upon whom a copy of the bill has been served, accompanied by proof of service, and who does not appear within the period allowed is not entitled to notice of taking of depositions unless the court orders notice. Owens v. Owens, 197 Va. 681 , 90 S.E.2d 776, 1956 Va. LEXIS 139 (1956).

Notice of taking depositions is required in all divorce cases except where defendant is proceeded against by order of publication, or its equivalent and fails to appear. It is one of those procedural steps to which careful scrutiny must be afforded. Where such a notice is required, it should clearly appear from the record, that proper notice was served, or was accepted by the opposite party, or was waived by him. Mackey v. Mackey, 203 Va. 526 , 125 S.E.2d 194, 1962 Va. LEXIS 179 (1962).

CIRCUIT COURT OPINIONS

Notice requirements. —

Venue. —

§ 20-104.1. Orders of publication may be combined.

Orders of publication as provided for in § 20-104 in any two or more suits for annulment or divorce may be combined into a single order to be published as required by law; provided that, at such time as the clerk may direct the plaintiff in each case shall pay to the clerk a pro rata share of the expense of such publication. Payments made by any plaintiff shall be subject to the provisions of § 20-99 as to costs.

History. 1974, c. 581.

§ 20-105. Permissible form for orders of publication.

Any orders of publication under the provisions of § 20-104 may be substantially in the form following:

Virginia: In the . . . . . . . . . . . Court of . . . . . . . . . ., . . . . . . . . . ., 20. . . . (Here set forth Style of Cause) The object of this suit is to obtain (an annulment of marriage) (a divorce from bed and board) (a divorce from the bond of matrimony) from the defendant on the ground of . . . . . . . . . . . . . . . ., (here set forth grounds) . . . . . . . . . . . . . . . . (here set forth other relief prayed for, if any) . . . . . . . . . . . . . . . . (here set forth the styles and objects of the suits for divorce or annulment combined) It appearing from an affidavit (that the defendant(s) is not a resident (are not residents) of this Commonwealth,) (or) (that diligence has been used by or on behalf of plaintiff(s) to ascertain in what county or city the defendant(s) is (are), without effect,) it is ordered that the defendant appear before this court (within ten days after due publication of this notice) (before . . . . . . . . . . . ., 20. . . .) and protect (his) (her) (their) interests herein. An Extract-Teste: . . . . . . . . . . . . . . . p.q. (Clerk)

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History. 1946, p. 272; Michie Suppl. 1946, § 5108a; 1974, c. 581.

§ 20-105.1. Alternative procedures.

The provisions of Title 8.01 for orders of publication shall be construed as alternatives to the procedures set forth in §§ 20-104 through 20-105 and not in conflict therewith.

History. 1978, c. 46.

Law Review.

For discussion of the question of whether Virginia denies indigents the right to divorce, see 12 U. Rich. L. Rev. 735 (1978).

§ 20-106. Testimony may be required to be given orally; evidence by affidavit.

In any suit for divorce, the trial court may require the whole or any part of the testimony to be given orally in open court, and if either party desires it, such testimony and the rulings of the court on the exceptions thereto, if any, shall be reduced to writing, and the judge shall certify that such evidence was given before him and such rulings made. When so certified the same shall stand on the same footing as a deposition regularly taken in the cause, provided, however, that no such oral evidence shall be given or heard unless and until after such notice to the adverse party as is required by law to be given of the taking of depositions, or when there has been no service of process within the Commonwealth upon, or appearance by the defendant against whom such testimony is sought to be introduced. However, a party may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court only in support of a divorce on the grounds set forth in subdivision A (9) of § 20-91 , where (i) the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.
The affidavit of a party submitted as evidence shall be based on the personal knowledge of the affiant, contain only facts that would be admissible in court, give factual support to the grounds for divorce stated in the complaint or counterclaim, and establish that the affiant is competent to testify to the contents of the affidavit. If either party is incarcerated, neither party shall submit evidence by affidavit without leave of court or the consent in writing of the guardian ad litem for the incarcerated party, or of the incarcerated party if a guardian ad litem is not required pursuant to § 8.01-9 . The affidavit shall:
1. Give factual support to the grounds for divorce stated in the complaint or counterclaim, including that the parties are over the age of 18 and not suffering from any condition that renders either party legally incompetent;
2. Verify whether either party is incarcerated;
3. Verify the military status of the opposing party and advise whether the opposing party has filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.);
4. Affirm that at least one party to the suit was at the time of the filing of the suit, and had been for a period in excess of six months immediately preceding the filing of the suit, a bona fide resident and domiciliary of the Commonwealth;
5. Affirm that the parties have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A (9) of § 20-91 ;
6. Affirm the affiant’s desire to be awarded a divorce pursuant to subdivision A (9) of § 20-91 ; and
7. State whether there were children born or adopted of the marriage and affirm that neither party is known to be pregnant from the marriage.
If a party moves for a divorce pursuant to § 20-121.02 , an affidavit may be submitted in support of the grounds for divorce set forth in subdivision A (9) of § 20-91 .
A verified complaint shall not be deemed an affidavit for purposes of this section.
Either party may submit the deposition or affidavit required by this section in support of the grounds for divorce requested by either party pursuant to the terms of this section.
In contemplation of or in a suit for a no-fault divorce under subdivision A (9) of § 20-91 , the plaintiff or his attorney may take and file, as applicable, the complaint, the affidavit or deposition, any other associated documents, and the proposed decree contemporaneously, and a divorce may be granted solely on those documents where the defendant has waived service and, where applicable, notice.

History. Code 1919, § 5109; 1932, p. 388; 2012, c. 72; 2014, cc. 288, 521; 2015, c. 315; 2016, c. 238; 2019, cc. 133, 237; 2020, c. 900; 2021, Sp. Sess. I, c. 194.

Editor’s note.

At the direction of the Virginia Code Commission, “50 U.S.C. § 3901 et seq.” was substituted for “50 U.S.C. App. § 501 et seq.” to conform to amendments by Acts 2016, c. 643.

The 2012 amendments.

The 2012 amendment by c. 72 designated the existing provisions of the section as subsection A and added subsections B and C; and added the last sentence in subsection A.

The 2014 amendments.

The 2014 amendment by c. 288, substituted “grounds for divorce stated” for “allegations” and added the second sentence in subsection B; substituted “Give factual support to the grounds for divorce stated” for “Affirm the allegations” in subdivision B 1; substituted “Verify whether either” for “Affirm that neither” in subdivision B 2; substituted “whether either party” for “that neither party” in subdivision B 8 b; and substituted “Give factual support to the grounds for divorce stated” for “Verify the allegations” in subdivision B 8 c.

The 2014 amendment by c. 521 in subdivisions B 4 and B 8 d inserted “immediately preceding the commencement of the suit.”

The 2015 amendments.

The 2015 amendment by c. 315 in subdivisions B 4 and B 8 d, substituted “was at the time of the filing of the suit, and had been” for “is, and has been” and “filing” for “commencement”; substituted “at least one” for “a” in subdivision B 8; substituted “either party’s intention” for “the moving party’s intention” in subdivision B 8 f; added subsection C; and redesignated former subsection C as subsection D.

The 2016 amendments.

The 2016 amendment by c. 238 added subsection E.

The 2019 amendments.

The 2019 amendments by cc. 133 and 237 are identical, and added subsection F.

The 2020 amendments.

The 2020 amendment by c. 900 in subsection A, substituted “the Commonwealth” for “this Commonwealth” in the second sentence; and in subdivision B 7 and in subdivision B 8 e, substituted “neither party is known” for “the wife is not known.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 194, effective July 1, 2021, deleted subdivision B 8, pertaining to the requirements for an affidavit of a corroborating witness; in subsection C, substituted “an affidavit” for “any affidavit”; substituted “deposition or affidavit” for “depositions or affidavits” in subsections E and F.

Law Review.

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

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 3 Active Jurisdiction. § 3.01 Process. Bryson.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 34, 39.

CASE NOTES

Object of statute. —

“The provision of this section, putting the certified evidence on ‘the same footing as a deposition,’ could not have been intended to deprive the trial court of the chief benefit conferred upon it by that section — that of seeing the witnesses and hearing them testify. The judge was to hear the case and decide it on its merits, ‘independently of the admissions of either party in the pleadings or otherwise,’ and, in order to reach a righteous judgment, the statute, for the first time in this State, conferred upon the court the right to ‘require the whole or any part of the testimony to be given orally in open court.’ The object of the statute was not to save costs to the parties, nor to keep the testimony from the permanent files of the court, but to give the court the opportunity of seeing and hearing the witnesses. The right to have oral testimony in open court is not conferred upon the parties, but upon the court, and it could only have been for the reasons stated.” Barnard v. Barnard, 132 Va. 155 , 111 S.E. 227 , 1922 Va. LEXIS 14 (1922).

Procedure should conform to that in common-law actions. —

Nethers v. Nethers, 160 Va. 335 , 168 S.E. 428 , 1933 Va. LEXIS 213 (1933).

Exceptions to general rule that court may require oral testimony in open court. —

Exceptions in clauses (ii) and (iii) of subsection A did not apply. —

Exceptions to the general rule in subsection A of § 20-106 that a trial court could require that testimony be given orally, in open court set forth in clause (i) of subsection A of § 20-106 did not apply as the parties had not entered into a separation agreement; the exception in clause (ii) of subsection A of § 20-106 did not apply as there were issues other than the grounds of the divorce itself to be adjudicated since the husband asserted that the parties’ marriage was void ab initio since the wife was married to someone else at the time. Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71, 2013 Va. App. LEXIS 138 (2013).

Time of reducing exceptions to writing. —

Where it was contended that as this section prescribes no time in which the exceptions mentioned and the oral testimony shall be reduced to writing and certified, the same might be done at any time within the appealable period, and if and when so certified it becomes a deposition regularly taken in the cause, it was held that there was no merit in this contention. Nethers v. Nethers, 160 Va. 335 , 168 S.E. 428 , 1933 Va. LEXIS 213 (1933).

Oral testimony can be required after depositions have been taken. —

Even after depositions have been taken, the court may, under this section, require the testimony to be given orally in court. Any inconsistency in a party’s testimony thereby disclosed may be used to discredit his case. Black v. Black, 134 Va. 246 , 114 S.E. 592 , 1922 Va. LEXIS 153 (1922).

But case may be established without ore tenus testimony. —

While it might have been conducive to a fuller development of the facts if the court had required, as it might have done under the provisions of this section that the testimony, or at least the more important parts of it, be given ore tenus in open court, complainant had established a case entitling her to a divorce from the bonds of matrimony. Grim v. Grim, 126 Va. 245 , 101 S.E. 140 , 1919 Va. LEXIS 91 (1919).

Weight to be accorded decree where evidence given orally. —

Where in a suit for divorce the trial court, under this section required the testimony to be given orally in open court, the decree of the trial court upon appeal is entitled to at least the same weight as the report of a commissioner in chancery, upon conflicting testimony, who saw and heard the witnesses testify, and whose report is supported by competent evidence and approved by the trial court. Barnard v. Barnard, 132 Va. 155 , 111 S.E. 227 , 1922 Va. LEXIS 14 (1922).

This section, however, does not determine what weight shall be given to the decree of the trial court where the evidence has been given orally before it. Barnard v. Barnard, 132 Va. 155 , 111 S.E. 227 , 1922 Va. LEXIS 14 (1922).

Affidavit or deposition defeated either by filing of responsive pleading or appearance. —

Phrase “has failed to file a responsive pleading or to make an appearance as required by law” in clause (iii) of subsection A of § 20-106 is most naturally read to impose two separate circumstances, the filing of a responsive pleading or an appearance, either of which will defeat divorce by affidavit or deposition without leave of court; this reading is not only consistent with the plain language of clause (iii) of subsection A of § 20-106 , it also is consistent with the overall purpose of subsection A of § 20-106, which, as evidenced by clauses (i) and (ii) of subsection A of § 20-106, is to allow the use of depositions or affidavits without leave of court only when the divorce is, aside from the ground of divorce itself under clause (ii), uncontested. When the defending party enters an appearance to challenge the divorce, that party obviously is not proceeding in an uncontested fashion. Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71, 2013 Va. App. LEXIS 138 (2013).

Relying on affidavit. —

Wife was properly precluded from relying on an affidavit to corroborate her separation from her husband for more than one year under clause (iii) of subsection A of § 20-106 since her husband had entered an appearance through his attorney to challenge the divorce. Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71, 2013 Va. App. LEXIS 138 (2013).

Wife was not barred from relying on affidavit testimony based on this statute to prove the jurisdictional grounds for divorce; the trial court held that the affidavits were viable after it denied the husband’s counter-complaint because the case reverted back to the wife’s original claim in which she submitted the affidavits. Moreover, the trial court granted wife leave of court to proceed upon the affidavits that would establish the separation date. Laveist v. Laveist, 2016 Va. App. LEXIS 106 (Va. Ct. App. Apr. 5, 2016).

§ 20-107. Repealed by Acts 1982, c. 309.

Cross references.

For provision regarding the court’s decree as to maintenance and support of spouses, see § 20-107.1 .

For provision as to the court’s decree as to the custody and support of children, see § 20-107.2 .

For provision regarding the court’s decree as to property of the parties, see § 20-107.3 .

§ 20-107.1. Court may decree as to maintenance and support of spouses.

Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses, notwithstanding a party’s failure to prove his grounds for divorce, provided that a claim for support has been properly pled by the party seeking support. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.
Any maintenance and support shall be subject to the provisions of § 20-109 , and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision A (1) of § 20-91 . However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.
The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.
In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification. Unless otherwise provided by stipulation or contract executed on or after July 1, 2020, or unless otherwise ordered by the court on or after July 1, 2020, a party seeking to exercise his right to support so reserved shall be required to prove a material change of circumstances as a prerequisite for the court to consider exercise of such reservation.
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95 . In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3 ;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court’s order. Any order granting or reserving any request for spousal support shall state whether the retirement of either party was contemplated by the court and specifically considered by the court in making its award, and, if so, the order shall state the facts the court contemplated and specifically considered as to the retirement of the party. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.
For purposes of this section and § 20-109 , “date of separation” means the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter and “defined duration” means a period of time (i) with a specific beginning and ending date or (ii) specified in relation to the occurrence or cessation of an event or condition other than death or termination pursuant to § 20-110 .
Where there are no minor children whom the parties have a mutual duty to support, an order directing the payment of spousal 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:
1. If known, the name, date of birth, and social security number of each party and, unless otherwise ordered, each party’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 party’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;
2. The amount of periodic spousal support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due;
3. A statement as to whether there is an order for health care coverage for a party;
4. 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 spousal support obligations first, with any payment in excess of the current obligation applied to arrearages;
5. If spousal support payments are ordered to be paid directly to the obligee, and unless the court for good cause shown orders otherwise, the parties shall give each other and the court 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; and
6. Notice that in determination of a spousal support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law.

History. 1982, c. 309; 1984, c. 456; 1988, c. 620; 1994, c. 518; 1998, c. 604; 2003, c. 625; 2016, cc. 477, 615; 2018, c. 583; 2020, cc. 196, 1227, 1246.

Cross references.

As to restoration of a party’s former name upon a decree of divorce, see § 20-121.4 .

Editor’s note.

Acts 1998, c. 604, which amended this section, provides in cl. 2: “That the provisions of this act shall apply only to suits for initial spousal support orders filed on or after July 1, 1998, and suits for modification of spousal support orders arising from suits for initial support orders filed on or after July 1, 1998.” Acts 2001, c. 725, cl. 2, repeals Acts 1998, c. 604, cl. 2 as it relates to § 20-109 retroactively to July 1, 1998.

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

The 2003 amendments.

The 2003 amendment by c. 625 substituted “50” for “fifty” in subsection D; and added subsection H.

The 2016 amendments.

The 2016 amendments by c. 477, in subsection A, inserted “notwithstanding a party’s failure to prove his grounds for divorce, provided that a claim for support has been properly pled by the party seeking support”; in subsection E, inserted A, preceding “(3).”

The 2016 amendment by c. 615, inserted “and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce” in subdivision E 13.

The 2018 amendments.

The 2018 amendment by c. 583 inserted the second sentence in subsection F.

The 2020 amendments.

The 2020 amendment by c. 196 added the last sentence in subsection D.

The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and 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, and the name and address of each party’s employer” for “driver’s license number and the name and address of his employer” in subdivision H 1; and made a stylistic change.

Law Review.

For note, “Alimony and Property Settlement Agreements in Virginia,” see 42 Va. L. Rev. 710 (1956).

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 comment on married women’s names, see 11 U. Rich. L. Rev. 121 (1976).

For article, “Support v. Alimony in Virginia,” see 12 U. Rich. L. Rev. 139 (1977).

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 comment, “Allocating the Fruits of a Marriage: A Look at Virginia’s New Domestic Relations Statute,” see 17 U. Rich. L. Rev. 347 (1983).

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 the effect of the Tax Reform Act of 1984 on alimony and transfers of property incident to divorce, see 19 U. Rich. L. Rev. 129 (1984).

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

For comment, “The Enforceability of Arbitration Clauses in Virginia Marital Separation Agreements,” see 19 U. Rich. L. Rev. 333 (1985).

For article, “The Role of Fault in Virginia Divorce Proceedings,” see 20 U. Rich. L. Rev. 295 (1986).

As to 1988 legislative changes in spousal support, see 22 U. Rich. L. Rev. 565 (1988).

For article, “Virginia’s Equitable Distribution Law: An Owner’s Manual,” see 46 Wash. & Lee L. Rev. 807 (1989).

For comment, “The Equitable Theory as a Basis for Alimony in Virginia,” see 12 G.M.U. L. Rev. 341 (1990).

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 a review of domestic relations law in Virginia for year 1999, see 33 U. Rich. L. Rev. 939 (1999).

For an article, “A Dead Language: Divorce Law and Practice Before No-Fault,” see 86 Va. L. Rev. 1497 (2000).

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

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).

For comment, “Virtual Adultery: No Physical Harm, No Foul?,” see 46 U. Rich. L. Rev. 667 (2012).

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

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 22 Enforcement of Judgments. § 22.02 Judgment Liens. Friend.

Lindey on Separation Agreements and Antenuptial Contracts (Matthew Bender). Parley and Lindey.

Michie’s Jurisprudence.

For related discussion, see 1B M.J. Appeal and Error, § 86.

CASE NOTES

Analysis

I. General Consideration.
II. Jurisdiction.
III. Reservation of Right.
IV. Support and Maintenance.
V. Noncompliance With Decree.

I.General Consideration.

Editor’s note. —

Many of the cases cited below were decided under former § 20-107 .

Legislative intent. —

The legislature did not intend to make any distinction between decrees for the dissolution of a marriage and decrees annulling a marriage. It did not intend to make ineligibility to marry the ground upon which the support of children of the marriage should be denied. The intent was to authorize a court to make such further decree as it might deem expedient in cases pending before it dealing with the severance of the relations of the parties incident to marriage. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

The intent of the legislature was to confer upon the court the right not only to settle the status of the parties, but the future rights of each in the property of the other. Furthermore, the court has the right to make decrees concerning the estate of either party, and as to existing property, the court has a right to settle the rights of each party in respect to the other, and if need be to extinguish them. Gum v. Gum, 122 Va. 32 , 94 S.E. 177 , 1917 Va. LEXIS 81 (1917) (see Bailey v. Bailey, 62 Va. (21 Gratt.) 43 (1872); Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Porter v. Porter, 68 Va. (27 Gratt.) 599 (1876); Harris v. Harris, 72 Va. (31 Gratt.) 13 (1878); Francis v. Francis, 72 Va. (31 Gratt.) 283 (1879); Cralle v. Cralle, 84 Va. 198 , 6 S.E. 12 (1887)).

Statutory scheme for spousal support. —

The legislature has provided a statutory scheme for the support of a spouse during the pendency of a suit and thereafter. The law provides for only two types of support, either pendente lite pursuant to § 20-103 or support due a former spouse pursuant to this section. Weizenbaum v. Weizenbaum, 12 Va. App. 899, 407 S.E.2d 37, 8 Va. Law Rep. 232, 1991 Va. App. LEXIS 157 (1991).

In rem and in personam proceedings. —

This section applies to the initial setting of spousal support. “If the court determines that an award should be made, it shall, in determining the amount, consider the [listed factors].” The consideration of all of the factors in this section is not required when a judge rules upon a motion to reduce the award under § 20-109 . Allison v. Allison, 1996 Va. App. LEXIS 271 (Va. Ct. App. Apr. 16, 1996).

Section not vehicle for restoration of funds expended during marriage. —

This section provides for maintenance and support of a spouse and is not a vehicle for the restoration of funds expended during a marriage by one spouse for the benefit of the other spouse. Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

Use of § 20-107.1 rather than § 20-109 to determine spousal support. —

Trial court did not err by using § 20-107.1 to determine an award of final spousal support rather than § 20-109 . Section 20-107.1 establishes the criteria to be used for the initial setting of spousal support and § 20-109 applies to a modification of that award. Wright v. Wright, 38 Va. App. 394, 564 S.E.2d 702, 2002 Va. App. LEXIS 349 (2002).

The fact that § 20-107.1 references § 20-109 does not mean that the legislature intended to require a court to consider cohabitation as well as adultery to bar an initial award of support. Wright v. Wright, 38 Va. App. 394, 564 S.E.2d 702, 2002 Va. App. LEXIS 349 (2002).

Spousal support award and monetary award under § 20-107.3 compared. —

A distinct difference exists between a spousal support award and a monetary award made pursuant to § 20-107.3 . Spousal support involves a legal duty flowing from one spouse to the other by virtue of the marital relationship. By contrast, a monetary award does not flow from any legal duty, but involves an adjustment of the equities, rights and interests of the parties in marital property. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

Child support and spousal support are separate and distinct obligations based on different criteria. Layne v. Layne, No. 2477-94-1 (Ct. of Appeals June 20, 1995).

Retroactivity of amendment. —

Nothing in the 2016 amendment suggests the General Assembly intended the amendment to apply retroactively to actions filed before July 1, 2016; the prior version was therefore applied in this spousal support case from 2014. Ozfidan v. Ozfidan, 2017 Va. App. LEXIS 5 (Va. Ct. App. Jan. 10, 2017).

Weight given to trial court’s decision. —

The trial court’s decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it. Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

When a court awards spousal support based upon due consideration of the factors enumerated in this section, as shown by the evidence, its determination will not be disturbed except for a clear abuse of discretion. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363 (1986), In accord with second paragraph in bound volume. See Spicer v. Spicer, No. 1397-90-1 (Ct. of Appeals Oct. 22, 1991).

When the chancellor has given due consideration to the factors set forth in this section, his determination will not be disturbed on appeal except for a clear abuse of discretion. Collier v. Collier, 2 Va. App. 125, 341 S.E.2d 827, 1986 Va. App. LEXIS 249 (1986).

Reconsideration on remand. —

Appellate court did not address whether a circuit court abused its discretion when it awarded one spouse a lump sum spousal support award because the equitable distribution award was reversed on appeal. Therefore, the provisions with regard to the marital property were to be considered on remand, and the court necessarily had to then re-examine spousal support in the light of whatever new or different considerations flowed from the additional proceedings. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Because the court of appeals reversed the equitable distribution award and remanded for additional proceedings, the circuit court was required, on remand, also to revisit the awards of child and spousal support. Henderson v. Henderson, 2018 Va. App. LEXIS 134 (Va. Ct. App. May 15, 2018).

No authority for partial lump sum support. —

The court is without statutory authority to grant “partial” lump sum spousal support under this section. Weizenbaum v. Weizenbaum, 12 Va. App. 899, 407 S.E.2d 37, 8 Va. Law Rep. 232, 1991 Va. App. LEXIS 157 (1991).

Lump sum award of attorney’s fees inappropriate. —

Trial court erred in characterizing award of attorney’s fees to wife in divorce case as an award of lump-sum spousal support. Taylor v. Taylor, 27 Va. App. 209, 497 S.E.2d 916, 1998 Va. App. LEXIS 228 (1998).

Wife’s share of retirement pay held to be support rather than property disposition. —

Former § 20-107 and § 20-111 read together. —

Section 20-111 was cognate with former § 20-107 and the two sections were to be read and considered together. Smith v. Smith, 200 Va. 77 , 104 S.E.2d 17, 1958 Va. LEXIS 161 (1958).

Where wife waived her right to request spousal support, she was barred from raising it on remand. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

Pleadings must raise support issue. —

Trial court had the authority to enter a further decree concerning spousal support in the wife’s divorce case, but the exercise of such power remained dependent upon the pleadings having raised the issue and since the wife’s pleadings did not raise the issue of spousal support, the trial court did not err in denying her request for a spousal support award. Lawson v. Lawson, 2003 Va. App. LEXIS 361 (Va. Ct. App. June 24, 2003).

Spouse’s request for spousal support abated with the dismissal of the spouse’s complaint. It was, therefore, error for the trial court to have awarded spousal support without any pleading at all before the court making the request. Wroblewski v. Russell, 63 Va. App. 468, 759 S.E.2d 1, 2014 Va. App. LEXIS 241 (2014).

Decree which treated support seeking spouse’s assets as income. —

Where the trial judge referred to the wife’s obtaining an income from investment of the cash which could be derived from the sale of the marital assets but where also, the trial judge’s comments indicated that he intended the wife to invade the principal of her estate as another source of income for her support, the court of appeals remanded the issue of spousal support since the provision made with regard to the marital property under § 20-107.3 are factors to consider in making the support award, a decree which singles out this factor to the exclusion of others, and essentially treats the support seeking spouse’s marital assets as income, cannot withstand scrutiny on appeal. Zipf v. Zipf, 8 Va. App. 387, 382 S.E.2d 263, 6 Va. Law Rep. 17, 1989 Va. App. LEXIS 82 (1989).

No error in imputing income to husband in addition to retirement. —

Trial court did not err in imputing to husband $40,000 per year income, in addition to his retirement pay of $45,000, when the court was determining spousal and child support. The trial court found that husband’s pre-retirement income was $80,000, and his retirement pay of $45,000 was insufficient to maintain the family on its pre-retirement level. He was 52 years old, an age at which most people are still employed. His 30 percent service-connected disability did not prevent his obtaining employment. Over his wife’s objection, he chose to remain unemployed. He was capable of earning between $40,000 and $60,000 per year. Brisach v. Brisach, 1992 Va. App. LEXIS 323 (Va. Ct. App. Dec. 1, 1992).

Spousal support procedurally barred. —

Where a wife’s appellate brief did not present principles of law or argue the issue of spousal support with specificity, did not cite to controlling authority, and did not preserve the issue of future spousal support pursuant to Va. Sup. Ct. R. 5A:18, and where the trial court complied with subsection F of § 20-107.1 by identifying the factors supporting its property distribution, the wife’s appeal and request for attorney’s fees did not meet the requirements of Va. Sup. Ct. R. 5A:20(e) and were procedurally barred or without merit. Claure v. Murray, 2003 Va. App. LEXIS 498 (Va. Ct. App. Sept. 30, 2003).

Divorce must be granted first. —

Although the statute allows a circuit court to award spousal support upon the entry of a decree providing that neither party was entitled to a divorce, such a decree was not entered in this case, and the wife’s request for spousal support was also contingent on the award of a divorce to the parties. Belle v. Belle, 2016 Va. App. LEXIS 15 (Va. Ct. App. Jan. 19, 2016).

Inadequate record on appeal. —

Appellate court could not consider the husband’s argument on appeal that the trial court did not consider each of the factors enumerated in this section in determining whether to modify the wife’s spousal support award, as the husband failed to provide the appellate court with a sufficient record from which the appellate court could determine whether the wife satisfied her burden of proof that changed circumstances warranted the trial court’s modification of spousal support in a decreased amount that was less than the decrease the husband would have preferred. McClure v. McClure, 2006 Va. App. LEXIS 294 (Va. Ct. App. July 5, 2006).

Findings and conclusions. —

Husband could not claim that the trial court’s spousal support order was deficient where the trial court incorporated a transcript of its findings and conclusions from the relevant spousal support ruling into an order embodying its ruling, as the husband consented to that procedure and the husband could not invite such an error and then claim that the husband had been wronged by it. Cote v. Cote, 2007 Va. App. LEXIS 85 (Va. Ct. App. Mar. 13, 2007).

The trial court did not improperly consider evidence of the husband’s alleged affair in making the equitable distribution and spousal support awards, and no evidence was presented of its intent to punish the husband in entering the same. Brooker v. Brooker, 2007 Va. App. LEXIS 266 (Va. Ct. App. July 10, 2007).

Because the issue of spousal support was a contested matter, and as such, because the decree failed to contain or incorporate explicit written findings and conclusions supporting the award, as required by subsection E of § 20-107.1 , the award was reversed. Robinson v. Robinson, 50 Va. App. 189, 648 S.E.2d 314, 2007 Va. App. LEXIS 291 (2007).

II.Jurisdiction.

Jurisdiction in divorce suits is purely statutory. Jackson v. Jackson, 211 Va. 718 , 180 S.E.2d 500, 1971 Va. LEXIS 250 (1971); Watkins v. Watkins, 220 Va. 1051 , 265 S.E.2d 750, 1980 Va. LEXIS 200 (1980).

Jurisdiction cannot be ousted by any agreement of the parties in pais which the court itself does not adopt and approve. Capell v. Capell, 164 Va. 45 , 178 S.E. 894 , 1935 Va. LEXIS 174 (1935); Richardson v. Moore, 217 Va. 422 , 229 S.E.2d 864, 1976 Va. LEXIS 297 (1976) (see also Casilear v. Casilear, 168 Va. 46 , 190 S.E. 314 (1937)).

Thus, noncompliance with alimony decree not excused by wife’s acquiescence. —

If a wife’s active contractual consent does not excuse a husband’s noncompliance with a court’s alimony decree, a wife’s passive acquiescence does not. Richardson v. Moore, 217 Va. 422 , 229 S.E.2d 864, 1976 Va. LEXIS 297 (1976).

Full faith and credit will be accorded a foreign divorce decree as to property and support rights, as well as marital status, where the court had personal jurisdiction over the parties. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974); Newport v. Newport, 219 Va. 48 , 245 S.E.2d 134, 1978 Va. LEXIS 159 (1978).

Where a wife entered a general appearance in a foreign state when she moved a court in that state to amend its decree to include spousal support, and where her motion subsequently was denied by the state court, the action on the motion constituted a final adjudication on the merits by a court having personal jurisdiction over the wife, and therefore, that court’s decree was entitled to full faith and credit. Ceyte v. Ceyte, 222 Va. 11 , 278 S.E.2d 791, 1981 Va. LEXIS 263 (1981).

Despite the significant distinctions in the assets that could be used, the flexibility available and the duration of the award, the scheme of economic adjustment upon the dissolution of a marriage provided in another state’s community property statute sought to protect the same right as does the award of alimony in Virginia, and the decree of that state was conclusive and unmodifiable, and since those courts would not permit relitigation of the issue of support, Virginia was bound by that decision. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

The “divisible divorce” concept, under which full faith and credit is given to a foreign divorce decree as to dissolution of the marriage but not as to property or support rights, when the decree is inconsistent with separate maintenance orders entered in the forum state, is applicable when the foreign divorce has been obtained in ex parte proceedings. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

But right of support survives foreign ex parte divorce proceeding. —

The right of a wife to support is of such importance to the community, as well as to the parties, that it survives an absolute divorce obtained by her husband in an ex parte proceeding in another state. Newport v. Newport, 219 Va. 48 , 245 S.E.2d 134, 1978 Va. LEXIS 159 (1978).

The legal obligation of a husband to support his wife may not be extinguished by a court lacking personal jurisdiction of the wife. Newport v. Newport, 219 Va. 48 , 245 S.E.2d 134, 1978 Va. LEXIS 159 (1978).

Where a Nevada final decree of divorce was entered before, rather than after, permanent alimony was decreed for the wife by the trial court of Virginia, but where Nevada had no personal jurisdiction over the husband, the trial court was correct in according full faith and credit to the Nevada divorce decree insofar as that decree terminated the marital status of the parties, in decreeing that the Nevada Court was without power to adjudicate the question of alimony, and in holding that the Nevada decree did not terminate the wife’s right to support by the husband. Newport v. Newport, 219 Va. 48 , 245 S.E.2d 134, 1978 Va. LEXIS 159 (1978).

Child support jurisdiction ends when child reaches majority. —

Where the trial court failed to strike all references to support for a child from the final decree, even though she had turned 18 before the decree was entered, the child support order had to be corrected, as the trial court’s jurisdiction to order support for a child is eliminated when the child reached majority. Cutlip v. Cutlip, 8 Va. App. 618, 383 S.E.2d 273, 6 Va. Law Rep. 179, 1989 Va. App. LEXIS 113 (1989).

A pendente lite decree for spousal support does not affect the question whether a foreign court’s final decree barring support is entitled to full faith and credit in this State; however, the right to spousal support is terminated by a foreign court’s final decree barring support where that court has personal jurisdiction over the spouse. Ceyte v. Ceyte, 222 Va. 11 , 278 S.E.2d 791, 1981 Va. LEXIS 263 (1981).

Personal service must have been obtained to decree alimony. —

An adjudication of a wife’s right to alimony, whether rendered in an independent action or as an incident to a suit for divorce, brought by either husband or wife, is void both in the domestic forum and elsewhere as against a defendant over whom the court acquired no jurisdiction other than by constructive service. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Court is without in personam jurisdiction to award alimony and child support when service on husband is only by publication. Minton v. First Nat'l Exch. Bank, 206 Va. 589 , 145 S.E.2d 139, 1965 Va. LEXIS 239 (1965).

A judgment for alimony which rests upon process executed out of State upon a nonresident is invalid. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Authority to order husband to procure health insurance for wife. —

Trial court had authority to order the husband to procure health insurance for his divorced wife’s benefit where the parties were before the court in personam. Kitterman v. Kitterman, No. 0511-89-4 (Ct. of Appeals Sept. 11, 1990).

Ordering payments directly to creditors invalid. —

The trial court’s action in declaring the husband responsible for the debts listed on the debt payment schedule, and ordering him to pay the balances directly to the creditors, was a ruling beyond its power to make. Day v. Day, 8 Va. App. 346, 381 S.E.2d 364, 6 Va. Law Rep. 6, 1989 Va. App. LEXIS 75 (1989).

Where support decree, which overturned decree, was not void but erroneous. —

Where the court had jurisdiction to enter the divorce decree and, as an incident thereto, to enter the spousal support decree, that support decree was valid until overturned on appeal; the support decree was not void but, rather, was merely erroneous. Reid v. Reid, 12 Va. App. 1218, 409 S.E.2d 155, 8 Va. Law Rep. 551, 1991 Va. App. LEXIS 222 (1991).

Court of appeals had no authority to award restitution for spousal support paid pursuant to an order later reversed. Reid v. Reid, 245 Va. 409 , 429 S.E.2d 208, 9 Va. Law Rep. 1207, 1993 Va. LEXIS 60 (1993).

Effect of final divorce decree on existing separate maintenance decree. —

The inherent nature of separate maintenance is based on the parties’ status as a married entity. When a final decree of divorce terminates the marriage relationship and the trial court has the ability to properly address the issue of support, the proper forum to resolve the issue of spousal support is in the divorce case. Wife’s remedy in the instant case is to litigate her request for spousal support in her ongoing divorce case where the trial court specifically reserved jurisdiction to award full relief pursuant to this section. Scott v. Scott, 24 Va. App. 364, 482 S.E.2d 110, 1997 Va. App. LEXIS 154 (1997).

Effect of remand to reconsider equitable distribution. —

Because the trial court was required on remand to reconsider the equitable distribution award, and because the award was a factor that the court had to consider in determining spousal support, under subdivision E 8 of § 20-107.1 , the trial court was to also reconsider, on remand, the effect of its equitable distribution award upon spousal support. Scott v. Scott, 2004 Va. App. LEXIS 4 (Va. Ct. App. Jan. 6, 2004).

Case remanded to the trial court to review an equitable distribution award because the trial court classified the gain in the fair market value of a parcel of the husband’s separate property as marital property instead of the husband’s separate property. On remand, the trial court necessarily had to reconsider the award of spousal support pursuant to § 20-107.1 , as the award of spousal support could be affected by any change made in the equitable distribution award. Fitzgerald v. Fitzgerald, 2005 Va. App. LEXIS 285 (Va. Ct. App. July 19, 2005).

Contempt order for failure to pay support invalid where jurisdiction lacking in original decree. —

Although the circuit court entered a valid divorce decree, it lacked personal jurisdiction over the husband when the divorce decree was entered in 1985 and it had no power to enter an enforceable support order. Consequently, the judge’s order ruling the husband in contempt for violating the support provisions of the 1985 divorce decree was reversed and the rule to show cause was dismissed. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

III.Reservation of Right.

No authority to amend decree with nunc pro tunc order. —

Trial court had no authority to amend decree by entering a nunc pro tunc order. A court’s statutory and inherent power to amend the record nunc pro tunc could not be used to acquire subject matter jurisdiction where the decree of spousal support failed to contain a clear and explicit reservation of jurisdiction. Dixon v. Pugh, 244 Va. 539 , 423 S.E.2d 169, 9 Va. Law Rep. 536, 1992 Va. LEXIS 162 (1992).

Court may not modify award in absence of statute or reservation. —

A court may not modify an award of spousal support in a divorce decree in the absence of a statute or a clear and explicit reservation of jurisdiction to modify the spousal support provision. The Supreme Court has followed this principle, without exception, in the narrow area of spousal support provisions in divorce decrees. Dixon v. Pugh, 244 Va. 539 , 423 S.E.2d 169, 9 Va. Law Rep. 536, 1992 Va. LEXIS 162 (1992).

Modification of spousal support. —

This section did not authorize trial court to revisit issue of spousal support after entry of final divorce decree. Cossu v. Cossu, 1999 Va. App. LEXIS 357 (Va. Ct. App. June 15, 1999).

As a matter of law, an increase in a payor’s child support obligation by itself, due to a change in custody alone, cannot constitute the circumstances warranting the reduction of spousal support where the parties concede that the gross income of the payor spouse remains unchanged; it is inappropriate to premise a modification of spousal support on a reallocation of child support because § 20-108.2 (C) requires the parties’ gross incomes to be adjusted to reflect the amount of spousal support before child support can be determined. Feldman v. Feldman, 2004 Va. App. LEXIS 112 (Va. Ct. App. Mar. 16, 2004).

Where the trial court properly considered the factors for modification and a husband failed to carry his burden to prove a material change in circumstances that warranted a modification of support, the trial court’s denial of a husband’s motion to modify spousal support was not plainly wrong. Tindall v. Tindall, 2004 Va. App. LEXIS 362 (Va. Ct. App. July 27, 2004).

“Judgment by operation of law.” —

The standard for a warranted modification of spousal support is whether the moving party proves “both a material change in circumstances and that this change warrants a modification of support.” Allison v. Allison, 1996 Va. App. LEXIS 271 (Va. Ct. App. Apr. 16, 1996).

Failure to reserve right to support where requested by party is error. —

Where there is no bar to the right of spousal support, it is reversible error for the trial court, upon request of either party, to fail to make a reservation in the decree of the right to receive spousal support in the event of a change of circumstances. Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37, 3 Va. Law Rep. 1475, 1986 Va. App. LEXIS 386 (1986).

Failure to grant a reservation of the right to seek future support was an abuse of discretion, as such a grant was mandated by subsection D of § 20-107.1 when a request is made. A.O.V. v. J.R.V., 2007 Va. App. LEXIS 64 (Va. Ct. App. Feb. 27, 2007).

Need for spousal support need not be apparent at reservation. —

The need for spousal support does not need to be apparent at the time the reservation is made; husband’s need for spousal support was to be determined at such time, if ever, that he attempted to exercise his right. Crockett v. Crockett, No. 1669-89-4 (Ct. of Appeals May 22, 1990).

Reservation of right to spousal support. —

Trial court erred in applying subsection E of this section to determine whether husband was entitled to request a reservation of right to spousal support. Cline v. Cline, 1999 Va. App. LEXIS 403 (Va. Ct. App. June 29, 1999).

It was not error for the trial court to reserve the wife’s right to seek maintenance for five years, even though she made a statement at a pretrial conference that maintenance would not be an issue, as the trial court found no waiver of maintenance. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

When a former wife did not ask a trial court to reserve spousal support in its judgment of divorce, it was not error for the trial court to fail to do so. Millner v. Millner, 2004 Va. App. LEXIS 338 (Va. Ct. App. July 13, 2004).

While wife requested an award of spousal support in her pleadings, she did not request a reservation of future support in her answer, in her cross-bill of complaint, in her objections during trial court proceedings, or in her concluding argument at trial and only argued a need for current support; upon a denial of wife’s request for spousal support and absent wife’s specific request for a reservation of right to seek future spousal support, the trial court did not abuse its discretion in not awarding wife a reservation of the right to future spousal support. Hoffman v. Hoffman, 2004 Va. App. LEXIS 216 (Va. Ct. App. May 11, 2004).

Since the former husband explicitly requested a reservation of the right to future spousal support in exceptions he filed with the trial court, the trial court erred in omitting the former husband’s right to reservation of future support from the final decree. Pearson v. VanLowe, 2005 Va. App. LEXIS 91 (Va. Ct. App. Mar. 8, 2005).

Trial court properly reserved a former wife’s right to receive spousal support in the future under subsection D of § 20-107.1 because she requested spousal support in her divorce complaint, and she made her request for a reservation of support rights in her motion for reconsideration in time for the court to act. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Although the trial court declined to award spousal support, it was not error for the court to reserve the wife’s right to seek spousal support in the future. Wyatt v. Wyatt, 70 Va. App. 716, 833 S.E.2d 84, 2019 Va. App. LEXIS 210 (2019).

No reservation may be granted where no reservation is as requested. —

Husband’s contention that the trial court erred in reserving spousal support without considering all the factors contained in subsection E of § 20-107.1 was rejected, as: (1) reserving a right to receive support fell under subsection D of § 20-107.1 , and did not adjudicate the issue of an award, but merely preserved the possibility of doing so; and (2) the husband cited no authority for his claim that the trial court had to hold a full evidentiary hearing and consider the factors in subsection E before reserving support under subsection D. Harrell v. Harrell, 2005 Va. App. LEXIS 471 (Va. Ct. App. Nov. 22, 2005), rev'd in part, 272 Va. 652 , 636 S.E.2d 391, 2006 Va. LEXIS 105 (2006) (see the following case note).

Because a wife failed to request permanent or temporary spousal support in any valid pleading, and because the wife failed to comply with subdivision A 9(a) of § 20-91 , it was error for the trial court to grant a reservation of spousal support to her pursuant to subsection D of § 20-107.1 .Harrell v. Harrell, 272 Va. 652 , 636 S.E.2d 391, 2006 Va. LEXIS 105 (2006).

Error to bar support in future where no need for support at time of decree. —

The fact that a spouse free of fault is not in need of support at the time of the entry of a final decree of divorce does not mean that he or she may not be entitled to same in the future upon showing of a sufficient change of circumstances. Therefore, the trial court erred when it barred the wife from any spousal support in the future. Willis v. Willis, No. 0898-85 (Ct. of Appeals Feb. 4, 1987).

Future review not to be limited. —

Because the parties are entitled to have a spousal support award redetermined in light of new circumstances, the trial judge erred by limiting to an arbitrary future date the parties’ ability to seek review of the award due to a change in circumstances. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

When spouse requests reservation after lump sum award with no reservation. —

If there is a lump sum award and no reservation of the right to petition upon a change of circumstances, when the payee spouse requests such a reservation, the record must support why, under the circumstances of the case, the lump sum better meets the objectives of the statutory scheme than do periodic payments. Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723, 6 Va. Law Rep. 1715, 1990 Va. App. LEXIS 38 (1990).

Failure to reserve right to seek future modification of award. —

Although the trial judge did not abuse his discretion in setting the amount of a lump sum award, the small amount of the award, coupled with the uncertain nature of the factors upon which the award was based, required that the wife not be barred from the right to seek a future modification. Poliquin v. Poliquin, 12 Va. App. 676, 406 S.E.2d 401, 7 Va. Law Rep. 2943, 1991 Va. App. LEXIS 141 (1991).

Request for pendente lite support not sufficient for reservation of permanent support. —

Failure of court to make a reservation to award spousal support. —

Absent a finding by the trial court that a party seeking spousal support has committed acts which constitute grounds for divorce, it is reversible error for a court to fail to make a reservation of the court’s power to award spousal support in the event of a change of circumstances when expressly requested to do so by a party. Hall v. Hall, No. 1303-87-2 (Ct. of Appeals Nov. 1, 1988).

IV.Support and Maintenance.

A.In General.

Nature of alimony. —

A decree for alimony is something more than an order for the payment of money. A husband who has wronged his wife must continue to contribute to her support. A decree for alimony is an order compelling a husband to support his wife, and this is a public as well as a marital duty — a moral as well as a legal obligation. A decree for alimony is not founded on contract, but on the natural and legal duty of the husband to support the wife. Capell v. Capell, 164 Va. 45 , 178 S.E. 894 , 1935 Va. LEXIS 174 (1935).

Alimony is usually an allowance in money out of the husband’s estate, but not the estate itself. Lovegrove v. Lovegrove, 128 Va. 449 , 104 S.E. 804 , 1920 Va. LEXIS 115 (1920); Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Alimony is an allowance made to the wife out of the husband’s estate or income upon a decree of separation. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878); Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Although a final divorce decree stated that health insurance payments by the husband for the wife’s benefit were not in the nature of spousal support, the payments were an allowable form of spousal support and the limiting language related only to the tax implications of the payments. Tucker v. Wilmoth-Tucker, 2010 Va. App. LEXIS 199 (Va. Ct. App. May 18, 2010).

In a divorce case, where a claim for alimony is made by a wife who has been held blameless for the marital breach, the law imposes upon the husband the duty, within the limits of his financial ability, to maintain his former wife according to the station in life to which she was accustomed during the marriage. Via v. Via, 14 Va. App. 868, 419 S.E.2d 431, 9 Va. Law Rep. 38, 1992 Va. App. LEXIS 189 (1992).

An independent suit for alimony lies in equity, and the court has jurisdiction to decree the same although there is no prayer in the bill for a divorce and no jurisdiction in the courts of this State to grant the complainant a divorce. Jolliffe v. Jolliffe, 10 Va. L. Reg. 1098 (1905) (see Purcell v. Purcell, 14 Va. (4 Hen. & M.) 507 (1810); Almond v. Almond, 25 Va. (4 Rand.) 662 (1826); Spencer v. Ford, 40 Va. (1 Rob.) 648 (1843); Latham v. Latham, 71 Va. (30 Gratt.) 307 (1878)).

And the right to an independent action is now generally recognized. —

In a very decided majority of the states it is now the settled rule that jurisdiction of the courts to award alimony is not merely incidental to suits for divorce or separation, but is inherent, and that alimony may be awarded in an independent suit therefor. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Nature and purpose of suit for alimony. —

A suit for divorce is a suit to end the marital relation in whole or in part. A suit for alimony proper is to enforce the obligations incident to the continuance of the relation, and although similar inquiries arise in both suits, it is neither in form nor substance a suit for a divorce. Jolliffe v. Jolliffe, 10 Va. L. Reg. 1098 (1905).

An independent suit for alimony is not controlled by the statute applicable to divorce suits as to residence of the parties. Jolliffe v. Jolliffe, 10 Va. L. Reg. 1098 (1905).

The power of a trial court in Virginia to award alimony is incidental, inherent and express. After final decree it has power to retain jurisdiction to enter such further orders dealing therewith as may to it appear necessary and proper. Capell v. Capell, 164 Va. 45 , 178 S.E. 894 , 1935 Va. LEXIS 174 (1935); Casilear v. Casilear, 168 Va. 46 , 190 S.E. 314 , 1937 Va. LEXIS 204 (1937).

A court of equity, without regard to statute, has the absolute power to allow alimony, either in a suit for divorce, or in a suit for alimony alone. Wilson v. Wilson, 178 Va. 427 , 17 S.E.2d 397, 1941 Va. LEXIS 178 (1941).

Trial court’s authority to award support. —

Husband’s motion asked the trial court to decree the maintenance and support of the spouses, and this tracked the language of the statute, and the trial court therefore was entitled to award support as it deemed expedient; the husband’s motion was sufficient to raise the issue for adjudication, and the trial court properly awarded spousal support to wife upon that basis. Ozfidan v. Ozfidan, 2017 Va. App. LEXIS 5 (Va. Ct. App. Jan. 10, 2017).

In fixing spousal support a trial court has broad discretion which should not be interfered with by an appellate court unless it is clear that some injustice has been done. Papuchis v. Papuchis, 2 Va. App. 130, 341 S.E.2d 829, 1986 Va. App. LEXIS 250 (1986).

Wife had right to rely on pleading. —

Because the husband did not seek leave to amend his pleading that asked for support to be decreed among the spouses, his characterization of his motion as one to deny the wife spousal support was merely a nonbinding request, and the wife had a right to rely on his pleading. Ozfidan v. Ozfidan, 2017 Va. App. LEXIS 5 (Va. Ct. App. Jan. 10, 2017).

Effect of premarital agreement. —

Trial court did not err in awarding spousal support based upon assets to which wife had waived rights in the parties’ premarital agreement. The premarital agreement at issue was silent as to whether either party was entitled to spousal support upon divorce, and the wife had not waived her right to spousal support by entering into the premarital agreement. Bracken v. Bracken, 1993 Va. App. LEXIS 582 (Va. Ct. App. Nov. 30, 1993).

Trial court did not err in refusing to terminate a former spouse’s spousal support obligation because the other spouse’s waiver to the spouse’s retirement was in reference to equitable distribution and § 20-107.3 , not spousal support and § 20-107.1 .Gross v. Gross, 2013 Va. App. LEXIS 180 (Va. Ct. App. June 11, 2013).

Provisions in agreement stating that obligation was non-dischargeable in bankruptcy upheld. —

Where parties to a divorce settlement agreement set forth their mutual intent that the monetary payments, obligations, and liabilities assumed in the agreement, including spousal support, whether lump sum or periodic, would be exempt from discharge in bankruptcy, the obligations were held to be non-dischargeable. Catron v. Catron, 164 Bankr. 912, 1994 U.S. Dist. LEXIS 821 (E.D. Va.), aff'd, 43 F.3d 1465, 1994 U.S. App. LEXIS 40013 (4th Cir. 1994).

Where the bankruptcy court considered all of the evidence after a full hearing, and with respect to the mutual intent of the parties concluded that nothing in the evidence supported the finding that the parties mutually intended an obligation of any nature other than that expressed in their written agreement, and where the challenged obligations were described as not dischargeable in bankruptcy, the agreement was upheld. Hughes v. Hughes, 164 Bankr. 923, 1994 U.S. Dist. LEXIS 1732 (E.D. Va. 1994).

Divorce court not bound to approve settlement agreement. —

A divorce court is not bound to approve, in its divorce decree, a settlement agreement between divorcing parties, and is required to exercise its discretion in adjudicating property, support, and custody issues. Richardson v. Richardson, 10 Va. App. 391, 392 S.E.2d 688, 6 Va. Law Rep. 2436, 1990 Va. App. LEXIS 100 (1990), overruled in part, Flanary v. Milton, 263 Va. 20 , 556 S.E.2d 767, 2002 Va. LEXIS 16 (2002).

Agreement that provided there would be no support payments nullified by reconciliation. —

Where a separation agreement stated that the parties intended to live separate and apart on a permanent basis, and also provided that there would be no support payments made in the future, the provision waiving the right to support was, necessarily, executory; therefore, under the rule that reconciliation abrogates executory provisions, this portion of the agreement was nullified. Yeich v. Yeich, 11 Va. App. 509, 399 S.E.2d 170, 7 Va. Law Rep. 1148, 1990 Va. App. LEXIS 229 (1990).

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); Thomasson v. Thomasson, 225 Va. 394 , 302 S.E.2d 63, 1983 Va. LEXIS 235 (1983).

Award must be supported by evidence. —

Trial court erred in awarding the wife spousal support, because the wife did not put on any evidence. Beyond the limited direct examination of the wife by the husband’s attorney, the wife did nothing to prove the necessity of an award to her while the husband introduced over 20 exhibits demonstrating his financial situation. Byrd v. Byrd, 2014 Va. App. LEXIS 10 (Va. Ct. App. Jan. 14, 2014).

Pleadings must raise issue of maintenance and support. —

The provisions of this section that upon decreeing a divorce “the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses” grants to the divorce court the power to award maintenance and support, but the exercise of such power remains dependent upon the pleadings having raised the issue. Boyd v. Boyd, 2 Va. App. 16, 340 S.E.2d 578, 1986 Va. App. LEXIS 236 (1986).

Request in complaint sufficient. —

Wife’s request for a “periodic or lump sum monetary award” was a sufficient request for spousal support. Fadness v. Fadness, 52 Va. App. 833, 667 S.E.2d 857, 2008 Va. App. LEXIS 496 (2008).

Responsibility to pay permanent alimony. —

As a result of the marriage the husband incurs responsibilities from which he cannot escape. Among these responsibilities are his duty, under § 20-103 , to pay the sums necessary for the maintenance of the woman and to enable her to carry on her suit for divorce, and to pay such proper permanent alimony upon the dissolution of the marriage as the court might decree. West v. West, 126 Va. 696 , 101 S.E. 876 , 1920 Va. LEXIS 20 (1920).

Court lacks authority to order husband to contract for life insurance. Such a provision in the decree is void. Lapidus v. Lapidus, 226 Va. 575 , 311 S.E.2d 786, 1984 Va. LEXIS 297 (1984) (decided under former § 20-107 ).

Life insurance policy requirement exceeded statutory authority. —

Trial court erred by ordering the husband to obtain a life insurance policy with the wife as the beneficiary for the duration of his spousal support obligation to her because it ordered the husband to hold a $100,000 policy “in lieu of” a prior policy in the amount of $426,000, the phrase “in lieu of” and the fact that the husband would need a policy in a different amount than the prior policy signified that he would need to get a new policy in order to comply with the court order, and therefore the trial court’s directive regarding life insurance exceeded its statutory authority under this section. Creef v. Creef, 2021 Va. App. LEXIS 140 (Va. Ct. App. July 27, 2021).

Order to pay spouse’s health insurance premiums. —

Trial court did not err by ordering one spouse to pay the monthly premiums for the other spouse’s health insurance. Wroblewski v. Russell, 63 Va. App. 468, 759 S.E.2d 1, 2014 Va. App. LEXIS 241 (2014).

Where a trial court holds a hearing to determine the question of support payments, and one of the parties requests an opportunity to be present, to be heard, and to cross-examine adversary witnesses, if any, due process requires that the court afford the litigant that opportunity either by hearing the evidence itself, referring the case to a commissioner, or ordering that evidence be taken by depositions. Burts v. Burts, 227 Va. 618 , 316 S.E.2d 745, 1984 Va. LEXIS 231 (1984).

A decree for alimony is essentially different from an ordinary debt or judgment for money. It is an allowance in the nature of a partition of the husband’s property, of which the wife is entitled to a reasonable share for her maintenance. It is an order compelling a husband to support his wife, and this is a public as well as a marital duty — a moral as well as a legal obligation. The liability is not based upon a contract to pay money, but upon the refusal to perform a duty. West v. West, 126 Va. 696 , 101 S.E. 876 , 1920 Va. LEXIS 20 (1920).

A decree for alimony constitutes a lien. —

A decree for alimony payable in monthly installments during the lifetime of the beneficiary constitutes a lien in her favor upon all of the husband’s real estate from the date of such decree. Issacs v. Issacs, 117 Va. 730 , 86 S.E. 105 , 1915 Va. LEXIS 88 (1915).

Decree for alimony is a lien upon the husband’s real estate for sums due and to be due and may be enforced as other liens are enforced. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

A decree for alimony is general, in personam, and binds the defendant’s real estate as does any other decree. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Binding effect of decree on property within State. —

The other essentials to the exercise of the State’s power over real property within the State are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for alimony against an absent defendant will be valid under the same circumstances and to the same extent as if the judgment were on a debt — that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized. The court must in some way lay hands on the defendant’s property. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Decree requiring husband to pay deed of trust note was support. —

Decree provision requiring the husband to continue to pay a deed of trust note on the jointly-owned marital home until the property was sold was a matter of support under this section rather than a division of property under § 20-107.3 . Griffin v. Griffin, No. 1487-89-1 (Ct. of Appeals Oct. 30, 1990).

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 this section, 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).

Where the court erred in failing to hear evidence on the factors contained in this section and in making its judgment as to spousal support without considering those factors, the decree appealed from was reversed. Ray v. Ray, 4 Va. App. 509, 358 S.E.2d 754, 4 Va. Law Rep. 200, 1987 Va. App. LEXIS 206 (1987).

Final divorce decree was internally inconsistent with regard to spousal support where it stated that “going forward” the husband was obligated to support the wife, yet it ordered retroactive support. Tucker v. Wilmoth-Tucker, 2010 Va. App. LEXIS 199 (Va. Ct. App. May 18, 2010).

Support order pending property resolution permitted. —

The law provides for only two types of support, either pendente lite pursuant to § 20-103 or support due a former spouse pursuant to this section. The trial court has discretion to award necessary support to a spouse at any time pending the suit. Thus, so long as portions of the suit are still pending, a spouse is entitled to such support, even though the divorce has been granted. Therefore, having bifurcated the suit, the court had discretion to order support pending resolution of the property issues. Cummings v. Cummings, 1994 Va. App. LEXIS 739 (Va. Ct. App. Dec. 20, 1994).

Support award which differs from pendente lite support. —

A decree approving a contract in lieu of alimony, unlike a decree for alimony, is not a lien upon the real estate of the husband nor can it, like alimony, be enforced in the divorce proceeding. Higgins v. McFarland, 196 Va. 889 , 86 S.E.2d 168, 1955 Va. LEXIS 159 (1955); Durrett v. Durrett, 204 Va. 59 , 129 S.E.2d 50, 1963 Va. LEXIS 115 (1963); Martin v. Martin, 205 Va. 181 , 135 S.E.2d 815, 1964 Va. LEXIS 162 (1964).

Transfer in fraud of wife void. —

Immediately upon desertion entitling the wife to a divorce and to alimony as incidental thereto, there has been a breach of duty on the part of the husband for the enforcement of which the law gives her a remedy against him and his property, and if he transfers his property to another with intent to hinder, delay or defraud her in the enforcement of her right, such transfer is void. She comes within the classification of “other persons,” mentioned in former § 58-84, who are protected against being defrauded by such transfer of “what they are or may be entitled to.” It is not necessary that she should be a creditor in a technical sense. Crowder v. Crowder, 125 Va. 80 , 99 S.E. 746 , 1919 Va. LEXIS 8 (1919).

Husband’s obligation not reduced by his father’s contributions. —

The husband’s obligation was not reduced because his father was making substantial contributions for the benefit of his former wife and their children. Gramelspacher v. Gramelspacher, 204 Va. 839 , 134 S.E.2d 285, 1964 Va. LEXIS 128 (1964).

No credit for excess paid. —

Because ex-husband was required to pay spousal support in accordance with the terms of the support decree, he was not entitled to credit the amount he paid in excess of his court-ordered monthly support against his future support obligations. Accordingly, because he was not entitled to credit, he was in arrears in his spousal support. Sanford v. Sanford, 19 Va. App. 241, 450 S.E.2d 185, 1994 Va. App. LEXIS 666 (1994).

Examination of future circumstances. —

There was evidence in the record supporting the circuit court’s finding that the wife’s cognitive disability at trial was temporary in nature; therefore, the circuit court was properly examining the circumstances within the immediate or reasonably foreseeable future rather than an uncertain future circumstance. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Although a vocational rehabilitation counselor did not establish opportunities for an entry-level attorney 12-18 months from trial, the circuit court had other factors it properly relied on, including the wife’s volunteer experience, in finding that she could obtain legal employment within the five years that she had been awarded support; thus, the finding regarding wife’s employability was not based on an uncertain future circumstance but rather on circumstances that were within the immediate or reasonably foreseeable future at the time of trial. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Injunction against disposition of property disapproved. —

Where the court allowed the wife alimony it was improper to enjoin the husband from disposing of or encumbering his real estate. The sum decreed to be paid the wife from time to time should have been made a charge upon such real estate. Trimble v. Trimble, 97 Va. 217 , 33 S.E. 531 , 1899 Va. LEXIS 29 (1899).

Spousal support is not a vehicle to restore wages which were not earned when employment was given up due to marriage. Adams v. Adams, No. 0771-86-1 (Ct. of Appeals Sept 30, 1987).

On the death of either party alimony ceases. Francis v. Francis, 72 Va. (31 Gratt.) 283, 1879 Va. LEXIS 4 (1879).

Extending payments beyond death of husband. —

A court of chancery in Virginia, in entering a decree for a divorce a vinculo matrimonii, does not have the power, in the absence of any stipulation or contract between the parties, to extend alimony payments beyond the death of the husband. Foster v. Foster, 195 Va. 102 , 77 S.E.2d 471, 1953 Va. LEXIS 180 (1953) (see also Durrett v. Durrett, 204 Va. 59 , 129 S.E.2d 50 (1963)).

Fact that divorce decree ordered alimony to be paid the plaintiff “until her death or remarriage” neither enlarged nor limited the obligation of the husband. No intent to exclude the contingency that alimony would be terminated by the husband’s death was to be inferred therefrom. Foster v. Foster, 195 Va. 102 , 77 S.E.2d 471, 1953 Va. LEXIS 180 (1953).

Where a decree based upon a contract between the parties was nevertheless a decree for alimony and not a decree in lieu of alimony, as the decree specifically so stated, the wife’s right to payment terminated upon the death of the husband. Durrett v. Durrett, 204 Va. 59 , 129 S.E.2d 50, 1963 Va. LEXIS 115 (1963).

Decree held immune from collateral attack. —

A decree in a suit for divorce which contained the following provision: “The court doth further adjudge, order and decree that the marital rights of each party to this suit in and to any property owned by the other party be and the same are hereby extinguished,” was intended to exclude the wife’s right to claim dower upon the death of the husband, or an interest in his personal estate; and, as the language used was adequate to that purpose and the subject was within the jurisdictional power of the circuit court, the decree cannot be collaterally assailed. Gum v. Gum, 122 Va. 32 , 94 S.E. 177 , 1917 Va. LEXIS 81 (1917).

Refusal of restitution. —

Although the trial judge may not deny restitution because of a perceived moral duty on the part of the payor spouse to make payments, the trial judge can properly refuse restitution if restitution would involve a substantial hardship or expense. Reid v. Reid, 14 Va. App. 505, 419 S.E.2d 398, 8 Va. Law Rep. 2999, 1992 Va. App. LEXIS 146 (1992), rev'd, 245 Va. 409 , 429 S.E.2d 208, 9 Va. Law Rep. 1207, 1993 Va. LEXIS 60 (1993).

Flexibility in statutory scheme to make awards in nature of alimony. —

Virginia’s equitable distribution law on its face and as interpreted by Virginia courts authorizes what is essentially an award based on property; yet there seems to be enough flexibility in the statutory scheme for divorce courts to make awards in appropriate cases that would be actually in the nature of alimony, maintenance or support. Macys v. Macys, 115 Bankr. 883, 1990 Bankr. LEXIS 1460 (Bankr. E.D. Va. 1990).

Oral amendment of pleadings to request support. —

A trial court properly allowed a wife to orally amend her pleadings to request spousal support where the parties had pursued discovery regarding support, the husband did not request additional time to address the issue and the husband was not prejudiced by allowing the amendment. Pantazes v. Pantazes, 2000 Va. App. LEXIS 786 (Va. Ct. App. Dec. 5, 2000).

B.Amount and Payment of Award.

Periodic spousal support for lifetime of parties. —

The court is authorized to order appropriate periodic spousal support to extend for the lifetime of the parties, subject only to the termination of that order by operation of law on the remarriage of the obligee spouse. 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).

Periodic payments preferred form. —

Although this section grants the trial court discretion in deciding whether to order periodic or lump sum payments, periodic payments are the preferred form. Mosley v. Mosley, 19 Va. App. 192, 450 S.E.2d 161, 1994 Va. App. LEXIS 650 (1994).

Although a lump sum award that satisfies present and contingent needs of the parties is within the discretion of the trial judge, many courts have concluded that periodic spousal support is the preferred form of payment, not favoring lump sum support awards because such awards usually are considered final and not modifiable. Frazier v. Frazier, 2000 Va. App. LEXIS 214 (Va. Ct. App. Mar. 21, 2000).

Award of undefined duration. —

Trial court did not abuse its discretion in awarding a former wife spousal support for an undefined duration; any change in either party’s position regarding support was more properly addressed, not in speculated anticipation of change, but in relation to the current circumstances of the parties. Miller v. Cox, 44 Va. App. 674, 607 S.E.2d 126, 2005 Va. App. LEXIS 9 (2005).

Trial court properly awarded a wife spousal support with an undefined duration under subsection E as: (1) the parties had agreed that the wife would leave the workforce to take care of the children, which she had been doing for over 10 years; (2) the care of the children required the wife’s continued absence from the workforce; and (3) although the wife had a college education and worked earlier in the marriage, earning $30,000 per year at her last full-time job, she needed two years of training to become a teacher. Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008).

It was within the trial court’s discretion to award a defined duration award, and there was nothing in the record to suggest that it abused its discretion in deciding the duration for spousal support because the trial court determined that the current circumstances did not dictate a defined duration spousal support award. Sitoula v. Sitoula, 2014 Va. App. LEXIS 196 (Va. Ct. App. May 20, 2014).

Trial court did not abuse its discretion in determining that it could make an indefinite award of spousal support notwithstanding the limitation sought in the husband’s motion. Ozfidan v. Ozfidan, 2017 Va. App. LEXIS 5 (Va. Ct. App. Jan. 10, 2017).

When alimony may be made effective. —

The time permanent alimony shall commence is within the sound discretion of the court and may be made effective as of the date of the commencement of the suit. Young v. Young, 215 Va. 125 , 207 S.E.2d 825, 1974 Va. LEXIS 244 (1974).

Court not required to specify termination date for support. —

This statute does not require the trial court to specify the date of termination of a spousal support award; in fact, the language allows the trial court to order an award for an undefined duration. Joynes v. Payne, 35 Va. App. 386, 545 S.E.2d 561, 2001 Va. App. LEXIS 235 (2001).

Trial court did not err in awarding wife periodic payments for an undefined duration as it was not required to specify the date of termination of a spousal support award. Carr v. Carr, 2002 Va. App. LEXIS 279 (Va. Ct. App. May 7, 2002).

Advantages of lump sum awards. —

Under some circumstances a lump sum award may be justified and advantageous to one or both parties. One who receives the benefit of a lump sum award does not have to face the possibility that payments may diminish with changes in the payor’s circumstances and the payor is assured that he can plan for the future without facing the uncertainty that the support obligation may be increased. Jaffe v. Jaffe, 1997 Va. App. LEXIS 399 (Va. Ct. App. June 17, 1997).

Record must reflect court’s rationale for lump sum award. —

The court on appeal will uphold a lump sum award where the record clearly reflects the court’s rationale for finding that the award will adequately provide for contingencies. Frazier v. Frazier, 2000 Va. App. LEXIS 214 (Va. Ct. App. Mar. 21, 2000).

Lump sum payment. —

Generally, when courts do make lump sum spousal support awards they do so because of special circumstances or compelling reasons. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

The contractual obligation providing for a lump sum payment, whether denominated “spousal support” or “property settlement,” was fixed and the right to future deferred installments did not terminate at appellant’s remarriage. Mallery-Sayre v. Mallery, 6 Va. App. 471, 370 S.E.2d 113, 5 Va. Law Rep. 20, 1988 Va. App. LEXIS 70 (1988).

Trial court did not abuse its discretion when it declined to affirm the commissioner’s recommendation that wife be granted a lump sum in lieu of spousal support and, instead, awarded her the sum of $300 per month. Moore v. Moore, No. 1384-89-1 (Ct. of Appeals Aug. 14, 1990).

The right to the amount of a lump sum award, whether payable immediately or in installments is fixed and vested at the time of the final decree and the amount is unalterable by trial court order, remarriage, or death; it necessarily follows that where the right of the recipient spouse to the amount of the lump sum is fixed and vested, the obligation of the payor spouse is also fixed and such spouse may not be relieved of it upon a change in circumstances or by the remarriage or death of the recipient spouse. Frazier v. Frazier, 2000 Va. App. LEXIS 214 (Va. Ct. App. Mar. 21, 2000).

Trial court did not err in utilizing lump sum spousal support as part of an alleged monetary award in equitable distribution because a compelling need existed to award lump sum spousal support to the wife equal to the debt securing the marital residence as the needs of the minor children still residing in the marital home precluded the wife from being able to seek full-time employment to cover the expenses associated with maintaining the debt obligation on the marital residence; and the periodic support award fell well short of being able to cover the amount of the debt encumbering the marital residence, let alone the wife’s daily needs. Durocher v. Durocher, 2021 Va. App. LEXIS 47 (Va. Ct. App. Mar. 30, 2021).

Effect of imminent death on lump sum support award. —

The trial court did not abuse its discretion in failing to award the wife a lump sum amount of support when the evidence showed that her death was imminent. The only purpose a lump sum award would have served would be to provide her estate with the spousal support she would have received had she lived. This is not one of the special circumstances or compelling reasons for a lump sum award and such award would effectively have avoided the admonition of this section that spousal support terminates at one’s death. Bernath v. Bernath, 1994 Va. App. LEXIS 565 (Va. Ct. App. Aug. 30, 1994).

A lump sum award based on evidence showing special circumstances or compelling reasons may be final if fully adequate to meet the payee spouse’s reasonably foreseeable needs. Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723, 6 Va. Law Rep. 1715, 1990 Va. App. LEXIS 38 (1990).

Lump sum improper where future needs not reasonably foreseeable. —

The lower court erred in awarding the wife a lump sum payment where the record did not support a conclusion that the wife’s future needs and circumstances were reasonably foreseeable so that the award, when considered in connection with her other property and circumstances, would be adequate to meet her needs, regardless of a change in circumstances and where there were no special circumstances or compelling reasons for the wife to receive a lump sum award in lieu of periodic spousal support. Frazier v. Frazier, 2000 Va. App. LEXIS 214 (Va. Ct. App. Mar. 21, 2000).

Modest lump sum did not defeat right to petition additional support. —

A modest lump sum award should not defeat the right to petition for additional support in the event of changed circumstances. Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723, 6 Va. Law Rep. 1715, 1990 Va. App. LEXIS 38 (1990).

Sections 20-109 and 20-109.1 terminate only spousal support that it ordered to be paid in periodic payments and then only when there is no contractual agreement providing otherwise. These sections have no bearing upon a lump sum award of spousal support for an amount certain which is due when awarded but for which the obligation of payment is deferred by future installments. Mallery-Sayre v. Mallery, 6 Va. App. 471, 370 S.E.2d 113, 5 Va. Law Rep. 20, 1988 Va. App. LEXIS 70 (1988).

Lump sum award abuse of discretion. —

Trial court abused its discretion in awarding wife lump sum spousal support where trial court’s purpose in making the award was to hold husband financially responsible for one-half of all marital debts, which would, in effect, serve to circumvent the discharge granted by the federal bankruptcy court, and the trial court failed to address husband’s capacity to pay the lump sum award which evidence did not show present. Mosley v. Mosley, 19 Va. App. 192, 450 S.E.2d 161, 1994 Va. App. LEXIS 650 (1994).

Award of defined duration upheld. —

Trial court did not abuse its discretion in awarding the wife defined duration spousal support for 7 years, where: (1) the wife was 51 and the husband was 66 and retired; (2) the wife could make penalty-free withdrawals from her $300,000 IRA account in 7 years; and (3) the parties had comparable income from part-time work, and each was receiving $ 1000 per month from the husbands’ deferred compensation plan. Torian v. Torian, 38 Va. App. 167, 562 S.E.2d 355, 2002 Va. App. LEXIS 241 (2002).

Finding no clear abuse of discretion, the appeals court declined to disturb the trial court’s decision in a divorce case to award support to the wife for thirteen years; the wife had a law degree but had not worked since 1994, remaining at home to care for her children, and the trial court stated that the amount of the award was sufficient to offset her personal expenses while she transitioned into a new career with earning potential more suited to her advanced educational qualifications. Lannes v. Lannes, 2005 Va. App. LEXIS 176 (Va. Ct. App. May 3, 2005).

Order limiting spousal support to eight years was supported by evidence that the mother had been a teacher prior the marriage and would be able to resume her career once the children were older and more self-sufficient. A.O.V. v. J.R.V., 2007 Va. App. LEXIS 64 (Va. Ct. App. Feb. 27, 2007).

Former wife’s appeal from a spousal support award of $2,000 per month for six years was without merit and, thus, summarily affirmed under Va. Sup. Ct. R. 5A:27 because in making its award, the trial court properly considered the factors in subsection E of § 20-107.1 , including the parties’ ages, the sons’ ages, the wife’s education, and the time needed for the wife to acquire more education or training to enhance her earning capacity; although the wife argued that award was speculative as it was unknown whether she would be able to find reasonable employment in six years, those questions were inherent in many spousal support situations. Smith v. Smith, 2009 Va. App. LEXIS 184 (Va. Ct. App. Apr. 21, 2009).

Trial court did not err in ordering a husband to pay his wife monthly spousal support and maintenance for a defined period of time because the spousal support award did not require the wife to spend the assets assigned to her in equitable distribution to support herself. Likewise, there was no evidence that the trial court reduced the amount or duration of the spousal support award based upon the wife’s desertion. Burton v. Burton, 2012 Va. App. LEXIS 96 (Va. Ct. App. Apr. 3, 2012).

Trial court’s order limiting a former wife’s spousal support to 12 years did not violate the parties’ property settlement agreement, as that agreement reserved to the wife only the right to seek — not to receive — spousal support until her remarriage or cohabitation or the death of either party. Vannatta v. Vannatta, 2012 Va. App. LEXIS 366 (Va. Ct. App. Nov. 20, 2012).

On remand, the circuit court specifically explained its reasoning as to why it determined that wife could re-enter the workforce within 12-18 months of trial; thus, the court’s ruling on remand regarding duration of the spousal support award complied with the requirements of both the statute and case law. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Circuit court properly considered the statutory factors, and based on the medical evidence, the circuit court determined that whatever cognitive disabilities the wife had at trial would resolve within 12-18 months; the circuit court found that the wife’s participation in the trial and her demeanor while testifying supported the doctor’s medical opinion as to her employability within five years, and the award of support for five years was upheld on appeal. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Limiting of award held error. —

Where the record was devoid of any evidence that wife’s need or husband’s ability to provide for that need would substantially change within the immediate or reasonably foreseeable future, the trial court’s action in limiting its award to two years was error as it was not supported by the record. Thomas v. Thomas, 217 Va. 502 , 229 S.E.2d 887, 1976 Va. LEXIS 312 (1976).

There is no fixed rule. It is a matter within the discretion of the court. Yet, it is not an arbitrary but a judicial discretion, to be exercised in reference to established principles of law relating to the subject, and upon an equitable view of all the circumstances of the particular case. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Harris v. Harris, 72 Va. (31 Gratt.) 13 (1878); Cralle v. Cralle, 84 Va. 198 , 6 S.E. 12 (1887); Heninger v. Heninger, 90 Va. 271 , 18 S.E. 193 (1893); Miller v. Miller, 92 Va. 196 , 23 S.E. 232 (1895); Brown v. Brown, 2 Va. Dec. 308, 24 S.E. 238 (1896)).

The trial court has a very broad discretion in fixing the amount of alimony, and the appellate court will not interfere with such discretion unless it is clear that some injustice has been done. Lovegrove v. Lovegrove, 128 Va. 449 , 104 S.E. 804 , 1920 Va. LEXIS 115 (1920); Wilson v. Wilson, 178 Va. 427 , 17 S.E.2d 397, 1941 Va. LEXIS 178 (1941); Oliver v. Oliver, 202 Va. 268 , 117 S.E.2d 59, 1960 Va. LEXIS 217 (1960); Gramelspacher v. Gramelspacher, 204 Va. 839 , 134 S.E.2d 285, 1964 Va. LEXIS 128 (1964).

Former § 20-107 vested discretion in the trial court in awarding wife and child support, so that such awards will not be reduced on appeal absent proof from the record in the case that the amounts are, as a matter of law, “obviously excessive” or unsupported by evidence. Ingram v. Ingram, 217 Va. 27 , 225 S.E.2d 362, 1976 Va. LEXIS 236 (1976).

But the unreasonable exercise of discretion by the chancellor (now judge) will not be permitted. Under the circumstances, $15.00 per month was unreasonable. Hinshaw v. Hinshaw, 201 Va. 668 , 112 S.E.2d 902, 1960 Va. LEXIS 144 (1960).

Amount and method of paying the monetary award was a circumstance which the trial court would have been justified in considering pursuant to subdivision 8 of this section and former § 20-107.2 (2) (g) in making its original support award. Gold v. Gold, No. 1642-89-3 (Ct. of Appeals April 2, 1991) (decided prior to the 1991 amendment to § 20-107.2 ).

Amount of award is within the sound discretion of the court. —

Trial court had the discretion pursuant to subsection E of § 20-107.1 to note in awarding permanent monthly spousal support to the wife that the wife and husband’s frugal lifestyle allowed them to save and invest much of their income. Such an observation was important in not only allowing the wife a sufficient amount of spousal support to meet the wife’s monthly needs, but to allow the wife to be able to continue to save and invest. Eisert v. Eisert, 2008 Va. App. LEXIS 134 (Va. Ct. App. Mar. 18, 2008).

But court not required to quantify weight given to each factor. —

The requirement that the trial court consider all of the statutory factors does not mean that it is required to quantify or elaborate exactly what weight or consideration it has given to each factor; it does mean, however, that the court’s findings must have some foundation based on the evidence in the record. Walters v. Walters, No. 0317-90-3 (Ct. of Appeals April 2, 1991).

Although trial court did not expressly refer to or expressly analyze statutory factors set out in this section, evidence pertinent to statutory factors was received by trial court and that evidence supported court’s decision. O'Brien v. Clayton, 1999 Va. App. LEXIS 623 (Va. Ct. App. Nov. 9, 1999).

Lump sum of $600,000, $2,000 monthly support awards upheld. —

It was apparent from the transcript of the proceedings that the trial court considered all the statutory requirements of this section. The evidence proved that wife’s earning capacity, if any, was significantly diminished by her physical and mental condition, age, and extended absence from the work force. The trial court found that it would probably be very difficult to start a social work career at her age at this point in her life. In addition, wife’s support needs were approximately $4,000 per month, and husband’s continued ability to pay was established. The wife’s receipt of a lump sum award of $600,000, although considered by the court, was not dispositive of her request for spousal support. The lump sum award was a marital asset to which wife was entitled as a matter of law without regard to need or earning capacity. Because the award appeared fair and just under the circumstances of this case, it cannot be said that the trial court abused its discretion in also awarding wife $2,000 per month in support. Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d 666, 1994 Va. App. LEXIS 595 (1994).

Spousal support upheld. —

After considering the evidence adduced at trial in terms of the statutory factors enumerated in subsection E of § 20-107.1 including the needs of the parties, the standard of living established during the marriage, the duration of the marriage, the husband’s negative non-monetary contributions, and the wife’s earning capacity, the circuit court found that wife exaggerated many of her needs and that, as an experienced teacher with a master’s degree, wife had an earning capacity that had to be considered. The court further found that the parties enjoyed a “modest” standard of living during their eleven-year marriage and ordered the husband to pay the wife $3,000 per month in spousal support for a duration of five years. Lightburn v. Lightburn, 2009 Va. App. LEXIS 459 (Va. Ct. App. Oct. 13, 2009).

Trial court did not err in establishing a husband’s spousal support obligation because it reviewed the statute’s factors in detail and found that the wife showed a need for spousal support since her physical condition limited her employment skills in the future and that the husband showed an ability to provide support; the trial court calculated the husband’s income based on the evidence presented. Patterson v. Patterson, 2013 Va. App. LEXIS 240 (Va. Ct. App. Aug. 27, 2013).

Trial court did not abuse its discretion in awarding the wife $1,200 per month in spousal support, as the evidence showed that the parties worked together prior to the marriage and the wife resigned from her job after getting married so the husband could keep his job, the husband’s salary increased during the marriage while the wife’s decreased and was less than half of the husband’s at the time of the dissolution, and the wife helped raise the husband’s son. Eskridge v. Eskridge, 2015 Va. App. LEXIS 221 (Va. Ct. App. July 21, 2015).

Circuit court did not abuse its discretion in awarding wife $3,400 per month in spousal support; the circuit court reviewed the factors in the statute, each of the parties’ incomes and expenses, the parties’ standard of living, and the assets that the parties received pursuant to equitable distribution. Allen v. Allen, 2017 Va. App. LEXIS 54 (Va. Ct. App. Feb. 28, 2017).

Trial court was not exercising its discretion to modify support, and its only job was to interpret the parties’ property settlement agreement, which prohibited modification except by agreement of the parties. There was nothing in the property settlement agreement that explicitly, or even implicitly, provided for a credit of the husband’s military retirement pay against the spousal support obligation. Deluca v. Deluca, 2019 Va. App. LEXIS 122 (Va. Ct. App. May 21, 2019).

Trial court did not abuse its discretion by ordering retroactive spousal support for the wife; the trial court found that the husband limited her earning capacity by keeping her a homemaker to their six children, she had a limited ability to obtain reasonable employment in the near term, and her testimony that her income was actually a part of her husband’s salary was credible, and the evidence supported the trial court’s findings. Chaudhry v. Chaudhry, 2020 Va. App. LEXIS 27 (Va. Ct. App. Jan. 28, 2020).

Circuit court did not abuse its discretion in awarding the wife spousal support in the amount of $ 5,000 per month; the circuit court found that the wife would be employable as an attorney within 12-18 months of trial and she exaggerated her monthly needs in excess of $ 2,500. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

C.When Support and Maintenance May Be Recovered.

No alimony where marriage void ab initio. —

A marriage void ab initio is no marriage at all. The woman is never a wife and so there is no obligation upon the supposed husband to support her. Since there is no obligation to support her, of course, equity has no power to compel support by a decree for alimony. Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934).

Wife not entitled to support where she sought reconciliation with previous husband. —

Antenuptial and postnuptial contracts do not bind court. —

Bona fide antenuptial and postnuptial contracts, valid in all other respects, cannot bind the action of the court on the subject of alimony. The court will usually adopt such contract provisions, if just and reasonable; otherwise, it will not do so. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 , 1920 Va. LEXIS 29 (1920).

Antenuptial agreement did not preclude spousal support. —

Virginia law treated property interests and spousal support entitlements separately; contrary to the argument of the husband, the parties’ antenuptial agreement did not clearly preclude an award of support to the wife based on its failure to mention spousal support. Miller v. Miller, 2007 Va. App. LEXIS 340 (Va. Ct. App. Sept. 11, 2007).

Agreement concerning alimony was abrogated upon reconciliation, and therefore, wife could obtain alimony when suing for divorce. Yeich v. Yeich, 11 Va. App. 509, 399 S.E.2d 170, 7 Va. Law Rep. 1148, 1990 Va. App. LEXIS 229 (1990).

Retirement constituted change of circumstances justifying reduction of support. —

Trial judge did not abuse his discretion in finding that the husband’s retirement constituted a change of circumstances justifying the petition for reduction of spousal support, where the sums paid to the wife following the husband’s retirement were greater than they were before his retirement. McGuire v. McGuire, 10 Va. App. 248, 391 S.E.2d 344, 6 Va. Law Rep. 2301, 1990 Va. App. LEXIS 74 (1990).

Objections preserved for appeal. —

Where the commissioner’s report was favorable to the wife, she was not required to file exceptions to that report, and since she did except properly to the chancellor’s final decree in that it was less than favorable to her position, she preserved her objections on appeal. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

Reopening of decree held precluded. —

A final decree granting an absolute divorce, in which no alimony was granted and which did not specifically reserve the power to grant alimony, could not be reopened more than two years later to provide for alimony. Perry v. Perry, 202 Va. 849 , 120 S.E.2d 385, 1961 Va. LEXIS 188 (1961).

The reservation in the decree of general power to enter “further orders” or to have the cause “reinstated for good cause shown” is not sufficient to permit a final decree of absolute divorce to be reopened for the granting of alimony where none was granted originally. Perry v. Perry, 202 Va. 849 , 120 S.E.2d 385, 1961 Va. LEXIS 188 (1961).

Spousal support paid under a decree that is later vacated. —

This section authorizes a court to “make such further decree as it shall deem expedient concerning the maintenance and support of the spouses.” Thus, apart from the inherent authority to order restitution, this clause authorizes a trial judge to order, in the appropriate case, restitution of spousal support paid under a decree that is later vacated. Reid v. Reid, 14 Va. App. 505, 419 S.E.2d 398, 8 Va. Law Rep. 2999, 1992 Va. App. LEXIS 146 (1992), rev'd, 245 Va. 409 , 429 S.E.2d 208, 9 Va. Law Rep. 1207, 1993 Va. LEXIS 60 (1993).

Spousal support to be reconsidered upon reversal of equitable distribution award. —

Where the trial court committed reversible error in effecting equitable distribution, the trial court on remand was directed to reconsider an award of spousal support under subsection E of § 20-107.1 to the wife in light of the final resolution of the equitable distribution. Smith v. Thornton-Smith, 2007 Va. App. LEXIS 82 (Va. Ct. App. Mar. 6, 2007).

Trial court properly awarded spousal support to wife.

where husband had a net worth of over $3 million and wife had suffered substantial economic detriment as a result of her move to the county in which the husband resided and had a net worth of practically nothing. Lightburn v. Lightburn, 1998 Va. App. LEXIS 209 (Va. Ct. App. Apr. 14, 1998).

Trial court properly awarded the wife spousal support under § 20-107.1 factors where the wife had battled sickness and made less money that the husband. Baxani v. Baxani, 2003 Va. App. LEXIS 380 (Va. Ct. App. July 1, 2003).

Pursuant to subsection C of § 20-107.1 , the wife was entitled to an award of permanent spousal support following the wife’s divorce from the husband. The parties: (1) had been married for 12 years; (2) had two young children at the time of the divorce; (3) had substantially grown their insurance business during the marriage with the help of both parties; and (4) the husband’s earning capacity was far in excess of the wife’s earning capacity because the husband acquired complete ownership of the insurance business under the terms of the parties equitable distribution agreement. Eisert v. Eisert, 2008 Va. App. LEXIS 134 (Va. Ct. App. Mar. 18, 2008).

Spousal support awarded to a wife was proper because, contrary to the wife’s claims, trial court considered her medical conditions, healthcare needs, income, and expenses; determination of a vocational expert’s credibility and the weight to be given to his opinion were for the trial court. Van Arsdall v. Van Arsdall, 2011 Va. App. LEXIS 50 (Va. Ct. App. Feb. 15, 2011).

Sufficient evidence supported the trial court’s award of spousal support to a wife for an undefined duration because the wife presented evidence to show that she needed, and the husband had the ability to pay, spousal support; the trial court provided detailed reasoning for its decision regarding spousal support and carefully reviewed the factors in subsection E. Duva v. Duva, 2011 Va. App. LEXIS 322 (Va. Ct. App. Oct. 25, 2011).

Trial court did not abuse its discretion in awarding spousal support to a wife because the record clearly established that the wife’s medical conditions prevented her from working; the trial court heard evidence that the wife was on permanent disability, and the wife’s oncologist provided testimony regarding wife’s lymphoma and chemotherapy treatments. Patterson v. Patterson, 2013 Va. App. LEXIS 240 (Va. Ct. App. Aug. 27, 2013).

Trial court did not err in denying the ex-husband’s motion for reconsideration of the spousal support award because the trial court considered the evidence presented, as well as the statutory factors, in reaching the conclusion that the ex-wife was not currently working and had a gross income of $0; that the wife would need additional schooling to obtain a job; and that the trial court did not have any evidence before it as to when the wife might get a job, and what type of job she would ultimately qualify for; thus, the evidence presented supported the trial court’s conclusion to award the wife spousal support. Clark v. Clark, 2017 Va. App. LEXIS 187 (Va. Ct. App. Aug. 1, 2017).

In a divorce case, the circuit court properly awarded the wife spousal support in the amount of $6,000 per month for five years because it gave a sufficient written explanation under Va. Code Ann. § 20-107.1 (F) and did not need to make a written factual finding for each consideration relevant to determining the award. The circuit court did not abuse its discretion by concluding that the circumstances merited fashioning the award as a lump sum, because the wife would need to move out of her current home and needed funds to afford a new residence. Richardson v. Richardson, 2021 Va. App. LEXIS 184 (Va. Ct. App. Oct. 19, 2021).

Awarding of separate maintenance is largely in the discretion of the court. Plattner v. Plattner, 202 Va. 263 , 117 S.E.2d 128, 1960 Va. LEXIS 216 (1960).

The discretion given a trial court as to whether it will or will not enter a decree providing for the maintenance of either of the parties, when no divorce is awarded, is a judicial discretion which a trial court, in the proper case, must exercise. Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

The determination whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court and will not be disturbed on appeal unless it is clear that some injustice has been done. Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208 (1986), In accord with third paragraph in bound volume. See Griffin v. Griffin, No. 1487-89-1 (Ct. of Appeals Oct. 30, 1990).

While it is clearly error for a court to consider only one of the statutory factors contained in this section, the court did not err in this regard where the final order reflected that the modification was deemed to be reasonable and fair considering the facts and circumstances existing at that time. Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208, 1986 Va. App. LEXIS 237 (1986).

When judge must award support and maintenance. —

Where the wife establishes her need for support and the husband’s ability to provide it, and she is not shown to be guilty of misconduct entitling her husband to a divorce, the judge has no choice but to award the wife support and maintenance. Thomas v. Thomas, 217 Va. 502 , 229 S.E.2d 887, 1976 Va. LEXIS 312 (1976).

Divorce under subdivision A 9 of § 20-91 does not relieve party of obligation to support wife. —

Although a party is granted the divorce under the provisions of subdivision A 9 of § 20-91 , 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).

Findings of judge entitled to weight of jury verdict. —

When judge hears the evidence ore tenus, his findings are entitled to the weight of a jury verdict and will not be disturbed unless plainly wrong or without evidence to support them. Thomas v. Thomas, 217 Va. 502 , 229 S.E.2d 887, 1976 Va. LEXIS 312 (1976).

A trial court is vested with broad discretion in fixing the amount of spousal support, and its decision will not be disturbed unless it is clear that some injustice has been done. This is especially the case when the court hears evidence ore tenus; its findings are entitled to the weight of a jury verdict and will not be disturbed unless they are plainly wrong or without evidence to support them. Lapidus v. Lapidus, 226 Va. 575 , 311 S.E.2d 786, 1984 Va. LEXIS 297 (1984) (decided under former § 20-107 ).

The chancellor (now judge) considering an application for spousal support has a two-step determination to make. He must first ascertain from the record whether a party’s claim for spousal support is barred by the existence of a marital fault amounting to a statutory ground of divorce under subdivisions A(1), A(3) and A(6) of § 20-91 or § 20-95 . If none exists, he proceeds to the second step which involves consideration of the relative needs and abilities of the parties. Here, he is guided by consideration of the specific factors required by this section. Where the chancellor (now judge) has given due consideration to each of these factors, as shown by the evidence, his determination as to spousal support will not be disturbed except for a clear abuse of discretion. Thomasson v. Thomasson, 225 Va. 394 , 302 S.E.2d 63, 1983 Va. LEXIS 235 (1983).

The determination of spousal support is a two-step process: First, the court must determine whether either of the parties is barred from receiving support due to the existence of a marital fault amounting to a statutory ground for divorce; and, second, if no-fault ground exists, then the court must weigh the relative needs and abilities of the parties in accordance with the statutory factors enumerated in this section. Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E.2d 208, 1986 Va. App. LEXIS 237 (1986).

D.Award Barred by Marital Fault.

Equal misconduct by both parties. —

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).

In considering whether to award support, the court must take into account the factors that contributed to dissolution of the marriage, including adultery. The husband’s adultery, which the trial court found led to dissolution of the marriage, supported the threshold determination under this section that the wife was entitled to spousal support. Theismann v. Theismann, 22 Va. App. 557, 471 S.E.2d 809, 1996 Va. App. LEXIS 443 (1996).

This section prohibits chancellor from ordering spousal support payments be made to party declared to be at fault on ground of desertion even though other party, by contract, may have agreed to make such payments but objects to entry of such order since language contained in this section explicitly prohibits award of spousal support to party at fault and wording of § 20-109.1 , when considered in context of divorce decree where one party is found to have one of specified fault-based grounds for divorce does not explicitly permit trial court to enter award of spousal support to spouse at fault over objection of favored spouse and contrary to mandate of this section; while statutes are related as to subject matter, related statute cannot be utilized to create doubt in otherwise clear statute. Seehorn v. Seehorn, 7 Va. App. 375, 375 S.E.2d 7, 5 Va. Law Rep. 820, 1988 Va. App. LEXIS 124 (1988).

Clean hands doctrine does not apply to the determination of a spousal support award pursuant to this section. Huger v. Huger, 16 Va. App. 785, 433 S.E.2d 255, 10 Va. Law Rep. 53, 1993 Va. App. LEXIS 315 (1993).

Fault in the breakup of a marriage, or the lack thereof may affect a spousal support award. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

The husband’s desertion and the wife’s blamelessness, as determined by the chancellor, provided ample support for the trial court’s determination that the wife was entitled to a spousal support award pursuant to this section. Wilmott v. Wilmott, 1997 Va. App. LEXIS 47 (Va. Ct. App. Feb. 4, 1997).

Egregious conduct toward spouse. —

Where the record established egregious conduct by a husband toward his wife, in the absence of marital fault by her, this section clearly permitted the court, after weighing and considering the husband’s misconduct, which was the precipitative event in the separation, and related evidence, to conclude that the husband was not entitled to spousal support. Nass v. Nass, 2001 Va. App. LEXIS 187 (Va. Ct. App. Apr. 10, 2001).

Effect of adultery. —

A party who has committed adultery will not be awarded spousal support unless the trial court finds by clear and convincing evidence that denial of support would constitute a manifest injustice, based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties. Lee v. Lee, 2000 Va. App. LEXIS 689 (Va. Ct. App. Oct. 3, 2000).

Application of the exception to the statutory bar, under subsection B of § 20-107.1 , against an award of spousal support to an adulterous spouse had to be based on clear and convincing evidence finding that a denial of support would be a manifest injustice based on both: (1) the relative degrees of fault attributable to the parties; and (2) the economic disparities between the parties. Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833, 2003 Va. App. LEXIS 192 (2003).

Clear and convincing evidence allowed the trial court to apply the statutory exception, in subsection B of § 20-107.1 , to the bar against an award of spousal support to an adulterous spouse, because the husband’s 20-year history of profane and base behavior toward the wife and the parties’ children, when compared to the wife’s adultery, allowed the assignment to the husband of a greater degree of fault, and the parties’ economic circumstances were clearly disparate, given the husband’s high-paying job with a family company and the wife’s minimal employment. Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833, 2003 Va. App. LEXIS 192 (2003).

When a trial court was considering whether to apply the exception, in § 20-107.1 B, to the statutory bar of an award of spousal support to an adulterous spouse, the statute did not require an enumeration of the various aspects of fault attributable to a spouse, when determining the “respective degrees of fault” factor, but the statute did require a weighing of the respective degrees of fault by considering the essential question of culpability for the marriage’s demise. Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833, 2003 Va. App. LEXIS 192 (2003).

Award of a reservation of spousal support was reversed because adultery barred an award of support unless a narrow exception applied and there was no evidence that a denial of spousal support and maintenance would constitute a manifest injustice; therefore, the trial court abused its discretion when it awarded a reservation of spousal support for the ex-wife. Winebarger v. Winebarger, 2003 Va. App. LEXIS 433 (Va. Ct. App. Aug. 12, 2003).

In a divorce trial wherein the parties were granted a divorce and the wife was awarded $2,500 per month in spousal support, the husband was entitled to a new trial on appeal because the trial court erred by sustaining the wife’s objections to the husband’s interrogatories and striking the husband’s amended answer asserting adultery on the part of the wife, because the parties’ postnuptial agreement, which the wife had requested to have been incorporated into an order and which she had attached to her complaint, specifically barred spousal support to the wife if adultery was shown; therefore, the issue of adultery was relevant to the suit. Hall v. Hall, 2005 Va. App. LEXIS 401 (Va. Ct. App. Oct. 11, 2005).

While the husband was on hazardous military duty in Iraq, his wife began an extramarital affair, and despite her assurance that she would end the affair and remain in New York with the husband’s family, promptly upon his return to Iraq she returned to Virginia and resumed her affair with her paramour. Her faithless behavior, combined with the parties’ economic posture, supported the trial court’s denial of the wife’s request for spousal support. Polemeni v. Polemeni, 2007 Va. App. LEXIS 37 (Va. Ct. App. Feb. 6, 2007).

Trial court did not err in denying spousal support to appellant wife under § 20-107.1 as the wife committed adultery, received substantial property from the divorce, and was in good health. Ulka Ghulam v. Ghulam Ali Sidiqi, 2007 Va. App. LEXIS 452 (Va. Ct. App. Dec. 18, 2007).

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. Consequently, the spouse was not barred from receiving spousal support based on the allegation that the spouse engaged in post-separation adultery. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Statute does not require that a circuit court actually enumerate the various aspects of fault attributable to one party or the other, and thus the circuit court was not required to provide a step-by-step account of how it arrived at the decision that the manifest injustice exception should apply, but the record on appeal still must provide a basis for concluding that the circuit court’s determination was based on the relevant statutory factors and the required burden of proof of clear and convincing evidence. Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687, 2015 Va. App. LEXIS 145 (2015).

Decision to award a reservation of spousal support to the wife was reversible error because the record did not show that the circuit court actually determined that invoking the spousal support bar would cause a manifest injustice based on an assessment of the parties’ respective degrees of fault and the parties’ relative economic circumstances; absent any factual findings related to the factors, the decision to apply the manifest injustice exception was not based on clear and convincing evidence. Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687, 2015 Va. App. LEXIS 145 (2015).

There is no reason to conclude that an adulterous spouse who requests a reservation of spousal support, as opposed to a periodic or lump sum award of spousal support, should be exempt from the burden of proving a manifest injustice. Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687, 2015 Va. App. LEXIS 145 (2015).

Two components of manifest injustice under this statute are conjunctive, not disjunctive, and neither requires proof by clear and convincing evidence independently. Rather, it is the confluence of both streams of evidence — of fault and of relative economic circumstances — that must rise, by the clear and convincing standard, to constitute manifest injustice. Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535, 2016 Va. App. LEXIS 101 (2016).

Adulterous wife should not have received support based on the exception in this statute because a disparity in earning capacity was not sufficient to show a manifest injustice; the wife’s adultery was the primary cause of the divorce, she had assets worth more than 1.3 million, and she had a college degree. Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535, 2016 Va. App. LEXIS 101 (2016).

Trial court’s ruling precluding the husband from introducing evidence of wife’s adultery for any purpose at any deposition, hearing, or trial was in error, and the trial court failed to consider the wife’s adultery, one of the mandatory factors under this section. Chaney v. Karabaic-Chaney, 71 Va. App. 431, 837 S.E.2d 76, 2020 Va. App. LEXIS 16 (2020).

Spousal support to wife held proper despite wife’s adultery. —

Trial court was correct in affirming the arbitrator’s determination that each spouse had a ground of divorce against the other (husband’s claim that wife committed adultery and wife’s claim that husband’s incarceration gave rise to an abandonment), that recrimination was a valid defense, and that spousal support to wife was proper despite wife’s adultery. Bandas v. Bandas, 16 Va. App. 427, 430 S.E.2d 706, 9 Va. Law Rep. 1369, 1993 Va. App. LEXIS 159 (1993).

There was no bar to an award of spousal support to the wife where the husband did not allege adultery by wife as a ground for divorce and, while the commissioner found that marital infidelities by both parties during the marriage contributed to the dissolution of the marriage, the commissioner made no finding concerning adultery by wife. Ripplinger v. Ripplinger, No. 0451-98-2 (Ct. of Appeals Sept. 15, 1998).

Trial court did not err in awarding wife spousal support despite her adulterous conduct. Foreman v. Ketchum, No. 2092-98-4 (Ct. of Appeals July 27, 1999).

A wife was entitled to an award of spousal support notwithstanding her post-separation adultery where the parties were married for twenty-four years, the wife had supported the family when the husband was between jobs, which had occurred on a regular basis early in the marriage, the wife’s post-separation adultery did not contribute to the dissolution of the marriage, the husband admitted that he had also committed adultery on or about the date of the parties’ separation, and the husband had greater earning capacity than the wife. Lee v. Lee, 2000 Va. App. LEXIS 689 (Va. Ct. App. Oct. 3, 2000).

Although the trial court’s finding that the wife did not engage in adultery was not supported by the evidence, its award of alimony was proper, under subsection B of § 20-107.1 , because the evidence showed, by clear and convincing evidence, that both parties contributed to the breakup of the marriage and that denying spousal support to the wife would be a manifest injustice based on the respective degrees of fault attributable to the parties as well as their disparate financial circumstances. Zasler v. Zasler, 2003 Va. App. LEXIS 470 (Va. Ct. App. Sept. 9, 2003).

Spousal support was properly ordered under the manifest injustice test of subsection B of § 20-107.1 , even though the wife committed post-separation adultery, where the trial court determined that the wife was not more culpable for the breakdown of the marriage than the husband, who had told the wife he wanted to live alone and had presented her with a property settlement in contemplation of divorce; as to the economic factor of the manifest injustice equation, the wife’s earning capacity and her assets were substantially less than those of the husband. Clear and convincing evidence supported the trial court’s finding that a denial of spousal support would be manifestly unjust. Porter v. Porter, 2004 Va. App. LEXIS 328 (Va. Ct. App. July 13, 2004).

It was not an abuse of discretion to award a wife spousal support, despite her adultery, because clear and convincing evidence showed a failure to do so would be a manifest injustice, as (1) proof of the husband’s contribution to the demise of the marriage did not have to constitute legal grounds for divorce, and (2) the husband’s testimony corroborated the wife’s claim that his inattention contributed to the gradual breakdown of the marriage. Pattillo v. Pattillo, 2018 Va. App. LEXIS 144 (Va. Ct. App. May 29, 2018).

A spouse may be free from legal fault in breaking off cohabitation, and hence entitled to support and maintenance, even though she cannot establish that the 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).

Spousal support barred. —

This code section barred spousal support if there exists in such spouse’s favor a ground of divorce under the provisions of subdivisions A(1), A(3) or A(6) of § 20-91 . Hurt v. Hurt, 16 Va. App. 792, 433 S.E.2d 493, 10 Va. Law Rep. 71, 1993 Va. App. LEXIS 512 (1993).

Misconduct forfeits alimony. —

A divorced wife has no right to alimony if the divorce was granted to her husband because of her misconduct. McClung v. McClung, 206 Va. 782 , 146 S.E.2d 195, 1966 Va. LEXIS 149 (1966) (see also House v. House, 102 Va. 235 , 46 S.E. 299 (1904)).

Alimony will not be awarded a wife when the husband is granted a divorce because of her fault or misconduct. Mason v. Mason, 209 Va. 528 , 165 S.E.2d 392, 1969 Va. LEXIS 137 (1969).

Provided misconduct constitutes grounds for divorce. —

A wife forfeits her right to maintenance and support from her husband only if her misconduct constitutes grounds for divorce. Rowand v. Rowand, 215 Va. 344 , 210 S.E.2d 149, 1974 Va. LEXIS 289 (1974).

Section does not preclude support in instances of desertion. —

This section does not preclude an award of spousal support in instances of desertion. Preston v. Preston, 1998 Va. App. LEXIS 17 (Va. Ct. App. Jan. 20, 1998).

Desertion by wife. —

Where husband is entitled to a decree for a divorce a vinculo matrimonii on the ground of desertion, the court upon decreeing the divorce cannot allow the wife alimony out of the husband’s estate. Harris v. Harris, 72 Va. (31 Gratt.) 13, 1878 Va. LEXIS 24 (1878).

Where the evidence supported the provisions of the decree of the trial court that the leaving of the marital home by wife was willful and with intention to abandon husband, the judgment denying spousal support to wife and granting husband a divorce would be affirmed. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d 535, 3 Va. Law Rep. 1, 1986 Va. App. LEXIS 293 (1986).

A finding of desertion by the wife does not bar an award of spousal support to her. Margoupis v. Margoupis, 1999 Va. App. LEXIS 113 (Va. Ct. App. Feb. 23, 1999).

It was not an abuse of discretion to deny a wife’s request for spousal support, because: (1) the evidence was sufficient to prove that the wife’s misconduct constituted desertion and constructive desertion; (2) the wife’s assault on the husband after they had separated could be considered; and (3) regarding the wife’s argument that the trial court failed to consider the economic circumstances of the parties and other factors, the wife could not be heard to complain of actions by the trial court that the wife invited the trial court to take. Morgan v. Watkins, 2007 Va. App. LEXIS 412 (Va. Ct. App. Nov. 13, 2007).

A wife who has voluntarily abandoned her husband should not have a decree for her separate maintenance, unless her abandonment of him was, without fault, rendered necessary for her safety and happiness, and was consistent with social order and public policy. Haynor v. Haynor, 112 Va. 123 , 70 S.E. 531 , 1911 Va. LEXIS 60 (1911).

A wife cannot elect to desert her husband’s home and live separately from him and so destroy the matrimonial relationship and then expect the courts to direct him to pay her maintenance and support, unless she can show such conduct on his part to justify her relief from the matrimonial status. Stolfi v. Stolfi, 203 Va. 696 , 126 S.E.2d 923, 1962 Va. LEXIS 208 (1962).

Husband’s adultery and desertion and wife’s blamelessness, as determined by the chancellor, readily and adequately supported the chancellor’s threshold determination pursuant to this section that wife was entitled to a spousal support award. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Denial of spousal support not error. —

Because this section as in effect at the time of the proceedings in 1988 would bar any award of spousal support where desertion was proven, the chancellor’s denial of spousal support was not error where desertion was proven but the divorce was not granted on that ground. Lowe v. Lowe, 1994 Va. App. LEXIS 252 (Va. Ct. App. May 3, 1994).

Trial court’s finding that denial of spousal support would be unjust to the wife was supported by the record where the court considered the adulterous conduct of both parties, the ten-year length of the marriage, wife’s contributions to the marriage, the lifestyle of the parties during the marriage, and the parties relative economic resources and needs. Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135, 1997 Va. App. LEXIS 763 (1997).

Wife’s post-separation adultery did not preclude her from being awarded spousal support, both husband and wife accepted that the marriage had been irretrievably lost prior to wife’s acts of adultery, and wife’s earning capacity and assets were substantially less than those of her husband. Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294, 9 Va. Law Rep. 1077, 1993 Va. App. LEXIS 72 (1993).

Evidence of misconduct of the wife through post-separation cohabitation with another man will not preclude an award of spousal support if other evidence establishes that support is warranted. Woodward, II v. Woodward, 1998 Va. App. LEXIS 254 (Va. Ct. App. Apr. 28, 1998).

Alimony denied where wife earned salary ample for her support. —

Where a wife was an educated woman well equipped to earn her own livelihood, and for many years had earned a salary ample to maintain her in the station in life to which she had been accustomed, both before and during her marriage, an award of alimony of $150 a month was excessive and the facts and circumstances justified the disallowance of any alimony. Baytop v. Baytop, 199 Va. 388 , 100 S.E.2d 14, 1957 Va. LEXIS 202 (1957).

And where wife was well-to-do. —

Though a wife was granted a divorce on the ground of cruelty, and the custody of her child, the court refused to compel the husband to contribute to the support either of his said wife or of his child, she being well-to-do. Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887).

But where wife is possessed of a sizeable estate, the law does not require her to invade that estate to relieve the obligation of her former husband whose actions have brought an end to their marriage. Klotz v. Klotz, 203 Va. 677 , 127 S.E.2d 104, 1962 Va. LEXIS 205 (1962).

Chancellor abused discretion where wife showed need and no misconduct, but still denied support. —

Where the wife has established her need for support and the husband’s ability to provide it, and she was not shown to be guilty of misconduct entitling her husband to a divorce, the chancellor abused his discretion when he denied the wife support and maintenance. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

Failure to exercise discretion held reversible error. —

Where the evidence established that husband willfully, and without just cause, deserted his wife, and that she had no reasonable expectation that he would ever be willing to resume marital relations with her, and the wife appeared to be an innocent party, failure to exercise the judicial discretion vested by the statute in the court constituted reversible error. Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

Wife not entitled to support where she sought reconciliation with previous husband. —

The fact that the commissioner’s report specifically mentioned husband’s fault was not supportive of husband’s assertion that his fault constituted the sole basis of the award. This section requires the court to first determine whether the party seeking support is barred by marital fault which would entitle the other party to a divorce. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

Wife’s misconduct resolved in divorce decree could not be relitigated. —

The doctrine of res judicata barred the husband’s appeal of the spousal support award on the sole ground that the award was invalid because his wife was guilty of desertion, since the issue of the wife’s alleged misconduct was finally and conclusively resolved by the court’s ruling on the final decree of divorce and could not be relitigated at the hearing on the issues of spousal support and equitable distribution. Hall v. Hall, 9 Va. App. 426, 388 S.E.2d 669, 6 Va. Law Rep. 1331, 1990 Va. App. LEXIS 25 (1990).

Award to wife who had committed adultery upheld. —

Award of $10,080 in spousal support payable to wife over a three year period in order to provide her with funding sufficient to cover her medical expenses and adequate time to procure medical benefits and full time employment was supported by clear and convincing evidence and was not an abuse of discretion, where wife had undergone back surgery, had lose her full time job and was only working part time, and had been unable to secure health insurance through her employment, despite the fact that divorce had been granted to husband on grounds of wife’s adultery. Calvin v. Calvin, 31 Va. App. 181, 522 S.E.2d 376, 1999 Va. App. LEXIS 680 (1999).

Award upheld when not based solely on constructive desertion. —

Where the trial court did not rely solely upon a husband’s constructive desertion and the husband did not preserve his claims, the trial court did not abuse its discretion in awarding lump sum alimony and attorneys’ fees to the wife. Turner v. Turner, 2003 Va. App. LEXIS 258 (Va. Ct. App. Apr. 29, 2003).

Wife legally deserted marriage and forfeited her right to spousal support, and wife’s 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).

E.Factors to be Considered.

Legislative intent. —

Under this section the trial court is to consider as a factor, in setting the amount of spousal support, the earning capacity of the “parties.” A plain meaning of the word “parties” indicates that the legislature intended to include the earning capacity of the payee spouse as well as the payor. Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675, 7 Va. Law Rep. 221, 1990 Va. App. LEXIS 153 (1990).

Amount a matter within the sound discretion of the trial court. —

A spouse’s entitlement to support and the amount of the award are matters within the sound discretion of the trial court. Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72, 1996 Va. App. LEXIS 529 (1996).

In determining the amount of an award, the court must consider all of the factors set forth in this section; the court’s decision is presumed correct and will not be disturbed unless some injustice has been done. Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72, 1996 Va. App. LEXIS 529 (1996).

Order for husband to pay wife $700 monthly support for six years instead of for an indefinite duration and not to pay her attorney’s fees was not an abuse of discretion, since: (1) the trial court considered all § 20-107.1 factors for which it had evidence; (2) the husband earned significantly more than the wife, made the majority of the monetary contributions to the family, and provided an equal share of the non-monetary contributions; (3) the wife was healthy and able to work; (4) no special circumstances existed; (5) the parties had led a comfortable, but not an exorbitant lifestyle; and (6) the husband presented evidence to put into doubt some of the wife’s claimed living expenses. Holland v. Holland, 2004 Va. App. LEXIS 602 (Va. Ct. App. Dec. 7, 2004).

Trial court did not abuse its discretion in modifying the spousal support order and awarding the wife $3,500 per month in light of the parties’ marital lifestyle and the wife’s demonstrated financial need because the trial court found that the parties had experienced significant ups and downs in their financial condition during their marriage, but, overall, they lived quite comfortably. The trial court also considered the wife’s significant debts and legal expenses following the divorce and subsequent termination of the original support order, and the husband’s increased financial success when it modified the spousal support order. Grad v. Stone, 2007 Va. App. LEXIS 263 (Va. Ct. App. July 17, 2007).

Because the evidence showed that the trial court considered all the statutory factors and noted that based on the length of the parties’ marriage, the husband’s fault in the dissolution of the marriage, the wife’s needs, and the husband’s ability to pay, no abuse of discretion resulted from the award of spousal support entered. Gibbs v. Gibbs, 2008 Va. App. LEXIS 72 (Va. Ct. App. Feb. 12, 2008).

After considering the factors enumerated in § 20-107.1 , the circuit court did not abuse its discretion in awarding a wife $2,000 per month in spousal support. Elliott v. Elliott, 2022 Va. App. LEXIS 52 (Va. Ct. App. Mar. 1, 2022).

This section directs the trial court to consider the parties’ earning capacities as a factor in setting the amount of spousal support; the one example of a highly relevant factor in determining whether to award spousal support would be a summary providing important indications of the present earning capacity of the parties. Via v. Via, 14 Va. App. 868, 419 S.E.2d 431, 9 Va. Law Rep. 38, 1992 Va. App. LEXIS 189 (1992).

Need for bankruptcy inappropriate basis for determining amount. —

The commissioner’s view that the wife was better served by filing for bankruptcy protection was an inappropriate basis for failing to consider the amount of marital debt in assessing a support award. Goetz v. Goetz, 7 Va. App. 50, 371 S.E.2d 567, 5 Va. Law Rep. 232, 1988 Va. App. LEXIS 89 (1988).

The applicable rule in awarding alimony requires a husband, within the limits of his financial ability, to maintain his former wife in the manner to which she was accustomed during the marriage. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975); Butler v. Butler, 217 Va. 195 , 227 S.E.2d 688, 1976 Va. LEXIS 258 (1976).

It is the legal and moral duty of a husband to support his wife and family consistent with his financial ability, according to the station in life to which he has accustomed them to live. In fixing the amount of alimony and support money, there must be taken into consideration, along with all of the other circumstances of the particular case, the needs of the wife and children, their ages and physical condition, and the financial ability of the husband to pay. Oliver v. Oliver, 202 Va. 268 , 117 S.E.2d 59, 1960 Va. LEXIS 217 (1960); Gramelspacher v. Gramelspacher, 204 Va. 839 , 134 S.E.2d 285, 1964 Va. LEXIS 128 (1964).

A wife who has been awarded a divorce and held blameless for the marital breach is entitled to be supported by her former husband, within the limits of his ability, according to the station in life to which she was accustomed during the marriage. The alimony should be fixed with regard to the wife’s age, ability to earn, and needs, balanced against the husband’s ability to pay, considering his income and ability to earn. The wife is not required to invade her separate estate to relieve the obligation of the husband. Klotz v. Klotz, 203 Va. 677 , 127 S.E.2d 104, 1962 Va. LEXIS 205 (1962).

The general rule in respect to alimony is that the wife is entitled to support corresponding to her condition in life and the fortune of her husband. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Harris v. Harris, 72 Va. (31 Gratt.) 13 (1878); Cralle v. Cralle, 84 Va. 198 , 6 S.E. 12 (1887); Miller v. Miller, 92 Va. 196 , 23 S.E. 232 (1895); Brown v. Brown, 2 Va. Dec. 308, 24 S.E. 238 (1896)).

A wife who is entitled to support has the right to be maintained in the manner to which she was accustomed during the marriage, but the court must balance her needs against the husband’s ability to pay. In making its findings, the trial court should consider all factors enumerated in this section. Lapidus v. Lapidus, 226 Va. 575 , 311 S.E.2d 786, 1984 Va. LEXIS 297 (1984) (decided under former § 20-107 ).

Spouses deemed entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse’s financial ability to pay. Floyd v. Floyd, 1 Va. App. 42, 333 S.E.2d 364, 1985 Va. App. LEXIS 57 (1985).

Spouses entitled to support have the right to be maintained in the manner to which they were accustomed during the marriage, but their needs must be balanced against the other spouse’s financial ability to pay. Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72, 1996 Va. App. LEXIS 529 (1996).

Duty to maintain blameless party according to accustomed station in life. —

Where a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Standard of living requirement and outstanding debts. —

Requirement that chancellor consider “the standard of living established during the marriage” pursuant to this section is not an authorization to fix a spousal support award so that the receiving spouse can satisfy outstanding debts on the marital property conveyed to that spouse pursuant to § 20-107.3 .Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Evidence supported a trial court’s finding that the parties’ standard of living was a relevant factor in determining spousal support where the record showed there was the promise of and financial means for extensive travel, and the parties did travel extensively, although not always together; they had access to two high value homes and wanted for nothing during the marriage; and the former wife had trouble paying expenses since their separation and lived in an apartment costing her $850 per month. Smith v. Thornton-Smith, 2008 Va. App. LEXIS 62 (Va. Ct. App. Feb. 5, 2008).

In determining the appropriateness and amount of a lump sum award, trial courts must consider, in conjunction with those facts specified in this section, the recipient spouse’s need for such an award. Kaufman v. Kaufman, 12 Va. App. 1200, 409 S.E.2d 1, 8 Va. Law Rep. 587, 1991 Va. App. LEXIS 224 (1991).

In fixing the amount of alimony, the court must look to the financial needs of the wife, her age, physical condition and her ability to earn, and balance against these circumstances the financial ability of the husband to pay, considering his income and ability to earn. The amount awarded must, in any event, be fair and just under all the circumstances of the case. Via v. Via, 14 Va. App. 868, 419 S.E.2d 431, 9 Va. Law Rep. 38, 1992 Va. App. LEXIS 189 (1992).

Factors for chancellor to consider. —

In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties, guided by the factors that are set forth in this section. Joynes v. Payne, 35 Va. App. 386, 545 S.E.2d 561, 2001 Va. App. LEXIS 235 (2001).

Requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors, but this does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors; it does mean, however, that the court’s findings must have some foundation based on the evidence presented; therefore, in a determination involving spousal support, if the trial court’s findings do not have evidentiary support in the record, then the trial court has abused its discretion. Knepp v. Niece, 2003 Va. App. LEXIS 29 (Va. Ct. App. Jan. 28, 2003).

Trial court properly applied the standard of living established during the marriage as a factor to consider in his decision regarding the husband’s motion to reduce his spousal support obligation, and the limited evidence as to the parties’ standard of living did not show that the wife’s standard of living exceeded that established during the marriage. Furthermore, the trial court also considered the substantial increase in both parties’ incomes; therefore, the trial court did not err by denying the husband’s motion. Peck v. Peck, 2003 Va. App. LEXIS 635 (Va. Ct. App. Dec. 9, 2003).

Former wife’s modification of spousal support request was granted where it properly considered the parties’ earning capacities, the wife’s need for increased support, the cost of insurance premiums that the wife was required to maintain pursuant to the parties’ divorce decree, the consumer price index, and the wife’s share of the husband’s military retirement benefits. Jordan v. Jordan, 2004 Va. App. LEXIS 132 (Va. Ct. App. Mar. 30, 2004).

Trial court properly considered the factors under this section, instead of considering only the current financial circumstances of the parties, when denying a husband’s motion to modify spousal support since the text of § 20-109 did not prohibit the court from considering the factors under this section and broadly mentioned that the court could modify spousal support as the circumstances made proper; no case law stated it was error to consider the factors under this section. Slye v. Slye, 2014 Va. App. LEXIS 26 (Va. Ct. App. Feb. 4, 2014).

The trial court must consider each enumerated factor and failure to do so is reversible error. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

Including needs of wife and ability of husband to pay. —

In determining the propriety of allowing alimony and fixing its amount, there must be taken into consideration, along with all of the other circumstances of the particular case, the needs of the wife and the ability of the husband to pay — not necessarily the amount of his actual earnings, but his ability to earn. Brooks v. Brooks, 201 Va. 731 , 113 S.E.2d 872, 1960 Va. LEXIS 154 (1960).

A fair allotment to a wife is determined by balancing her needs against the ability of the husband to pay, considering both his actual earnings and his capacity to earn, whether from his personal exertions or his property. Robertson v. Robertson, 215 Va. 425 , 211 S.E.2d 41, 1975 Va. LEXIS 169 (1975); Butler v. Butler, 217 Va. 195 , 227 S.E.2d 688, 1976 Va. LEXIS 258 (1976).

In awarding spousal support to wife, trial court was aware of husband’s monthly income and expenses, and wife’s expense report was based on circumstances in the reasonably near future; court therefore did not abuse its discretion in determining amount of support award. McCord v. McCord, 1999 Va. App. LEXIS 459 (Va. Ct. App. July 27, 1999).

Where a former husband had cash and assets valued in excess of $1.4 million and the balance of a cash bond posted when an initial divorce decree was entered could essentially pay court-ordered rehabilitative support for his former wife, the former husband failed to show that he lacked an ability to pay spousal support. Smith v. Thornton-Smith, 2008 Va. App. LEXIS 62 (Va. Ct. App. Feb. 5, 2008).

Court must consider needs. —

While party’s comparative financial condition before marriage and after divorce may demonstrate one’s ability to support oneself, court must consider needs of each spouse in relation to each party’s ability to provide for those needs and other spouse’s ability or resources to provide for those needs, and station to which party may have grown accustomed during marriage is to be considered in determining support. Keyser v. Keyser, 7 Va. App. 405, 374 S.E.2d 698, 5 Va. Law Rep. 1140, 1988 Va. App. LEXIS 126 (1988).

When considering the issue of spousal support, whether in a modification or initial award determination, the trial court must take into account the receiving spouse’s needs and ability to provide for the needs, and balance those against the other spouse’s ability to provide support, even when the payor spouse has retired in good faith at a “normal” retirement age. Stubblebine v. Stubblebine, 21 Va. App. 635, 466 S.E.2d 764, 1996 Va. App. LEXIS 98 (1996).

The existence of the fault ground of desertion is not a factor to be considered in determining the award of spousal support. Hankins v. Hankins, 1993 Va. App. LEXIS 317 (Va. Ct. App. July 27, 1993).

Evidence was sufficient to support judgment of wife’s present inability to engage in compensable work where marriage of nine years brought to end through no fault of wife when child of parties was only few months old, and where record discloses she suffered adverse mental and physical problems which court may have considered to have been caused by marital difficulties. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Weighing of specific factors. —

Trial court in its analysis under this section was under no obligation to give more or less weight to tax bill owed by appellant. Appellant’s belief that the matter should have been accorded more weight does not constitute grounds on which the appellate court may interfere with the findings of the trial court. Covington v. Covington, No. 0995-96-2 (Ct. of Appeals Dec. 17, 1996).

Where a husband and wife’s interim agreement related to the wife’s purchase of a home in the same neighborhood that the husband resided for purposes of their agreed child custody arrangement, and the agreement did not at all bear on the issue of spousal support, the trial court did not violate the parties’ agreement, nor § 20-109 C, in determining to award spousal support to the wife; the court considered the respective interests of the parties in the marital property, including the equitable distribution of the property, the length of the marriage, the standard of living of the parties, and their earning capacities. Massa v. Massa, 2004 Va. App. LEXIS 129 (Va. Ct. App. Mar. 30, 2004).

Where the parties entered into a settlement agreement that established the former wife’s entitlement to spousal support and this agreement was incorporated by reference into the divorce decree, the agreement was contractual and not judicial, in part, because no judicial balancing of the statutory decisionmaking variables outlined in subsection E of § 20-107.1 could have been imputed to the decree. Baldwin v. Baldwin, 44 Va. App. 93, 603 S.E.2d 172, 2004 Va. App. LEXIS 472 (2004).

Because the trial court failed to take into consideration the factors set forth in § 20-107.1 , and because the husband’s medical diagnosis alone was insufficient to prove a material change in circumstances, the trial court erred in modifying, and ultimately terminating, the wife’s spousal support. Furr v. Furr, 2007 Va. App. LEXIS 204 (Va. Ct. App. May 15, 2007).

Due to the appellate court’s rulings reversing orders regarding the marital residence and marital debt, the trial court’s order denying the wife spousal support had to be reversed. Moreover, on remand, the trial court was also directed to more thoroughly explain how it applied the factors of § 20-107.1 .Sherman v. Sherman, 2008 Va. App. LEXIS 108 (Va. Ct. App. Mar. 4, 2008).

Husband’s claim that a wife should have been required to buy a less expensive house was properly rejected under subsection E of § 20-107.1 as the property interests of both parties, both real and personal, tangible and intangible were considered, and the trial court stated that it was not going to place the wife in a position of trying to sell the wife’s house. Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009).

Trial court pursuant to § 20-107.1 should have imputed income to the wife in determining whether the husband’s spousal support obligation should be reduced. The wife made a monetary gift to the husband and wife’s adult daughters and since that gift could have been used to generate income for the wife, it had to be factored in when considering whether there had been a substantial change of circumstances of the wife’s spousal support need. Williams v. Williams, 2009 Va. App. LEXIS 331 (Va. Ct. App. July 21, 2009).

Denial of the husband’s motion to reduce or suspend his spousal support obligation to his wife was appropriate because the agreements of the parties did not obviate the need to show a material change in circumstances that affected payor spouse’s ability to pay and the husband had failed to make such a showing. In light of that conclusion, no further analysis of the thirteen factors under § 20-107.1 was required. Driscoll v. Hunter, 59 Va. App. 22, 716 S.E.2d 477, 2011 Va. App. LEXIS 320 (2011).

Trial court did not err in awarding a former wife spousal support, as it properly considered all the relevant factors of subsection E of § 20-107.1 , and had not been required to articulate what weight it gave to each factor. Vannatta v. Vannatta, 2012 Va. App. LEXIS 366 (Va. Ct. App. Nov. 20, 2012).

Circuit court abused its discretion in ordering a husband to pay spousal support because its determination that the husband had the ability to pay was not supported by the evidence; the wife failed to present any evidence establishing the husband’s income or his ability to pay the spousal support award. Collard v. Collins, 2017 Va. App. LEXIS 281 (Va. Ct. App. Nov. 14, 2017).

Circuit court’s decision not to provide a wife with a credit for child-care expenses for the purpose of calculating child and spousal support was not error because her part-time job gave her flexibility both to work from home and to take her younger child to the office with her on occasion as needed; the husband testified that he could turn down promotional work in order to care for the children, and the parties’ son was old enough to help provide care for his sister. Henderson v. Henderson, 2018 Va. App. LEXIS 132 (Va. Ct. App. May 15, 2018).

While the wife argued that the award of $5,000 a month in spousal support did not afford her the ability to live in the lifestyle to which the parties had become accustomed during the marriage, the standard of living established during the marriage was only one of 13 factors for the court’s consideration. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Trial court did not abuse its discretion by ordering the husband to pay spousal support to the wife, even though they had only been married for 10 months, because it found that while both parties had the education and skills necessary to earn a living, the wife had no lawful ability to earn income at that time due to her immigration status, and she was not permitted to leave the country with the parties’ child. Hyat v. Hina, 2020 Va. App. LEXIS 179 (Va. Ct. App. June 23, 2020).

Trial court did not abuse its discretion in making no separate provision for health care coverage, where there is no statutory mandate that health care coverage be provided, though physical and medical condition of the parties is one fact a court must consider in awarding spousal support. Lassen v. Lassen, 8 Va. App. 502, 383 S.E.2d 471, 6 Va. Law Rep. 125, 1989 Va. App. LEXIS 98 (1989).

Award of support error where wife’s debt represented property interest. —

Award of support in consideration of wife’s debt was error where her debt represented a property interest which had been adjusted between the parties rather than an obligation upon which spousal support could be based. Smith v. Smith, No. 2090-90-3 (Ct. of Appeals Nov. 12, 1991).

Award upheld where statutory factors were considered. —

Where a trial court considered the factors in subsection E of § 20-107.1 in making an award of spousal support, the husband’s appeal was without merit; consequently, the wife was entitled to attorney’s fees. Clarkson v. Clarkson, 2004 Va. App. LEXIS 404 (Va. Ct. App. Aug. 31, 2004).

Trial court’s award of spousal support to the husband was not an abuse of discretion. The trial court properly considered the factors, including the needs of the husband, the wife’s ability to pay because the wife had substantial rental income, and the loan the husband recieved from a cousin that did not have to be repaid. Dritselis v. Dritselis, 2008 Va. App. LEXIS 128 (Va. Ct. App. Mar. 18, 2008).

Award of spousal support to the husband, after the consideration of the factor in subsection E of § 20-107.1 , was proper because the husband was a “stay at home” parent who could not seek employment due to son’s needs and the husband did not possess the requisite skills to return to the husband’s trade and would need several years of schooling and on the job training. Dunwody v. Dunwody, 2008 Va. App. LEXIS 498 (Va. Ct. App. Nov. 12, 2008).

Because a trial court’s findings of fact relative to the various subsection E factors were supported by the evidence, it did not abuse its discretion in awarding the wife $5,000 per month in spousal support. Robinson v. Robinson, 54 Va. App. 87, 675 S.E.2d 873, 2009 Va. App. LEXIS 207 (2009).

Because the trial court properly considered the factors in subsection E of § 20-107.1 and § 20-107.2 , and because it did not improperly collapse child support and spousal support together for purposes of an aggregate award, it properly awarded spousal and child support to the wife. Dega v. Vitus, 2009 Va. App. LEXIS 286 (Va. Ct. App. June 23, 2009).

Evidence showed that the trial court considered each of the subsection E of § 20-107.1 factors, and it did not err in ordering a husband to pay $750 per month in spousal support for ten years; at the time of entry of the final decree, the parties had been married 33 years, both parties were in their mid-50s, the wife was receiving social security disability, and the husband was employed. The trial court examined each party’s income and expense worksheets and held that the husband’s earnings were more than sufficient to bear the expenses of each party, that the wife had a continuing need of support, and that the husband’s earning capacity was significantly greater than the wife’s earning capacity because the wife was no longer able to work due to her disability. Worley v. Worley, 2009 Va. App. LEXIS 300 (Va. Ct. App. July 7, 2009).

Because a trial court expressly and painstakingly addressed all of the required statutory factors of § 20-107.1 in rendering its decision, it did not err in awarding spousal support to a husband, where the wife was not only capable of paying the husband’s support, the wife contributed to the circumstances leading to the husband’s need for support. Dunfee v. Dunfee, 2010 Va. App. LEXIS 500 (Va. Ct. App. Dec. 28, 2010).

Trial court did not abuse its discretion in making a spousal support award because the trial court appropriately considered and followed the factors mentioned in § 20-107.1 in balancing the parties’ financial and other needs and abilities and in awarding one spouse monthly support in an appropriate amount for an unlimited duration. Sheffield v. Sheffield, 2012 Va. App. LEXIS 19 (Va. Ct. App. Jan. 24, 2012).

Trial court did not abuse its discretion in awarding a former wife spousal support for 10 years, as it considered the parties’ relative financial resources; their middle class standard of living; the 9.6 year length of their marriage; their relative monetary and non-monetary contributions; their two parcels of real estate; and their disparate education and earning capacities. Fox v. Fox, 61 Va. App. 185, 734 S.E.2d 662, 2012 Va. App. LEXIS 395 (2012).

Trial court properly considered the wife’s pre-marital evidence of a husband’s misconduct in calculating its equitable distribution award under subdivision E 5 of § 20-107.3 and its spousal support award under subsection E of § 20-107.1 ; thus, the wife’s argument that the trial court failed to consider this evidence was without merit. Willson v. Willson, 2013 Va. App. LEXIS 128 (Va. Ct. App. Apr. 23, 2013).

Husband’s argument that the trial court erred in failing to calculate the tax consequences that he would incur as a result of receiving spousal support was rejected as the trial court made extensive findings regarding all of the spousal support statutory factors, and it was not required to elaborate on the weight accorded to each factor. Willson v. Willson, 2013 Va. App. LEXIS 128 (Va. Ct. App. Apr. 23, 2013).

Trial court properly considered the factors identified in § 20-107.1 in awarding spousal support; in particular, the trial court considered the significant disparity in earning capacity between the husband and the wife, as the wife had a high school degree and had limited work experience in low-wage fields, with no current income. Milam v. Milam, 2013 Va. App. LEXIS 134 (Va. Ct. App. Apr. 30, 2013).

Circuit court did not abuse its discretion in its award of spousal support because the court considered the payor spouse’s stated earnings from the spouse’s employment, the payor spouse’s other property interests, the property distributed to the payor spouse in equitable distribution, the standard of living established during the marriage, the parties’ earning capacities, and the parties’ decisions regarding their employment and careers. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Trial court considered the factors in subsection E when it modified the spousal support award because it specified where in its memorandum opinion and prior order it considered the statutory factors; the trial court specifically stated that it based its decision on the testimony regarding the wife’s employability, vocational training period, the husband’s slight reduction in salaried income, amount of previous bonus awards, and cost of living for the parties. Blalock v. Blalock, 2014 Va. App. LEXIS 367 (Va. Ct. App. Nov. 4, 2014).

Trial court did not abuse its discretion in awarding spousal support to a wife because it properly considered the relevant statutory factors, the husband’s annual income was approximately twice as much or more than the wife’s, the trial court’s reliance on the wife’s most recent tax return was sufficiently contemporaneous to support its decision and was supported by the evidence, and the husband failed to present sufficient evidence of the wife’s income. Neubert v. Neubert, 2015 Va. App. LEXIS 226 (Va. Ct. App. July 21, 2015).

Trial court did not abuse its discretion in determining the nature, amount, or duration of spousal support because it made numerous findings of fact relative to the various subsection E factors, and those findings were supported by the evidence; in deciding to award spousal support for a defined duration, the trial court considered the length of the marriage, the wife’s ability to transition to more permanent and financially secure employment, the wife’s age, and the children’s ages. Peake v. Peake, 2015 Va. App. LEXIS 281 (Va. Ct. App. Oct. 6, 2015).

Trial court properly considered the statutory factors and did not use the pendente lite formula in reaching the ultimate spousal support award for the wife; the award was supported by substantial evidence, given in part the wife’s lower income per month and lower education level, plus she was granted a divorce on cruelty grounds based on the husband’s pattern of physical abuse. Ozfidan v. Ozfidan, 2017 Va. App. LEXIS 5 (Va. Ct. App. Jan. 10, 2017).

Review of a trial court’s letter opinion demonstrated that the trial court complied with the statutory requirements in setting an award of spousal support because, at the beginning of the letter opinion section entitled “Spousal Support,” the court stated that it considered the factors, and subsequently the court specifically listed the statutory factors that supported its decision. The court was not required to go beyond that and quantify or elaborate exactly what weight or consideration was given to each of the statutory factors. Ware v. Srinivasan, 2017 Va. App. LEXIS 27 (Va. Ct. App. Feb. 7, 2017).

Trial court was not plainly wrong in awarding the wife $12,000 a month in spousal support after considering the length of the marriage, almost 30 years, that the wife was a stay-at-home mom by agreement, that the wife enabled the husband’s earnings by caring for their child, the husband’s $600,000 annual income, and that the 57-year-old wife lacked any meaningful employment history or marketable skills. Gordon v. Gordon, 2017 Va. App. LEXIS 164 (Va. Ct. App. July 11, 2017).

Trial court did not err in awarding spousal support to the wife because it based its decision on the statutory factors; the trial court found that the husband had a long-standing business that he was fully capable of operating and could work more hours, and conversely, the wife had significant monthly expenses, did not have any meaningful source of income, and had received substantial financial assistance from her parents for an extended period of time. Moret v. Moret, 2018 Va. App. LEXIS 130 (Va. Ct. App. May 8, 2018).

Trial court properly awarded spousal support to the wife because, while the wife challenged the amount of the award, she did not challenge the trial court’s individual findings used to determine the award, the court addressed each of the statutory factors in subsection E of § 20-107.1 , including, inter alia, that she was being awarded a sizable liquid award for her interest in marital property. McConnell v. McConnell, 2019 Va. App. LEXIS 182 (Va. Ct. App. July 30, 2019).

Given the trial court’s findings regarding the standard of living established during the marriage, the husband’s affair that ended the marriage representing a negative, nonmonetary contribution to the well-being of the family, the parties’ earning capacities, including the skills, education and training of the parties, and the decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, it was clear that any differences in marginal tax rates reasonably were viewed by the trial court as relatively insignificant, and that such differences did not merit a different spousal support award given the circumstances. Gaines v. Gaines, 2021 Va. App. LEXIS 48 (Va. Ct. App. Mar. 30, 2021).

Circuit court did not fail to consider the circumstances and factors that led to the dissolution of the marriage in determining spousal support but satisfied this section when it addressed the circumstance and factors in another section of the letter opinion and at the hearing. Walter v. Walter, 2021 Va. App. LEXIS 156 (Va. Ct. App. Aug. 17, 2021).

Factors were not considered and ruling inappropriate. —

Trial court abused the court’s discretion by failing to comply with subsection F of § 20-107.1 since the final decree of divorce merely confirmed the commissioner’s report and granted the wife spousal support of $500 monthly as recommended by the commissioner without specifying which of the subsection E of § 20-107.1 factors the court considered. Benzine v. Benzine, 52 Va. App. 256, 663 S.E.2d 105, 2008 Va. App. LEXIS 349 (2008).

Because the trial court did not follow the three-step process set forth in § 20-107.3 , it was impossible to determine whether the wealth accumulated during the parties’ marriage was divided in a manner consistent with the policy embodied in the statute; because the trial court’s equitable distribution award was reversed, the trial court was also to recalculate its spousal support award. Griffin v. Griffin, 2009 Va. App. LEXIS 588 (Va. Ct. App. Dec. 29, 2009).

Trial court erred in denying a husband’s motion to modify the child and spousal support payments he was required to pay to the wife because, while the trial court found that a material change of circumstances had occurred and there was very clear, uncontested evidence that the husband experienced a dramatic decrease in income, neither the letter opinion nor the final order contained the required written findings or consideration of the statutory factors, imputation could not be done without the trial court first calculating the presumptive amount of child support, and the trial court’s ruling did not appear to be based upon circumstances as they existed at the time of its decision. Szawronski v. Szawronski, 2019 Va. App. LEXIS 176 (Va. Ct. App. July 23, 2019).

Denial of support proper. —

Testimony of a vocational expert, that a husband’s earning capacity was $125,000 to $160,000 per year, and that the $85,000 and $73,000 the husband earned about 10 years before was equivalent to $125,000 in income at the time of the hearing, as well as evidence of the husband’s education, training, and experience, the lack of any impairment preventing him from working at his full capacity, circumstances concerning loss of his $85,000 per year job, and the quantity and quality of his efforts to obtain full-time permanent employment, all supported a trial court’s order finding that the husband was voluntarily underemployed, imputing an income of $125,000 per year to him, and refusing to award spousal support; the husband failed to preserve for appeal an objection to the trial court’s failure to provide a written explanation for the denial of spousal support. Sandhir v. Ahuja-Sandhir, 2007 Va. App. LEXIS 91 (Va. Ct. App. Mar. 13, 2007).

Considering the § 20-107.1 factors, it could reasonably be concluded that the circumstances did not justify an award of spousal support. Because a spouse had applied for only four jobs in almost a year and a half, the trial court could reasonably infer that the spouse had unrealized income potential. Allen v. Allen, 2007 Va. App. LEXIS 390 (Va. Ct. App. Oct. 23, 2007).

Because the trial court considered the requisite statutory factors in § 20-107.1 in determining whether to grant to wife current spousal support and credible evidence in the record supported its finding that, after its equitable distribution, the wife’s combined income would be greater than husband’s and that her income would be sufficient to meet her reasonable expenses, the trial court did not err in denying current spousal support. Shannon v. Shannon, 2008 Va. App. LEXIS 18 (Va. Ct. App. Jan. 15, 2008).

Trial court did not abuse its discretion in refusing to award the wife spousal support because: (1) there was a paucity of information from the wife and there was not enough evidence to determine the wife’s obligations, needs, and resources; (2) both parties were capable of working full time; (3) the wife, who was a nurse, was underemployed as the wife left one position for another position that did not pay as well; and (4) the wife did not provide sufficient helpful information of the wife’s financial and employment status to support an award of spousal support. Duke v. Duke, 2008 Va. App. LEXIS 258 (Va. Ct. App. May 27, 2008).

Trial court did not abuse its discretion when it denied a husband’s request for support, as the husband generally had earned more than wife during the marriage and at the time of the divorce, the husband contributed to the dissolution of the marriage, and his expense claims of $3,900 per month were not supported by evidence. Carrington v. Carrington, 2008 Va. App. LEXIS 250 (Va. Ct. App. May 20, 2008).

Evidence that a former husband and wife earned roughly the same amount, that only the wife had health and retirement benefits, that she discharged most of her debts in bankruptcy, that the husband had voluntarily reduced both parties’ joint debts, and that he provided health insurance for their minor child, supported the denial of spousal support to the wife under § 20-107.1 . The fact that she had been awarded pendente lite support under § 20-103 was irrelevant. Scarberry v. Scarberry, 2009 Va. App. LEXIS 28 (Va. Ct. App. Jan. 27, 2009).

Trial court did not abuse its discretion in denying a husband’s request for spousal support because in issuing its ruling, the trial court reviewed the factors in subsection E of § 20-107.1 and found that on a monthly basis, the wife earned less than the husband. Brown v. Brown, 2012 Va. App. LEXIS 233 (Va. Ct. App. July 17, 2012).

Trial court did not abuse its discretion in denying one spouse’s request for spousal support because the court considered all of the factors in § 20-107.1 , including each party’s income and expenses. Moreover, the court acknowledged that the requesting spouse left a successful career and home country to support the other spouse while that spouse obtained a graduate degree and started a career. Cano v. Davidson, 2014 Va. App. LEXIS 128 (Va. Ct. App. Apr. 1, 2014).

Trial court did not err in denying spousal support in view of the husband’s business capabilities and the resources being awarded to the husband in equitable distribution because the trial court reviewed the factors under subsection E and noted that the husband proved his ability to turn a profit and provide for his family in the construction business. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Short duration of marriage and financial ramifications of wife’s move from and then return to the area in which she resided prior to the marriage were properly considered by the trial court in determining the amount of spousal support. Lightburn v. Lightburn, No. 2445-97-2 (Ct. of Appeals April 14, 1998).

Support was properly granted to the wife. —

Support was properly granted to the wife where her adultery was not proven by clear and convincing evidence, she was granted a divorce based on the husband’s desertion, the husband told her that he did not love her and refused any attempts at counseling to save the marriage, the wife supported hm as he completed college and dental school and began his dental practice, and the husband’s income was more than three times as large as the wife’s income. Helbert, Jr. v. Helbert, No. 0794-98-3 (Ct. of Appeals August 25, 1998).

Record contained sufficient evidence concerning the relevant factors to support the spousal support award to the wife; in particular, evidence was presented concerning the parties’ needs and standard of living. Hanyok v. Hanyok, 2002 Va. App. LEXIS 468 (Va. Ct. App. Aug. 13, 2002).

Wife was properly granted spousal support where the husband did not meet his burden of showing that she was voluntarily underemployed, although she received a bachelor’s degree in education 20 years earlier, but had never worked as a teacher, and was currently employed as a certified nursing assistant in a nursing home, she was and had been the primary caregiver for the parties’ special needs son, whose educational and other needs required her flexibility and availability to regularly care for him. Driskill v. Driskill, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

Trial court’s award of spousal support to a wife was summarily affirmed on appeal, as the trial court did not err in failing to impute passive income to her, given the general and indefinite testimony regarding the same by the husband’s financial expert, and the amount awarded was not an abuse of discretion, considering that such was only until the husband’s retirement, and not in perpetuity. Valder v. Valder, 2006 Va. App. LEXIS 387 (Va. Ct. App. Aug. 15, 2006).

Spousal support award was upheld where the record showed that the trial court considered each of the statutory factors and found that the husband was in good physical and mental health, while the wife suffered from a number of physical and mental ailments, including clinical depression and back and neck problems; the record also showed that the trial court evaluated the wife’s financial needs, the wife’s age, the wife’s ability to earn, and the standard of living during the marriage, against the husband’s ability to pay, considering the husband’s income and ability to earn. Bullano v. Bullano, 2007 Va. App. LEXIS 31 (Va. Ct. App. Jan. 30, 2007).

Trial judge did not abuse his discretion in awarding spousal support retroactive to the date of the wife’s filing of the bill of complaint, given that: (1) by raising the issue in her initial pleadings, she gave notice of her intention to seek support; and (2) following a hearing for pendente lite relief, the trial judge entered an order reserving the issue of spousal support and ruled a final award would be “retroactive to at least 12/9/05,” providing support to reject the husband’s claim that the wife “sat on her rights.” Dega v. Vitus, 2007 Va. App. LEXIS 305 (Va. Ct. App. Aug. 14, 2007).

Trial court did not abuse its discretion in awarding spousal support, as the evidence in the record, which the trial court extensively discussed in its detailed and comprehensive letter opinion, provided an adequate foundation for the trial court’s award of $10,000 per month. The trial court detailed the evidence relevant to the factors it considered most important, most notably the parties’ standard of living, and fashioned an award that would not require a wife to invade her own assets to adequately support herself. Chasen v. Chasen, 2008 Va. App. LEXIS 243 (Va. Ct. App. May 20, 2008).

Order that the husband pay the wife $750 per month in spousal support was proper, where the trial court considered the husband’s evidence, including the husband’s income and indebtedness, as well as the wife’s income and indebtedness, finding the wife’s evidence more persuasive and credible. East v. East, 2008 Va. App. LEXIS 513 (Va. Ct. App. Nov. 25, 2008).

Award of spousal support to the wife was appropriate because the trial court considered the factors in § 20-107.1 and the evidence supported the award. Although the husband stated that he was not living the same type of lifestyle that he did during the marriage because he had to borrow money to manage his expenses, since the separation he was able to purchase a house, while the wife continued to live in the former marital residence owned by her parents and which needed costly repairs; the wife was also working two jobs and had a need for support due to her health problems. Harrison v. Harrison, 2010 Va. App. LEXIS 158 (Va. Ct. App. Apr. 27, 2010).

Trial court did not err in awarding rehabilitative spousal support to one spouse in the amount of $900 per month for 20 years, which was twice the length of the marriage, because: (1) the trial court considered the factors in subsection E of § 20-107.1 in determining its spousal support award; (2) the trial court found that the spouse had the need for support and the other spouse had the ability to pay support; and (3) the spouse was permanently disabled and unable to work. Pramagioulis v. Pramagioulis, 2011 Va. App. LEXIS 20 (Va. Ct. App. Jan. 25, 2011).

Award of permanent spousal support to the wife was proper because, contrary to husband’s argument, there was sufficient evidence to prove that the wife had the need for permanent spousal support and that he had the means to pay it. The parties were married for 23 years and the husband was the primary financial provider while the wife was the primary caretaker of the home and child; at the time of the trial, wife earned $16.50 per hour, whereas husband earned $100,600 per year. Starling v. Starling, 2013 Va. App. LEXIS 248 (Va. Ct. App. Sept. 10, 2013).

Trial court did not err in awarding spousal support, despite the spouse having committed adultery, because (1) the court found that the parties were equally responsible for the dissolution of the marriage; and (2) sufficient evidence supported the court’s finding that, given the serious economic disparity that existed between the parties and their relative future earning capacities, it would have been a manifest injustice to deny spousal support despite the admitted adultery. Nowlakha v. Nowlakha, 2014 Va. App. LEXIS 211 (Va. Ct. App. May 27, 2014).

Trial court did not err by awarding the wife $2,500 a month in spousal support because it found that the husband’s gross monthly income was $14,515, it concluded that the wife was unable to work outside the home and had no income due to her health problems. The wife established that she relied on the husband’s income for financial support and the parties agreed early in the marriage that the husband would be the primary income earner and the wife would take care of the children. Creef v. Creef, 2021 Va. App. LEXIS 140 (Va. Ct. App. July 27, 2021).

No abuse of discretion. —

Chancellor did not abuse her discretion in making an award of spousal support to a wife where the evidence showed a disparity in earnings between the wife and her husband, that the wife was taking on new going-forward expenses that included the mortgage on the former marital home, and that the wife had a legitimate interest in the high standard of living she had enjoyed during her marriage. The chancellor’s refusal to impute income to the wife, who had stayed at home to care for her children, was also proper. Shaffer v. Shaffer, 2003 Va. App. LEXIS 415 (Va. Ct. App. July 29, 2003).

Because the trial court properly found that a wife had a dire need for spousal support, due to her inability to work based on the husband’s conduct, which contributed to her emotional and financial challenges, and that the husband had the ability to pay it, no abuse of discretion resulted from the trial court’s award of $1,000 per month to the wife. Brooker v. Brooker, 2007 Va. App. LEXIS 266 (Va. Ct. App. July 10, 2007).

Trial court did not abuse its discretion in awarded a wife spousal support because the trial court complied with § 20-107.1 by considering the statutory factors and making appropriate findings identifying the factors supporting its spousal support award. Buch v. Buch, 2008 Va. App. LEXIS 147 (Va. Ct. App. Mar. 25, 2008).

Trial court’s award of spousal support to a wife in the amount of $1,300 per month for a period of four years was not an abuse of discretion where the trial court: (1) indicated it had considered the factors in subsection E of § 20.107.1; (2) listed as key considerations the disparity in the earning capacity of the parties and that the husband left the marriage with a considerably greater marital estate; and (3) considered the fact that the wife was working, which was the basis for the time limit on the support. Wright v. Hamilton-Wright, 2008 Va. App. LEXIS 197 (Va. Ct. App. Apr. 22, 2008).

Trial court did not abuse its discretion in finding that a wife was able to be employed and imputing to her an income of $35,000 per year, which the trial court based on an average of her income over the past several years that she worked, because aside from her own testimony, the wife offered no further evidence to prove that she was actually disabled or to demonstrate how her health issues currently affected her ability to work; the wife testified that she had made no recent effort to find a job to take advantage of various programs offered by the Social Security Administration that would allow her to obtain employment and continue to receive disability benefits. Butterman v. Butterman, 2009 Va. App. LEXIS 365 (Va. Ct. App. Aug. 18, 2009).

In awarding a former wife spousal support, the trial court did not abuse its discretion by discussing her expenses for her adult children, as there was no indication it included those expenses in its spousal support calculation; the trial court did not abuse its discretion by including the former husband’s annual incentive pay in the calculation of his income, because in doing so, it did not rely on uncertain future circumstances. Vannatta v. Vannatta, 2012 Va. App. LEXIS 366 (Va. Ct. App. Nov. 20, 2012).

Trial court did not abuse its discretion in denying a wife’s request for continued spousal support based on her ability to support herself because the trial court considered each of the statutory factors and there was nothing in the record to suggest that the trial court ignored or placed improper weight on any of the factors. Johns v. Johns, 2014 Va. App. LEXIS 192 (Va. Ct. App. May 20, 2014).

Circuit court did not abuse its discretion in fashioning the spousal support and equitable distribution awards because its determinations as to the parties’ respective financial resources and needs were reasonable and were supported by the record; the court explained that its decision was largely influenced by the needs and financial resources of the parties and that the other factors were somewhat neutral. Kidd v. Kidd, 2014 Va. App. LEXIS 236 (Va. Ct. App. June 10, 2014).

Conflict was not resolved but was treated as consideration in review. —

Where either husband had less disposable net income than determined by the chancellor because he had not been credited with making second mortgage payment or wife had more disposable income than determined by the chancellor because she had been credited with an obligation that she did not have, the court of appeals did not resolve apparent conflict. Rather, the court treated it as another consideration in its review of the final award. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Spousal support and child support may not be set off. —

Child support and spousal support involve separate rights and obligations between different parties and are to be determined based on separate statutory factors; a court is not authorized to offset one support obligation against another or to suspend those obligations. Tatum v. Tatum, 2000 Va. App. LEXIS 789 (Va. Ct. App. Dec. 5, 2000).

Child support improperly deducted from wife’s estimate of expenses. —

Circuit court abused its discretion in accepting a commissioner’s calculation of spousal support that deducted child support from the former wife’s estimate of her expenses under this section, as a mathematical proxy for determining the portion of the wife’s expenses fairly attributable to the support of her minor son; because child support depends itself in part on the amount of spousal support awarded to a custodial parent under subsection C of § 20-108.2 , it cannot serve as a reasonable proxy for overlapping expenses. Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 2006 Va. App. LEXIS 343 (2006).

Consideration of post-separation child care responsibilities allowed. —

Trial court’s consideration of the wife’s provision of the majority of the post-separation child care responsibilities, when determining an award of spousal support, was not error. Settle v. Settle, 2002 Va. App. LEXIS 117 (Va. Ct. App. Feb. 26, 2002).

Consideration of savings plan is proper. —

In awarding spousal support, a trial court properly considered the parties’ savings plan and awarded the former wife support in an amount sufficient to allow her to save $40,000 per year towards her retirement. Miller v. Cox, 44 Va. App. 674, 607 S.E.2d 126, 2005 Va. App. LEXIS 9 (2005).

In fixing the amount of alimony, the court will not seek to find how light the burden may possibly be made, but what, under all the circumstances, will be fair and just allotment. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871).

Earnings as well as property taken into account. —

Where a wife is compelled to seek a divorce from her husband on account of his misconduct, in fixing the amount of her alimony his earnings may be taken into account, if necessary, as well as his property. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871) (see Trimble v. Trimble, 97 Va. 217 , 33 S.E. 531 (1899)).

Amount of temporary support is not factor to be considered. —

That amount of permanent award was substantial increase over amount of temporary award is of no consequence; amount of temporary support is not factor under § 20-107.1 that judge must consider when determining appropriate amount of spousal support. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

Child support ordered by the court was not a proper factor for consideration in determining wife’s need for spousal support, except insofar as it constituted an “obligation” of husband pursuant to subdivision (1). Lambert v. Lambert, 10 Va. App. 623, 395 S.E.2d 207, 7 Va. Law Rep. 110, 1990 Va. App. LEXIS 135 (1990).

Awards to be based upon contemporary circumstances. —

The balance must be struck and awards made upon the basis of the circumstances disclosed by the evidence at the time of the award. Section 20-109 grants courts continuing jurisdiction to modify awards where changed circumstances are demonstrated. This statutory scheme recognizes that comparative needs and capacities change as circumstances change, the changes are not fairly predictable, and that spousal support awards must be determined in light of contemporary circumstances and then, if necessary, redetermined in light of new circumstances. Jacobs v. Jacobs, 219 Va. 993 , 254 S.E.2d 56, 1979 Va. LEXIS 198 (1979).

Court must look to current circumstances in setting support award and what the circumstances will be within the immediate or reasonably foreseeable future; where the husband had recently started his law practice and the first few months were lean ones, evidence that by months six and seven he was averaging over $5,000 per month in gross income supported finding that the husband’s income was $5,000 per month. Gay v. Gay, 2004 Va. App. LEXIS 24 (Va. Ct. App. Jan. 20, 2004).

And not upon uncertain future circumstance. —

A spousal support award which is premised upon the occurrence of an uncertain future circumstance ignores the design and defeats the purpose of the statutory scheme. Jacobs v. Jacobs, 219 Va. 993 , 254 S.E.2d 56, 1979 Va. LEXIS 198 (1979).

In determining the obligor’s ability to pay, courts are authorized to consider not only earnings but also “earning capacity.” But in doing so, it is not proper to consider what the obligor might ultimately receive as a “potential recipient” of a share of a trust fund. Jacobs v. Jacobs, 219 Va. 993 , 254 S.E.2d 56, 1979 Va. LEXIS 198 (1979).

It was an abuse of discretion for the chancellor to award spousal support that left husband approximately $200.00 per month to meet his monthly bills, on grounds that he expected husband’s income to change since he was capable of making more money, absent sufficient evidence to show that husband could increase his income or to establish the amount of such increase. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

The court, in setting support awards, must look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future, not to what may happen in the future. Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675, 7 Va. Law Rep. 221, 1990 Va. App. LEXIS 153 (1990).

The trial court did not err by considering the so-called 20/30 Rule in determining spousal support; whatever his starting point, the record supported a finding that the trial judge applied the guidelines in this section in making his permanent spousal support award. Bragg v. Bragg, Nos. 0852-89-4 (Ct. of Appeals July 3, 1990).

F.Determination of Income.

Allowance made from spouse’s income. —

In respect to alimony, the general rule is that the income of the husband, however derived or derivable, is the fund from which the allowance is made. Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871); Cralle v. Cralle, 84 Va. 198 , 6 S.E. 12 , 1887 Va. LEXIS 22 (1887); Heninger v. Heninger, 90 Va. 271 , 18 S.E. 193 , 1893 Va. LEXIS 45 (1893) (see also Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872); Myers v. Myers, 83 Va. 806 , 6 S.E. 630 (1887); Taylor v. Taylor, 203 Va. 1 , 121 S.E.2d 753 (1961)).

Determination of income. —

Husband met his burden of establishing reasonable business expenses to be deducted from his gross corporate revenue, and therefore trial court did not err in its calculation of the parties’ spousal and child support obligations. Taslitt v. O’Connor, No. 2724-98-4 (Ct. of Appeals Dec. 7, 1999).

In considering an award of spousal support, the trial court erred in calculating the husband’s income because it used an incorrect figure for the cost of his medical malpractice insurance and because it failed to consider the possibility that his income would be far greater than that guaranteed by his employment agreement; hence, the appeals court vacated all awards stemming from the error. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Money the former wife received from selling her stocks to meet her living expenses was not income, as there was no evidence it had appreciated in value, and the trial court properly declined to treat it as such in calculating the husband’s support obligation. Cash v. Clark, 2007 Va. App. LEXIS 410 (Va. Ct. App. Nov. 13, 2007), overruled in part, Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Circuit court did not err in calculating a husband’s income for purposes of spousal and child support because it was entitled to accept his testimony that he included all professional appearance fees on his income tax returns and that his income was as he reported it; by accepting the income figures the husband provided, the circuit court implicitly rejected the wife’s testimony that he failed to report all income received from appearance fees, and that finding was not plainly wrong. Henderson v. Henderson, 2018 Va. App. LEXIS 132 (Va. Ct. App. May 15, 2018).

Wife’s permanent spousal support award did not err because (1) the parties did not have a large disposable marital income, (2) the court considered statutory factors, the husband’s businesses’ tax liability, the businesses’ operating expenses and capital outlays and how distributions were made to members, and found the husband did not get the benefits of all the businesses’ profits when finding ability to pay, while imputing an annual income to the wife, whose income and expense statement was not helpful, and was faced with available liquid assets of about $7,000, and considered the parties’ tax consequences. Everett v. Tawes, 2018 Va. App. LEXIS 180 (Va. Ct. App. July 10, 2018), rev'd, 298 Va. 25 , 833 S.E.2d 876, 2019 Va. LEXIS 136 (2019).

Ex-wife’s spousal support payment from the ex-husband was properly reduced because the agreement stated that the support amount could be modified if the husband’s income was reduced by more than 25% through no fault of his own, and the reduction of the husband’s income was more than 50%; the husband was not voluntarily underemployed; the agreement did not limit the trial court to considering only the husband’s reduced income when determining whether to modify the support amount; and, since the divorce, the wife had become employed at a yearly salary of $64,000 and had acquired substantial savings and real estate holdings, and she had remarried and was enjoying a greater standard of living than she had while married to the husband. Owen v. Owen, 2019 Va. App. LEXIS 298 (Va. Ct. App. Dec. 17, 2019).

Trial court’s determination of the husband’s income of $21,188 per month was upheld on appeal; there were many complicating factors in this determination, ranging from the husband’s claims of disability, the opinion of his expert that his depression would resolve shortly after trial, and the fact that he continued to receive payments from his employer in 2018 and 2019 in addition to disability payments. Although another fact finder could have set the income at a different level, the trial court’s decision was reasonable. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

No error in averaging gross income. —

Trial court did not err in averaging a husband’s past three years of gross income to determine his income for spousal support purposes because the husband’s income fluctuated in the last several years; the trial court considered his earning capacity and recent earnings to calculate his income for spousal support purposes. Peake v. Peake, 2015 Va. App. LEXIS 281 (Va. Ct. App. Oct. 6, 2015).

Disability pay may not be considered. —

Because the appellate court reversed the military pay order as military retirement could not be divided between divorcing spouses, and a former spouse was not entitled to any portion of a veteran’s disability pay, it had to reverse and remand the spousal support award so the trial court could recalculate the appropriate amount after considering the corrected military pay order. Leo v. Leo, 2022 Va. App. LEXIS 24 (Va. Ct. App. Feb. 1, 2022).

Disability benefits may be considered. —

Trial judge did not err in ordering $1,000 monthly spousal support where monthly spousal support and equitable distribution payments necessitated invasion of husband’s disability funds, which were funds that had exempt status because source of payments did not need to come from his exempt disability pay, and because husband’s military disability benefits could properly be considered in determining amount of spousal support awarded to wife. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

But disability and retirement benefits not interchangeable. —

The husband was not receiving 20 years of military retirement pay, but rather an abbreviated retirement due to his disability compensation. Because the triggering event had not occurred, the spousal support agreed upon was not modified. Lang v. Lang, No. 1491-96-1 (Ct. of Appeals Feb. 11, 1997).

Court required to consider income from husband’s federal pension. —

Trial judge was required to consider income from the husband’s federal pension that the wife was to receive in fixing the spousal support award, and the monthly pension payments were to be considered as akin to monthly income from an asset and not an exhaustible asset. McGuire v. McGuire, 10 Va. App. 248, 391 S.E.2d 344, 6 Va. Law Rep. 2301, 1990 Va. App. LEXIS 74 (1990).

The income received by the husband from his share of the distribution of his pension was a fungible asset to be considered as a resource in determining the amount of his spousal support obligation. By the same token, the wife’s share of the pension was a resource of hers to be considered in determining her need for support. Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 792, 1997 Va. App. LEXIS 64 (1997).

In a case in which an ex-husband appealed a divorce decree, he argued unsuccessfully that the trial court erred in awarding spousal support and 50 percent of his net military retirement pay to his ex-wife when there was no evidence that he had additional income besides his military retirement pay. Since the request for a division of retirement under equitable distribution differed from a request for spousal support, the one-time equitable distribution of property completed by § 20-107.3 was based on the accrued rights of the parties in the distributed property, and that was a separate consideration from that necessary to measure the current financial positions of the parties in determining spousal support under § 20-107.1 ; the income received by the ex-husband from his share of the distribution of his pension was a fungible asset that could be considered as a resource when determining the amount of his spousal support obligation. Darley v. Darley, 2009 Va. App. LEXIS 442 (Va. Ct. App. Oct. 6, 2009).

The plain language of this section requires that monthly federal pension payments be considered as akin to monthly income from an asset and not an exhaustable asset. Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 792, 1997 Va. App. LEXIS 64 (1997).

Judge held to have considered monetary award when determining support. —

Trial judge did not fail to consider $417.00 per month monetary award payment from husband’s military pension as income when determining wife’s spousal support award where in his opinion, judge stated that he considered financial resources of the parties, and where, when computing wife’s income, judge factored in annual eight percent yield on sums awarded to wife by monetary award. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

Formula for division of military pension. —

The evidence showed that the parties were married for 18 of the 21 years that husband served in the military. At the time of the divorce, he had retired and was receiving monthly retirement benefits. Based on the 18 of 21 years ratio, the marital share of husband’s $1,056 monthly retirement payment is $905.14, of which wife is entitled to no more than 50 percent or $452.57. Cunningham v. Cunningham, 1996 Va. App. LEXIS 524 (Va. Ct. App. July 23, 1996).

Error to include military pension. —

Trial court abused its discretion when it failed to account for the effect of the equitable distribution award of half the marital portion of the husband’s monthly military pension when calculating the husband’s monthly income for purposes of spousal and child support. Robertson v. Robertson, 2017 Va. App. LEXIS 278 (Va. Ct. App. Nov. 7, 2017).

Taxation. —

Circuit court did not err by correctly stating the law as it stood at the time of its written ruling, or in declining to amend its award of spousal support without any evidence, or any request to present evidence, on the effect of the tax code amendments before it entered the final decree. Myers v. Myers, 2020 Va. App. LEXIS 111 (Va. Ct. App. Apr. 14, 2020).

A reduction in income resulting from a voluntary employment decision does not require a corresponding reduction in the payor spouse’s support obligations, even if the decision was reasonable and made in good faith. Accordingly, a “court may impute income to a party who is voluntarily unemployed or underemployed.” Stubblebine v. Stubblebine, 21 Va. App. 635, 466 S.E.2d 764, 1996 Va. App. LEXIS 98 (1996).

Termination of support award upheld. —

Where trial court failed to impute to the husband his pre-retirement income as the basis for his ability to pay support, because the evidence showed that the wife’s income had significantly increased within the five years following the support award and because she was fully self-supporting, the trial court did not err by terminating the support award. Peterson v. Peterson, 1995 Va. App. LEXIS 531 (Va. Ct. App. June 20, 1995).

Determining earning capacity for unemployed spouse or parent. —

In determining the earning capacity of a spouse or parent who is unemployed, the evidence must enable the court reasonably to project what amount could be anticipated. The court is not required to set forth a method by which it calculated with precision an exact wage or salary which an unemployed party could earn. Hancock v. Hancock, No. 0962-89-3 (Ct. of Appeals Oct. 9, 1990).

Proof of underemployment. —

Trial court did not abuse its discretion in refusing to find that a wife, who was a realtor, was underemployed, as no local realtors testified about the local real estate market, no one from wife’s real estate firm testified about the typical salaries earned by agents, and no evidence established that the wife did not work full time; thus, the husband failed to carry his burden of proving that the wife was underemployed. Brown v. Brown, 2004 Va. App. LEXIS 510 (Va. Ct. App. Nov. 2, 2004).

On appeal of a rehabilitative spousal support award, a former husband failed to prove that his former wife was voluntarily underemployed where she suffered from diagnosed and undiagnosed medical conditions, she had trouble paying expenses while the parties were separated, and she lived in an apartment. That evidence was substantial, and the wife did not have to submit an income and expenses statement. Smith v. Thornton-Smith, 2008 Va. App. LEXIS 62 (Va. Ct. App. Feb. 5, 2008).

A spouse may not purposely choose to pursue a low paying career which operates to the detriment of the other spouse and children. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

Part-time work not de facto choice of underemployment. —

Parties decided the wife would leave the workforce upon the birth of their first child, she was the primary caregiver for two children who were six and eight at the time of trial, which spoke to the reasonableness of her decision to not pursue full-time employment, plus she continued to work the same amount as she had prior to separation. Choosing to continue to work part-time is not de facto a choice to be voluntarily underemployed, and the circuit court did not abuse its discretion in not imputing a full-time salary to the wife. Myers v. Myers, 2020 Va. App. LEXIS 111 (Va. Ct. App. Apr. 14, 2020).

Evidence was sufficient to impute income to the husband equal to half his prior salary where the husband’s loss of employment of involuntary, but his job search was insufficient. Damschroder v. Patterson, No. 0889-98-2 (Ct. of Appeals Apr. 27, 1999).

Award of $900 per month in spousal support to a wife was proper in view of a vocational rehabilitation consultant’s testimony that the wife could earn $40,000 per year as a paralegal, and the wife’s evidence concerning her health problems, the trial court did not err in imputing to her income of $20,000 per year. Deluca v. Katchmeric, 2005 Va. App. LEXIS 188 (Va. Ct. App. May 10, 2005).

Because a wife failed to provide the court with evidence that she could not work due to her mental health or the needs of her two youngest children, and the husband provided the court with all the information necessary to render a proper decision imputing income, absent evidence from the wife to counter the same, the trial court did not abuse its discretion in imputing income to the wife for the sake of awarding spousal support. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Because income could be imputed to a wife when her depression did not make her unemployable, because the husband’s income and expenses were properly considered, and because the trial court made specific findings according to the factors in § 20-107.1 , a spousal support award of $833 per month was not an abuse of discretion. Favors v. Favors, 2009 Va. App. LEXIS 119 (Va. Ct. App. Mar. 17, 2009).

Pursuant to subdivision E 9 of § 20-107.1 , a trial court could impute to the husband a gross annual salary of $66,000 because, although the husband testified at trial that he made only $10,000 to $15,000 per year while working at his parents’ salvage yard, he also admitted to taking money from the salvage yard as needed and depositing it into his personal account. The bank statements indicated that the husband actually earned closer to $66,000. Tate v. Tate, 2009 Va. App. LEXIS 438 (Va. Ct. App. Sept. 29, 2009).

Trial court’s decision to impute income to the wife was not arbitrary because the husband’s testimony about the wife’s condition and behavior, the testimony from the husband’s vocational expert, and the husband’s cross-examination of wife’s medical experts afforded the trial court a factual basis upon which to impute income to wife. Coleman v. Coleman, 2011 Va. App. LEXIS 356 (Va. Ct. App. Nov. 22, 2011).

Evidence insufficient that wife significantly underemployed. —

While husband contended that wife earned more in the past while working the District of Columbia area, that evidence was insufficient to establish that wife was significantly underemployed in her current geographic location. Furthermore, it was irrelevant to the current situation that years earlier, under different circumstances, wife did not obtain additional training. Therefore, husband failed to demonstrate that the trial court erred in its award of spousal support to wife. Quinn v. Quinn, 1997 Va. App. LEXIS 573 (Va. Ct. App. Sept. 2, 1997).

Trial court was not required to impute income to a wife where the husband failed to present any evidence that the wife was underemployed or what the wife’s income might be in the field of computer graphics. Wright v. Hamilton-Wright, 2008 Va. App. LEXIS 197 (Va. Ct. App. Apr. 22, 2008).

Unreasonable refusal to seek or accept employment. —

Where the evidence did not support a finding that wife had unreasonably refused to accept employment as of the date of divorce and she was thus entitled to a reasonable time to secure employment, if, after a reasonable time she unreasonably refused to seek or accept employment, the imputation of an amount of income would become justified. Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675, 7 Va. Law Rep. 221, 1990 Va. App. LEXIS 153 (1990).

No account should be taken of acquisitions made after the date of the decree of divorce in estimating allowance for alimony. Cralle v. Cralle, 79 Va. 182 , 1884 Va. LEXIS 74 (1884).

Factors to be considered for imputing income. —

In determining whether to impute income, the trial court must consider the parties’ earning capacity, financial resources, education and training, ability to secure education and training, and other factors relevant to the equities of the parents and the children. Harris v. Harris, 72 Va. (31 Gratt.) 13, 1878 Va. LEXIS 24 (1878) (see Tatum v. Tatum, Nos. 0438-00-3, 0443-00-3, 2000 Va. App. LEXIS 789 (Ct. of Appeals Dec. 5, 2000)).

Circuit court erred in declining to impute any income to a wife because, while it considered the statutory factors, there was essentially no conflict in the evidence that she could find a job and earn at least $40,000 to $60,000 per year based on her education and experience. Campbell v. Campbell, 2014 Va. App. LEXIS 274 (Va. Ct. App. Aug. 5, 2014).

The trial court erroneously considered installment payments of the monetary award as income rather than an asset constituting a part of wife’s estate in denying her request for spousal support. Ray v. Ray, 4 Va. App. 509, 358 S.E.2d 754, 4 Va. Law Rep. 200, 1987 Va. App. LEXIS 206 (1987).

Trial court did not err in calculating spousal support by imputing income to husband-appellant where the record showed that the court considered testimony from appellant’s accountant concerning appellant’s business losses that the court counterbalanced with the testimony that there were other funds available and just taken as used, and based on that evidence, the court found that the financial picture presented by appellant and his accountant was not a precisely accurate one and that appellant did have other sums of money available. Floyd v. Floyd, 17 Va. App. 222, 436 S.E.2d 457, 10 Va. Law Rep. 396, 1993 Va. App. LEXIS 500 (1993).

Trial court did not err by excluding bonus in income calculation. —

While husband had earned a bonus in the previous three years, the evidence was, at best, inconclusive as to the likelihood of a bonus for 1993. Moreover, where a party’s realization of additional income is an irregular occurrence and not contemporaneous with the support proceeding, the trial judge does not abuse his discretion by failing to include the additional income in calculating gross monthly income. Therefore, the trial court did not err in accepting the commissioner’s recommended amount of spousal support, notwithstanding the exclusion of husband’s anticipated bonus. Merkt v. Merkt, No. 1788-94-3 (Ct. of Appeals March 7, 1995).

Where husband received $58,000 note instead of money, $58,000 was income. —

Where husband testified that, as to $120,000 of his 1994 income from his firm expressed on the husband’s W-2, $58,000 was “phantom” income that he never received, and that he did not receive $58,000 or its equivalent, but instead received a $58,000 promissory note from his law firm, the commissioner did not err by finding all or part of the $58,000 to be earned income to the husband. The fact that the husband, as sole shareholder of the corporation, and the law firm used firm assets for purposes other than paying the husband’s salary and treated his earnings as a loan to the firm did not change the fact that husband had $58,000 earned income. Norris v. Norris, 1997 Va. App. LEXIS 535 (Va. Ct. App. Aug. 5, 1997).

Imputed income. —

Trial court did not err in refusing to impute income to wife based on higher paying job she had held prior to moving to area. Sessoms v. Myer, 1999 Va. App. LEXIS 297 (Va. Ct. App. May 25, 1999).

Judgment awarding spousal support in the amount of $3,000 per month to a wife pursuant to § 20-107.1 was improper, as the wife produced no evidence of the extent of the husband’s post-retirement earning capacity, and it was error for the circuit court to impute income to him. Harber v. Harber, 2008 Va. App. LEXIS 26 (Va. Ct. App. Jan. 15, 2008).

Trial court did not err by imputing income to a wife for purposes of determining spousal support under § 20-107.1 because based on the evidence the trial court did not abuse its discretion by finding that the wife was voluntarily unemployed. Howard v. Howard, 2010 Va. App. LEXIS 31 (Va. Ct. App. Jan. 26, 2010).

Trial court did not err in imputing income to a husband and ordering him to pay spousal support to the wife. The trial court could use the husband’s past earnings to determine how much he was capable of earning. Godwin v. Godwin, 2015 Va. App. LEXIS 291 (Va. Ct. App. Oct. 20, 2015).

Spousal support in favor of the wife was upheld on appeal and the circuit court did not err in imputing a full-time salary to the husband as he was voluntarily underemployed; his W-2s showed he earned $121,009 in 2015 and $165,089 in 2016, he currently ran his own business that had yet to make a profit, and he had not made a good faith effort to secure gainful employment since being let go from his job and was capable of earning more income than he reported. Myers v. Myers, 2020 Va. App. LEXIS 111 (Va. Ct. App. Apr. 14, 2020).

Circuit court, in denying a former husband’s motion to modify spousal support, noted the husband’s mandatory retirement but also found that the husband was still young at fifty-eight years old and, unlike the wife, was not working full-time and two part-time jobs. These findings were not an imputation of income to the husband, who had obtained lower paying employment, or a finding of voluntary underemployment, but, rather, were general findings related to the parties’ circumstances at the time of the modification hearing. Jones v. Jones, 2020 Va. App. LEXIS 190 (Va. Ct. App. July 7, 2020).

Trial court’s decision not to impute to the wife was proper; there was nothing unreasonable in the trial court’s decision to allow wife to continue to homeschool the parties’ daughter, which was initiated at the husband’s insistence, without incurring the financial penalty that would have been associated with imputing income to her. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Evidence supported the trial court’s conclusion that the husband’s income was higher than $8,000 a month and was sufficient to support the trial court’s decision to set his monthly income at $21,188; the record did not support the husband’s claim that the trial court impermissibly imputed income to him. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Trial court did not err in failing to impute income to wife where the record contained ample evidence from which the trial court could have found that appellee wife was not voluntarily underemployed, and in spite of appellant’s claims, appellee testified that she had been unable to locate employment other than her babysitting job, through which she earned $520 per month, the telephone company, from which she had earned $20,000 a year, was unwilling to rehire her, and that she had been unable to locate any other employment because she did not have experience or transportation; she testified that she did not have a driver’s license or a car and lacked the funds to obtain either one; and she would have to pay part-time child care for her 11-year-old daughter if she took employment away from the home. Floyd v. Floyd, 17 Va. App. 222, 436 S.E.2d 457, 10 Va. Law Rep. 396, 1993 Va. App. LEXIS 500 (1993).

The trial court properly refused to impute unproven amounts of earnings on retirement funds which were not currently being withdrawn where (1) neither party was retired, and the wife was not currently receiving, or about to receive, any payments from the pension, and (2) the husband presented only generalities and possibilities, rather than evidence, to support the amount of income he sought to impute to the wife. Stipe v. Stipe, 1998 Va. App. LEXIS 107 (Va. Ct. App. Feb. 24, 1998).

The trial court properly refused to impute income to the wife for earnings on the cash award to her, as such award was not available for investment, where the wife testified that she used the award for attorney’s fees and a down payment on her residence. Stipe v. Stipe, 1998 Va. App. LEXIS 107 (Va. Ct. App. Feb. 24, 1998).

Imputation of income was properly denied where husband presented no evidence of job availability in wife’s field, the effect of her long departure from the work force on her ability to obtain a job, or her potential earnings, and, further, the custody arraignment to which husband agreed placed the children with wife during week days, and there was no evidence that positions were available which allowed her the time to both work and fulfill her responsibilities as the primary custodian of the children. Cushen v. Cushen, 1998 Va. App. LEXIS 448 (Va. Ct. App. Aug. 18, 1998).

Trial court did not err in declining to impute income to mother for purposes of child and spousal support, based on finding that it was important for mother to be available for parties’ autistic son. Grymes v. Grymes, 1999 Va. App. LEXIS 607 (Va. Ct. App. Oct. 26, 1999).

Where a spouse has not worked during a marriage and where there is no evidence that she has unreasonably refused employment, a trial court does not abuse its discretion by granting that spouse a reasonable period of time to secure employment before imputing income. Brooks v. Brooks, 2001 Va. App. LEXIS 3 (Va. Ct. App. Jan. 9, 2001).

Trial court did not abuse the court’s discretion in failing to impute income to a wife because credible reasons supported the court’s decision that imputation of income was not appropriate; the trial court carefully limited the court’s ruling to the conditions existing at the time of the final divorce decree, and the court left open the possibility of re-calibrating the support award at some later date as conditions changed because the final decree included the caveat that, at some later date, the support award could be modified upon either party’s showing of a material change in circumstances. Furthermore, the trial court had no obligation to base the court’s spousal support calculation in any way upon the husband’s unconventional accounting practices. Brandau v. Brandau, 52 Va. App. 632, 666 S.E.2d 532, 2008 Va. App. LEXIS 425 (2008).

Trial court did not err in refusing to impute income to a wife for spousal support purposes as: (1) although the wife had a college education and worked earlier in the marriage, earning $30,000 per year at her last full-time job, she had not worked in 10 years in order to care for the parties’ children, and she needed two years of training to become a teacher; (2) there was no evidence of recent past earnings upon which to impute income to the wife; (3) there was no evidence of available child care services, or their cost; and (4) the parties had agreed that the wife would stay home with the children until they entered school. Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008).

The judge was not required to consider wife’s separate estate assets in determining a modification of spousal support. The wife’s income is instead the crucial issue, and the record demonstrates that wife fully disclosed her income through testimony and interrogatories. The judge likewise considered all of husband’s income. To the extent that husband had the ability to withdraw from his retirement accounts without penalty, the judge properly considered this source of income. Allison v. Allison, 1996 Va. App. LEXIS 271 (Va. Ct. App. Apr. 16, 1996).

Chancellor erred by awarding wife lump sum spousal support and by failing to provide for a reservation of spousal support, where there were no special circumstances or compelling reasons for wife to receive a lump sum award in lieu of periodic spousal support. Frazier v. Frazier, 2000 Va. App. LEXIS 214 (Va. Ct. App. Mar. 21, 2000).

No error in failing to impute income. —

Two years into their 17-year marriage, the parties agreed that the wife would stop working and stay home with their children. After their divorce, she was not required to return to work immediately in order to avoid the imputation of income, as the husband failed to present credible evidence that she was voluntarily unemployed. McKee v. McKee, 52 Va. App. 482, 664 S.E.2d 505, 2008 Va. App. LEXIS 378 (2008).

In determining an award of spousal support, a court may impute income to a party who is voluntarily unemployed or underemployed. Leiffer v. Leiffer, No. 1035-96-2 (Ct. of Appeals Mar. 18, 1997).

A court may under appropriate circumstances impute income to a party seeking spousal support. Hare v. Hare, 2000 Va. App. LEXIS 306 (Va. Ct. App. Apr. 25, 2000).

When a wife was voluntarily unemployed to enable her to remain home with the parties’ child, the trial court could properly consider this, under § 20-107.1 , in denying her an award of spousal support, and § 20-107.1 E 4 and 5 did not require such an award. Turonis v. Turonis, 2003 Va. App. LEXIS 130 (Va. Ct. App. Mar. 11, 2003).

Imputed income due to voluntary employment decision. —

Trial court did not abuse its discretion in imputing income to a husband for purposes of setting the husband’s child support and spousal support obligations where: (1) the husband voluntarily left his higher-paying job to care for his seriously ill father, and could only obtain a lower-paying job on his return to the work force; (2) the husband continued to make payments on his truck, although he ceased to make the court-ordered mortgage payments and payments on his wife’s vehicle; (3) the husband testified that he paid nearly $1,000 in cash a month to rent a room in a friend’s home, but that he had no lease agreement; and (4) the husband was aware of the level of his legal obligation to support his wife and children and that this obligation continued after he relocated. Webb v. Webb, 2004 Va. App. LEXIS 197 (Va. Ct. App. Apr. 27, 2004).

Where a wife had cared for the couples’ home and their children during their marriage, and the trial court had found that this had contributed to the husband’s success, a refusal to impute income to her was not an abuse of discretion and an award of her fees and costs, both at the trial level and on appeal, was reasonable. Kotara v. Kotara, 2006 Va. App. LEXIS 257 (Va. Ct. App. June 13, 2006).

Trial court did not commit error when, in making a spousal support award, it declined to impute additional income to a wife because the court was not required to accept the testimony of the husband’s vocational expert about what the wife could earn if she worked full time, and it could properly find that it was appropriate for the wife to continue to work part-time so she could care for the parties’ children. Lesesne v. Zablocki, 2007 Va. App. LEXIS 6 (Va. Ct. App. Jan. 9, 2007).

The trial court, in determining whether to award support and the amount thereof, may consider earning capacity as well as actual earnings in fashioning the award so long as it applies “the circumstances in existence at the time of the award.” Stubblebine v. Stubblebine, 21 Va. App. 635, 466 S.E.2d 764, 1996 Va. App. LEXIS 98 (1996).

Comparisons of statutory definitions of gross income. —

Trial court erred in deeming a wife’s inheritance as a gift, prize, or award under subsection C of § 20-108.1 , as such statute only applies to child support calculations, not determining spousal support. Even importing the definition of gross income from subsection C of § 20-108.1 for the purposes of determining spousal support, the wife was erroneously required to invade the principal of her asset for her support, because the statute clearly states it is the income from the source, not the source itself that is subject to consideration. Lopez v. Lopez, 2004 Va. App. LEXIS 303 (Va. Ct. App. June 29, 2004).

Taxes on lottery winnings. —

In determining his support obligation, the trial court properly considered the annual payments he made to the wife from his lottery winnings and factored into the support amount the tax benefits the wife received by his paying taxes on the full amount of the annual lottery payout. Cash v. Clark, 2007 Va. App. LEXIS 410 (Va. Ct. App. Nov. 13, 2007), overruled in part, Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

The current income of wife is one factor that the chancellor is required to consider in fashioning the final spousal support award to her. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

The chancellor’s failure to include wife’s current rental income into the calculation of her net monthly income, standing alone, was not necessarily a fatal defect in the manner in which the chancellor fashioned the final award; however, the court of appeals treated the failure to consider this income as one of several considerations in its review of the final award. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Consideration of rental income. —

A court did not err in finding that a husband had no net rental income attributable to a condominium for purposes of spousal support where the husband presented evidence that the expenses for the condominium mortgage, homeowner’s fees, maintenance, repairs and the like exceeded the amount collected in rent. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

A court erred in failing to include rental income when calculating a husband’s child support obligation where the husband claimed no reasonable business expenses associated with the property. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Business income. —

Circuit court properly considered any income a husband received from his interests in companies, whether distributed or not, in calculating spousal support under § 20-107.1 because actual distributions were clearly income and undistributed proceeds remained within the companies. Patel v. Patel, 61 Va. App. 714, 740 S.E.2d 35, 2013 Va. App. LEXIS 110 (2013).

Business expenses. —

A court did not err in excluding from a husband’s gross income sums paid by his corporation for the lease and operation of an automobile, utilities, lawn care, pest control, appliances, furnishings, entertainment, meals, disability, life, and health insurance, and unreimbursed medical expenses where the evidence, viewed in the light most favorable to the husband, supported a finding that these costs were legitimate business expenses. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Amounts paid by a husband’s corporation for personal items, including the purchase of clothing, dry cleaning, and accounting services for the husband in his personal capacity were not reasonable business expenses and were to be included in calculating the husband’s gross income. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Trial court did not err in calculating a husband’s gross income because it reviewed the husband’s business expenses and determined that without sufficient explanation from the husband, certain expenses were not reasonable and could not be deducted from gross income for support purposes. Sitoula v. Sitoula, 2014 Va. App. LEXIS 196 (Va. Ct. App. May 20, 2014).

Circuit court did not abuse its discretion when it awarded the wife spousal support because the evidence supported the circuit court’s calculation of the husband’s income; the husband earned more than $20,000 per month, and he spent and withdrew an average of $44,807 per month from corporate accounts and used those funds to pay personal expenses or he deposited them into his personal accounts. Parsons v. Parsons, 2014 Va. App. LEXIS 402 (Va. Ct. App. Dec. 9, 2014).

Trial court did not err in not allowing the husband to deduct some business expenses from his gross income for spousal support purposes as the trial court’s decision to reject the husband’s claim regarding business expenses was reasonable because the trial court could have concluded that certain categories of expenses were excessive and appeared to have been double counted, deducted once by the business and again by husband. Hassell v. Hassell, 2016 Va. App. LEXIS 310 (Va. Ct. App. Nov. 15, 2016).

Investment income on wife’s equitable distribution award. —

In determining husband’s spousal support obligation, court was required to consider investment income that wife could earn on her equitable distribution award. Ferraro v. Ferraro, 2000 Va. App. LEXIS 164 (Va. Ct. App. Mar. 7, 2000).

In determining the amount of spousal support to award, the court is required to consider the income generating potential of the marital award as well as other income and expenses generated by the asset assignment constituting the equitable distribution award and, where the case is remanded following an appeal with instructions to recalculate the equitable distribution award, the court must also reconsider the spousal support award. Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908, 2000 Va. App. LEXIS 605 (2000).

Where wife had more net disposable income as result of award. —

The court of appeals treated the fact that wife had more net disposable income than husband as a result of the award in her favor as an additional consideration in its review of the final award in this particular case. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Award of support in excess of husband’s present income held not abuse of discretion. —

Where the trial judge was justified in finding that the husband was capable of earning at least $20,000 annually, the trial court found that the husband was not working up to his potential and was not earnestly trying to secure better employment, the amount of child support and spousal support fixed by the trial court was less than 50% of his earning capacity, and there was credible evidence in the record to support the judgment of the trial court, the trial court did not abuse its discretion by awarding child support and spousal support in excess of the husband’s present income. Bell v. Bell, No. 0558-86-3 (Ct. of Appeals Jan. 9, 1987).

Error to attribute corporate earnings to husband. —

A trial court erred in calculating a husband’s monthly earnings based on the amount shown on his income tax return because that amount included his portion of the net profit of a corporation of which he was half owner and the interest income retained by the corporation, which was reported on his personal income tax return due to the Subchapter S status of the corporation, not because he actually received that amount; the uncontradicted evidence presented by the husband was that he actually received substantially less than the amount shown on his tax return and the amount he actually received should have been used in determining his obligation to pay spousal support. Lee v. Lee, 2000 Va. App. LEXIS 689 (Va. Ct. App. Oct. 3, 2000).

Social security benefits to which wife is entitled in her own right cannot be considered as spousal support. Blevins v. Blevins, 225 Va. 18 , 300 S.E.2d 743, 1983 Va. LEXIS 187 (1983) (decided under former § 20-107 ).

Where a divorce decree provided that the wife “shall continue to receive her monthly social security and black lung benefits as her sole spousal support,” it was error to consider the black lung benefits as spousal support, since the benefits themselves do not constitute “contributions” for purposes of the black lung eligibility requirement that there be a court order requiring the husband to make substantial contributions to his wife’s support. Blevins v. Blevins, 225 Va. 18 , 300 S.E.2d 743, 1983 Va. LEXIS 187 (1983) (decided under former § 20-107 ).

G.Property Disposition.

Spousal support reexamined where case remanded for reconsideration of property disposition. —

This section directs the court to consider various factors, including the provisions made with regard to the marital property under § 20-107.3 . Since the provisions with regard to marital property may be changed on remand, the trial court must necessarily reexamine spousal support in the light of the new marital property award. Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18, 3 Va. Law Rep. 2186, 1987 Va. App. LEXIS 169 (1987).

One of the factors to be considered under this section in determining spousal support and maintenance is what provisions are made with regard to the marital property under § 20-107.3 . Where the disposition of marital property is to be considered on remand, the court must necessarily reexamine spousal support in light of new or different findings resulting from the additional proceedings. Robinette v. Robinette, 4 Va. App. 123, 354 S.E.2d 808, 3 Va. Law Rep. 2151, 1987 Va. App. LEXIS 170 (1987).

Spousal support award had to be reexamined in the light of whatever new or different considerations flowed from the additional proceedings on an equitable distribution award; because factors pertinent to spousal support were related to the equitable distribution award, the spousal support award was reversed and remanded for adjudication in accordance with § 20-107.1 .Whitaker v. Whitaker, 2006 Va. App. LEXIS 494 (Va. Ct. App. Oct. 31, 2006).

Trial court had to re-examine the spousal support awarded to a wife in light of the valuation of a husband’s business because § 20-107.1 required the trial court to consider the provisions made with regard to the marital property under § 20-107.3 ; the trial court erred in not assigning a value to a husband’s business and not including it in the equitable distribution of the marital estate pursuant to § 20-107.3 because the wife presented sufficient, credible evidence on its value. Collins v. Collins, 2013 Va. App. LEXIS 26 (Va. Ct. App. Jan. 22, 2013).

Reversible error for trial court to enter support award prior to equitable distribution. —

Where no reason was apparent in record as to why spousal support award was entered prior to entry of its equitable distribution award, it was reversible error for trial court to make its final award requiring husband to pay lump sum or periodic spousal support award to wife for herself and their child, without considering income which may result from monetary award, if any, to which wife would be entitled. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Separation between considerations of spousal support and equitable distribution. —

The appropriate separation between considerations of spousal support and considerations of an equitable distribution of marital wealth prevents a “double dip” by a spouse who seeks and receives encumbered marital property under § 20-107.3 and also seeks and receives spousal support under this section. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Although this section requires the trial court to consider the provisions made with regard to the marital property under § 20-107.3 in fashioning spousal support, it is improper for a trial court to treat assets divided in equitable distribution as income. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Income used for support and as asset for distribution not “double dipping.” —

Where husband contended that trial court erred by considering his share of fees received from his former law firm as intangible assets available for equitable distribution and then considered the same funds as income for purposes of spousal and child support, the fact that earned income was used as the basis for determining and paying support, and that retained income could be an asset for equitable distribution, did not constitute “double dipping.” Norris v. Norris, 1997 Va. App. LEXIS 535 (Va. Ct. App. Aug. 5, 1997).

No authorization to fix spousal support award to compensate for property received under § 20-107.3 . —

While this section requires a chancellor to consider the provisions made with regard to the marital property under § 20-107.3 , this requirement is a practical means by which the chancellor may fix a proper spousal support award in light of the financial result of the monetary award. This requirement, however, is not an authorization to fix a spousal support award to compensate a spouse further for marital property received pursuant to § 20-107.3 .Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

The outstanding obligations on marital property are properly considered when § 20-107.3 determinations are made and the marital wealth is equitably distributed. The same obligations are not to be factored again into this section. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

There was a clear abuse of discretion when the chancellor fashioned the spousal support award that effectively required husband to satisfy the mortgage obligations on the marital home he was required to convey to wife. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Mortgage expenses. —

Trial court properly considered a former wife’s mortgage expenses in calculating her former husband’s spousal support obligation, even though under the parties’ divorce settlement she obtained the marital home and agreed to pay the mortgage thereon. The “indemnify and hold harmless” provision of the settlement agreement did not prevent her from seeking support for her reasonable housing expenses under § 20-107.1 ; it merely assured that she bore the obligation of the mortgage. McKee v. McKee, 52 Va. App. 482, 664 S.E.2d 505, 2008 Va. App. LEXIS 378 (2008).

Lump sum awards. —

A lump sum award under this section is a form of spousal support and is determined not by evaluating property interests but by consideration of the same factors which are used in determining a periodic award of spousal support. Dixon v. Pugh, No. 1647-90-2 (Ct. of Appeals Aug. 13, 1991).

Since the trial court had to reconsider the equitable distribution of property, the appellate court did not have to rule on whether the trial court erred in awarding the spouse a lump sum spousal support award as opposed to periodic spousal support; accordingly, the spousal support award was vacated and the case was remanded to the trial court to reconsider its ruling on the spousal support award in light of the new equitable distribution award it would be making. Fowler v. Fowler, 2006 Va. App. LEXIS 93 (Va. Ct. App. Mar. 14, 2006).

Lump sum award based on value of separate property error. —

This section does not authorize the trial court to make a lump sum award of spousal support based only on evidence of the value of the separate property of the other spouse. Westerberg v. Westerberg, 12 Va. App. 657, 405 S.E.2d 638, 7 Va. Law Rep. 2911, 1991 Va. App. LEXIS 137 (1991).

Fact amount of support exceeds needs not grounds for reversal. —

The mere fact that the amount of support exceeds the basic needs of the wife is not adequate grounds to reverse an award. Putz v. Bean, No. 1588-88-4 (Ct. of Appeals Apr. 3, 1990).

Re-examination of award in light of reversal of equitable distribution award. —

While a trial court did not abuse the court’s discretion in awarding a wife $3,110 per month in spousal support, the court was directed, on remand, to reconsider the issue of spousal support because an equitable distribution award had been reversed and the case remanded for reconsideration. Spousal support needed to be re-examined in the light of whatever new or different considerations flowed from the additional proceedings. Rosedale v. Rosedale, 2008 Va. App. LEXIS 341 (Va. Ct. App. July 22, 2008).

Trial court abused discretion. —

Circuit court abused its discretion in setting the amount of a wife’s spousal support award because the circuit court violated the statutory schemes of subsection E of § 20-107.1 and § 20-107.3 by granting the wife additional marital property to supplement her spousal support award; marital property could not be used to satisfy spousal support obligations. Walk v. Walk, 2008 Va. App. LEXIS 154 (Va. Ct. App. Apr. 1, 2008).

H.Written Findings.

Lack of evidentiary support for findings constitutes abuse of discretion. —

In a determination involving spousal support, if the court’s findings do not have evidentiary support in the record, then the court has abused its discretion. Woolley v. Woolley, 3 Va. App. 337, 349 S.E.2d 422, 3 Va. Law Rep. 1063, 1986 Va. App. LEXIS 368 (1986).

Requisite contents of trial court opinion. —

Provided the record indicates the court’s consideration of these factors, as in the instant case, the trial court need not disclose the totality of its considerations nor must it address each factor point by point in its opinion. Covington v. Covington, No. 0995-96-2 (Ct. of Appeals Dec. 17, 1996).

Decree denying support must contain findings where divorce based on separation. —

When a divorce decree, grounded in § 20-91 (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 § 20-91 (1) , (3), or (6) or § 20-95 , or (b) that, in consideration of the several factors enumerated in this section, 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).

Amendment did not change requirement chancellor make certain finding. —

This section was amended, effective July 1, 1988, and substituted “the provisions of § 20-91(1) ” for “any provision of (1), (3) or (6) of § 20-95 ”; although this statutory modification changes the substantive law under which Collins v. Collins 233 Va. 245 , 355 S.E.2d 322 (1978), was decided, it does not change the requirement that the chancellor make a finding that, in consideration of the several factors enumerated in this section, the equities of the parties weighed against an award of spousal support. Miller v. Miller, No. 0647-89-3 (Ct. of Appeals June 12, 1990).

Despite contention award excessive compared to conservative lifestyle, no abuse of discretion. —

Where husband contends that the trial court did not properly consider the standard of living of the parties in determining the spousal support award, and, as a result, awarded the wife an excessive award when compared to their “conservative” lifestyle, there was no abuse of discretion by the trial court because the statutory factors were discussed in detail in the court’s opinion. Huger v. Huger, 16 Va. App. 785, 433 S.E.2d 255, 10 Va. Law Rep. 53, 1993 Va. App. LEXIS 315 (1993).

Court must consider all factors. —

In order to exercise its discretion, the court shall consider all the specific factors named in the statute and cannot rely upon one factor alone and decline to consider the rest. Bristow v. Bristow, 221 Va. 1 , 267 S.E.2d 89, 1980 Va. LEXIS 206 (1980).

The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court’s findings must have some foundation based on the evidence presented. Woolley v. Woolley, 3 Va. App. 337, 349 S.E.2d 422, 3 Va. Law Rep. 1063, 1986 Va. App. LEXIS 368 (1986).

The trial judge must consider all the factors enumerated in this section, since consideration entails more than a recitation in the record or decree that all factors have been considered. The legislature’s inclusion in 1982 of specific factors in the statute envisioned meaningful substantive consideration in the decision-making process. Gibson v. Gibson, 5 Va. App. 426, 364 S.E.2d 518, 4 Va. Law Rep. 1746, 1988 Va. App. LEXIS 3 (1988).

In fixing the amount of the spousal support award, a review of all of the factors contained in this section is mandatory, and the amount awarded must be fair and just under all of the circumstances of a particular case. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

The trial court is required to consider all of the factors listed in this section, and its failure to do so is reversible error. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

This section commands that, in order to exercise its discretion, the trial court shall consider the specific factors contained in this section; failure to do so is reversible error. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

A spouse’s entitlement to support and the amount of the award are matters within the sound discretion of the trial court. In determining the amount of an award, the court must consider all of the factors set forth in this section. The court’s decision is presumed correct and will not be disturbed unless some injustice has been done. Stubblebine v. Stubblebine, 21 Va. App. 635, 466 S.E.2d 764, 1996 Va. App. LEXIS 98 (1996).

While the standard of living established during the marriage and the financial resources of the parties are two factors the court must consider in making an award, there are other factors as well. These factors include the duration of the marriage, the age, health, and earning capacity of the parties, and the size of the marital award. The court must consider all of these factors, and the failure to do so constitutes reversible error. Theismann v. Theismann, 22 Va. App. 557, 471 S.E.2d 809, 1996 Va. App. LEXIS 443 (1996).

When considering an initial spousal support order or a modification, the trial court must consider each spouse’s current circumstances, including the fact that a party has retired, the parties’ plans and expectations associated with retirement, and each parties’ earning capacity and needs at the time of the hearing. Stubblebine v. Stubblebine, 22 Va. App. 703, 473 S.E.2d 72, 1996 Va. App. LEXIS 529 (1996).

Appellate court upheld the trial court’s award of spousal support to a wife for a duration of six years, beginning at $12,000 per month for the first year following entry of the divorce decree, $10,000 per month in years two, three, and four, $7,500 per month in year five, concluding with $5,000 per month in year six, because the trial court conducted a detailed evaluation of the wife’s claims for monthly expenses and found the same commensurate with her needs and accustomed standard of living, and the trial court had properly considered every statutory factor and detailed the circumstances supporting its decision. Bruemmer v. Bruemmer, 46 Va. App. 205, 616 S.E.2d 740, 2005 Va. App. LEXIS 298 (2005).

Spousal support award of $3,000 per month to the wife was proper for a 20-year marriage where, inter alia, both parties were in their mid-40s, where the trial court imputed income of $150,000 per year to husband, and the wife’s projected income was $25,000 per year; the trial court properly considered the factors in making the spousal support award. McNamara v. McNamara, 2006 Va. App. LEXIS 55 (Va. Ct. App. Feb. 14, 2006).

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 erred by failing to comply with subsection F where the trial judge explained his award to wife of $400 per month in spousal support solely as follows: The court does not find that the wife’s actions surrounding the separation of the parties were such that they would bar her from recovering spousal support or of the nature that they would constitute an independent ground for divorce. Kennedy v. Kennedy, 2006 Va. App. LEXIS 471 (Va. Ct. App. Oct. 24, 2006).

Need for specific findings. —

Whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court. Having decided that spousal support is appropriate, the court must base the award upon due consideration of the factors enumerated in this section, as shown by the evidence, and it will not be disturbed except for a clear abuse of discretion. However, it is not necessary for the chancellor to recite specific findings with respect to the numerous factors in support of the determination. Rose v. Rose, 1994 Va. App. LEXIS 741 (Va. Ct. App. Dec. 20, 1994).

Whether a spouse is entitled to spousal support, and if so how much, is a matter within the discretion of the court. Although the trial court is required to consider all of the factors set forth in this section, this does not mean that it is required to quantify or elaborate exactly what weight it has given to each, provided the court’s findings have some foundation based on the evidence presented. McBride v. McBride, No. 1744-93-1 (Ct. of Appeals Jan. 10, 1995).

Even if the evidence did not support a trial court’s spousal support award, the appellate court was still required to affirm the award since the wife bore the burden of producing evidence from which the trial court was to award spousal support; having failed to produce sufficient evidence at trial, the wife was not heard on appeal to claim that the evidence was insufficient. Holohan v. Holohan, 2004 Va. App. LEXIS 121 (Va. Ct. App. Mar. 23, 2004).

Because the trial court’s decree neither contained nor incorporated any written explanation for why it denied a wife’s request for spousal support when a support commissioner had recommended making an award for a defined duration, the trial court failed to comply with subsections E and F of § 20-107.1 .Bolton v. Bolton, 2007 Va. App. LEXIS 255 (Va. Ct. App. July 3, 2007).

Trial court erred in the husband and wife’s divorce case in not making specific written findings in determining the amount of spousal support to be awarded to the wife and in determining the duration of that award; subsection F of § 20-107.1 required such written findings to be made that stated the § 20-107.1 E factors the trial court relied on in arriving at its spousal support decision, in order for the appellate court to be able to review that decision and determine how the trial court arrived at the award that it entered. Berryhill v. Berryhill, 2007 Va. App. LEXIS 284 (Va. Ct. App. July 31, 2007).

Trial court did not provide sufficient written findings and conclusion, as required by subsection F of § 20-107.1 , where it made only two specific findings of fact and did not address the parties’ differing positions on the wife’s earning potential and the wife’s alleged inclusion of adult child expenses in her budget, or the husband’s alleged understatement of income and overstatement of expenses. Pilati v. Pilati, 59 Va. App. 176, 717 S.E.2d 807, 2011 Va. App. LEXIS 380 (2011).

New spousal support hearing was ordered where the record on appeal failed to include any written findings addressing the subsection E spousal support factors, as required by subsection F. Mograbi v. Abdellatif, 2012 Va. App. LEXIS 160 (Va. Ct. App. May 15, 2012).

Trial court erred because the court failed to make written findings identifying the basis for the nature, amount, and duration of a defined duration award of spousal support, as required by statute. Therefore, remand of the case to the circuit court was necessary for it to make additional findings. Cleary v. Cleary, 63 Va. App. 364, 757 S.E.2d 588, 2014 Va. App. LEXIS 170 (2014).

Although a periodic award of spousal support for a defined duration might be appropriate where the trial court made written findings that a specific future increase in the recipient’s income was reasonably likely, because the written findings by the trial court did not sufficiently state on the record the basis for its assumption that spousal support would no longer be appropriate after five years, the appellate court could not review the correctness of the assumption; on remand, and based on the existing record, the trial court could provide additional written findings to identify the factors that supported its award of defined-duration spousal support or it could reconsider its award. Ross v. Ross, 2017 Va. App. LEXIS 331 (Va. Ct. App. Dec. 19, 2017).

Trial court failed to comply with the statutory requirements of this section, which constituted reversible error, because it’s final order failed to specify any of the statutory factors it relied on in making the spousal support determination and fails to state the basis for the nature, amount, and duration of the award. Sizov v. Sizov, 2020 Va. App. LEXIS 299 (Va. Ct. App. Dec. 8, 2020).

The ability of the husband to pay is determined not necessarily by the amount of his actual earnings, but also by his ability to earn and what, under all the circumstances, including his possessions, will be a fair and just allotment. Taylor v. Taylor, 203 Va. 1 , 121 S.E.2d 753, 1961 Va. LEXIS 212 (1961).

Increase in spendable income is a change in circumstance which may be considered in modifying award. Gold v. Gold, No. 1642-89-3 (Ct. of Appeals April 2, 1991).

When considering a petition to increase support based on a change in circumstances, the trial court is not obligated to limit its increase in proportion to the increase in expenses. Gold v. Gold, No. 1642-89-3 (Ct. of Appeals April 2, 1991).

Where the record showed that the wife had sustained a substantially diminished standard of living, but did not show reasonable or adequate justification for why that decreased standard should continue, a denial of spousal support, without explanation, constituted an abuse of discretion. Via v. Via, 14 Va. App. 868, 419 S.E.2d 431, 9 Va. Law Rep. 38, 1992 Va. App. LEXIS 189 (1992).

Trial judge considered tax consequences in setting spousal support, notwithstanding his statement that “I’ve not considered the tax consequences to the parties. I’ve considered that they are going to have to deal with their own tax consequences,” as such statement demonstrated that the judge did consider the factor, but gave little weight to it. Stipe v. Stipe, 1998 Va. App. LEXIS 107 (Va. Ct. App. Feb. 24, 1998).

Statutory factors followed. —

Where, in a thorough opinion letter to counsel, the trial judge explained his rationale for awarding wife spousal support and settling upon the amount, all within the context of the evidence and the relevant statutory factors; the decree expressly confirmed that the decision resulted from consideration of the statutory factors; and this recitation was supported by the record; the findings and conclusions of the trial court and attendant award were clearly fashioned in accordance with this section and the evidence. Rose v. Rose, 1994 Va. App. LEXIS 741 (Va. Ct. App. Dec. 20, 1994).

Trial judge gave due consideration to factors enumerated in this section and did not abuse his discretion where judge noted that, although husband made nearly all monetary contributions during parties’ 41 year marriage, wife had made significant nonmonetary contributions in raising parties’ four children and in assisting husband in his career, where judge stated that since both parties were in their mid-sixties their opportunities to secure education and training were largely academic, and where judge found that husband’s resources were vastly superior to those of wife. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

Trial judge did not abuse his discretion in rejecting the commissioner’s recommendation and awarding permanent monthly spousal support in the amount of $2000.00. The evidence of expenses submitted by wife indicated that her expenses were approximately $2000.00. Thus, while the trial judge did not specify the reason why the commissioner’s recommended amount of spousal support was reduced, there was substantial credible evidence in the record to support the trial judge’s decision. Bracken v. Bracken, 1993 Va. App. LEXIS 582 (Va. Ct. App. Nov. 30, 1993).

Trial court did not abuse its discretion. —

An award of $750 per month in permanent spousal support to the wife was not an abuse of discretion where: (1) although the parties cohabitated as husband and wife for only a short period, they continued to entertain the possibility of reconciliation and held themselves out as married for almost 10 years; (2) they traveled together on the husband’s business trips, vacationed together as a family with their child, and continued a sexual relationship; (3) the wife continued to contribute to the marriage and husband’s business; (4) the wife’s proffer indicated she had gross monthly income of $600, with expenses of $1,666; and (5) the husband’s proffer listed his gross monthly income as $11,000, with total expenses of $8,032. Phelps, Sr. v. Phelps, No. 1155-98-1 (Ct. of Appeals Dec. 22, 1998).

Sufficient evidence supported the trial court’s award to the wife of $1,500 per month in spousal support because: (1) the parties were married for almost nine years before they separated; (2) during the marriage, the husband attended dental school and the wife worked part-time, by agreement between the parties, in order to have more time to devote to child-rearing; (3) the wife was primary caregiver for the parties’ children, including the parties’ special needs daughter; (4) the husband had an average annual income for the past five years of over $150,000, which was three times the wife’s present annual income; and (5) based on the parties’ education, training, and experience, no evidence indicated that the disparity in the parties’ incomes would dissipate in the near future. Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005).

Trial court did not abuse its discretion in awarding spousal support to the wife, despite the husband’s claim that the trial court awarded the wife an amount of spousal support almost equal to the amount of the mortgage payment; the record showed that the trial court properly considered the factors in setting spousal support and the factors that were considered when the marital residence was distributed, including such matters as what the mortgage payments were, were not to be considered and were not considered by the trial court in setting the spousal support award under 20-107.1 . Bomar v. Bomar, 45 Va. App. 229, 609 S.E.2d 629, 2005 Va. App. LEXIS 93 (2005).

Spousal support award of $1,000 per month was upheld where the evidence showed that the wife, who had been a homemaker throughout most of marriage, earned only $14,000 per year at the time of the dissolution, while the husband had an annual income of more than six times wife’s annual income. Kincaid v. Kincaid, 2005 Va. App. LEXIS 249 (Va. Ct. App. June 28, 2005).

Trial court did not abuse its discretion in finding that a husband failed to show a material change in circumstances to warrant a reduction in his spousal support obligation as: (1) conflicting testimony was presented as to the parties’ income levels; (2) the husband’s income was found to be $21,100 per month and the wife’s income was found to be $3,596.50 per month; (3) while each subsection E factor was not specifically enumerated, the trial court properly considered the factors in finding that the husband failed to prove a material change in circumstances; (4) the husband’s failure to disclose complete financial information weighed against his credibility; (5) the wife’s employment was foreseeable; and (6) the husband’s income was dramatically more than the wife’s income. Kantor v. Kantor, 2006 Va. App. LEXIS 62 (Va. Ct. App. Feb. 14, 2006).

Trial court properly entered an award of spousal support in a divorce action, as the trial court properly weighed the governing factors outlined in subsection E of § 20-107.1 , properly determined the husband’s income, and properly found that a defined duration award was appropriate given the good health and age of the wife and her ability to generate income as a result of her education and the relatively short duration of the marriage. Hosier v. Hosier, 2007 Va. App. LEXIS 62 (Va. Ct. App. Feb. 20, 2007).

Trial court did not err in setting the amount and one-year duration of spousal support for the wife in the wife’s divorce case; the trial court stated that it considered all of the § 20-107.1 factors in setting spousal support and specifically noted the short duration of the marriage, the significant sum that each party would receive upon the sale of the marital property, the respective debt of the parties, the health and ages of the parties, and the parties’ work potential. Tesfay v. Tesfay, 2007 Va. App. LEXIS 127 (Va. Ct. App. Mar. 27, 2007).

Husband did not establish that the trial court erroneously applied the principle of the parental generosity rule when it modified the spousal support order and awarded the wife $3,500 per month because the record was replete with evidence indicating that the wife’s resources were inadequate to enable her to maintain the standard of living she enjoyed during the parties’ marriage. The wife had incurred significant expenses and liabilities during the interim between the termination of spousal support and her petition for spousal support, she had not been able to provide for her own retirement or maintain her standard of living, and, while the wife’s income had admittedly increased somewhat during that time, the trial court did not abuse its discretion in finding that her need was greater than the $1,500 per month awarded in 1998 — almost 10 years earlier. Grad v. Stone, 2007 Va. App. LEXIS 263 (Va. Ct. App. July 17, 2007).

Trial court could consider the circumstances surrounding the dissolution of the husband and wife’s marriage in determining the proper amount of spousal support that the wife should receive. The evidence in the record showed that the award, which the wife considered artificially low, was not made to punish the wife and that the trial court properly considered the statutory factors in subsection E of § 20-107.1 in making the award, including the wife’s income prior to becoming disabled, the parties’ lifestyle, and the lack of proof that the wife’s disability was permanent. McCauley v. McCauley, 2008 Va. App. LEXIS 82 (Va. Ct. App. Feb. 19, 2008).

Remand after improper consideration of fault. —

Where the trial court considered all of the factors enumerated in the statute, except that it should not have included the wife’s marital fault as a consideration under subdivision 9, remand was made to the trial court with instructions that it reconsider the $1,500 per month award of spousal support and modify the award to the extent that the wife’s uncorroborated desertion may have affected the amount of the award. Hurt v. Hurt, No. 0111-96-2 (Ct. of Appeals Jan. 21, 1997).

Trial court did not abuse discretion in its consideration of: (1) the parties’ earning capacities, obligations, and financial resources; (2) the standard of living established during the marriage; (3) the property interests of the parties; and (4) the evidence concerning the value of an outstanding marital debt and, therefore, the award of spousal support was summarily affirmed. Williams v. Williams, No. 2122-97-4 (Ct. of Appeals April 21, 1998).

Where a trial court considered, inter alia, the parties’ earning capacities, obligations, needs, and financial resources in accordance with subsection E of § 20-107.1 , there was an evidentiary foundation supporting the award of permanent spousal support to a wife. Whitehead v. Whitehead, 2003 Va. App. LEXIS 139 (Va. Ct. App. Mar. 18, 2003).

Trial court abused discretion. —

Because the husband’s income was insufficient to pay the cost of either party’s basic necessities, and because their needs appeared to be basically equivalent, the trial court abused its discretion in awarding the wife a significantly disproportionate share of her husband’s income. There was no explanation as to why the court awarded the wife 71 percent of the husband’s income, leaving him with insufficient funds to pay for his basic necessities, and no justification for such action was apparent from the record. Justice v. Justice, 1995 Va. App. LEXIS 212 (Va. Ct. App. Feb. 28, 1995).

The trial court erred by awarding wife 50 percent of the $13,000 in retirement benefits husband earned during his employment with the Commonwealth of Virginia because the portion of the retirement proceeds that were earned after the parties separated are the husband’s separate property. Retirement benefits earned after spouses have last separated, with the intent to remain permanently separated, are not marital property and, therefore, not subject to equitable distribution. Cunningham v. Cunningham, 1996 Va. App. LEXIS 524 (Va. Ct. App. July 23, 1996).

In failing to distinguish spousal support from property distribution as required by the statutory framework, the trial court committed reversible error; such treatment not only reflects an erroneous application of the law, but also precludes principled review. Dotson v. Dotson, 24 Va. App. 36, 24 Va. App. 40, 480 S.E.2d 131, 1997 Va. App. LEXIS 3 (1997).

The trial court abused its discretion when it awarded the wife support in the amount of $500, rather than the $1000 she requested, in light of the significant gap between her post-equitable distribution monthly deficit and the husband’s post-equitable-distribution monthly surplus and the stark contrast between their respective physical conditions and earning capacities. Silcox v. Silcox, 1998 Va. App. LEXIS 130 (Va. Ct. App. Mar. 3, 1998).

A trial court’s failure to award a wife spousal support was not supported by the evidence where, although the wife had a master’s degree in business administration, the record showed that she did not work outside of the home because all three of the parties’ children were below school age, where the record failed to show that the wife had income sufficient to meet her needs or to provide the basic necessities, and where, although the evidence showed that the wife had substantial assets, it failed to show that the assets had income generating potential. Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Trial court erred as a matter of law in its application of subsection F of § 20-107.1 because the trial court did not actually fix the amount of spousal support, and nothing in the record indicated the trial court knew what amount of support it was actually awarding the wife when it announced its decision; although the record showed that the trial court considered the factors listed in subsection E of § 20-107.1 , thereby fulfilling the first statutory mandate, the trial court then directed the parties to “plug those numbers in” the local guidelines, and in its final order, the trial court adopted the spousal support figure derived from the guidelines worksheets. Coleman v. Coleman, 2011 Va. App. LEXIS 356 (Va. Ct. App. Nov. 22, 2011).

V.Noncompliance With Decree.

The court has ample power in contempt proceedings to enforce its order, respecting alimony, support of children, etc. Boaze v. Commonwealth, 165 Va. 786 , 183 S.E. 263 , 1936 Va. LEXIS 252 (1936).

While the remedy of imprisonment for failure to pay alimony is severe and harsh, and therefore should not be enforced except where it appears that the defendant is contumacious, still where this does appear there should be no hesitation in imposing the penalty. West v. West, 126 Va. 696 , 101 S.E. 876 , 1920 Va. LEXIS 20 (1920).

Provided decree expressly orders payment thereof. —

When an agreement is confirmed and made a part of the divorce decree, but the decree does not expressly order the husband to comply with the agreement, it is not a decree for the payment of alimony, and a failure to perform the obligations under the agreement does not constitute a sufficient basis to hold the husband in contempt. Martin v. Martin, 205 Va. 181 , 135 S.E.2d 815, 1964 Va. LEXIS 162 (1964).

Pendente lite orders terminate on the death of the payor spouse. Pendente lite orders were terminated on the death of the payor spouse, as the death also abated the divorce action, making the pendente lite order void. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426, 2004 Va. App. LEXIS 454 (2004).

Wife’s tax returns irrelevant in action for delinquent payments. —

Since the court was without authority to make any change as to past due installments of alimony and child support, the wife’s tax returns for 10 years preceding an action for delinquent support payments were irrelevant. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Laches is not a defense to noncompliance with the provisions of a lawful decree ordering monthly payments for alimony and child support. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986); Bennett v. Bennett, 1997 Va. App. LEXIS 611 (Va. Ct. App. Sept. 23, 1997).

CIRCUIT COURT OPINIONS

Subject matter jurisdiction. —

Trial court found that it lacked subject matter jurisdiction to modify an award of equitable distribution and terminate direct payments to a former husband’s ex-wife from the husband’s military retirement based on an alleged change of circumstances. Accordingly, the court would not entertain the question of whether the ex-wife’s alleged participation in a relationship with a partner whom the ex-wife had allegedly “collared” was a contractually binding marriage as defined in the parties’ separation agreement. Hansen v. Hansen, 99 Va. Cir. 420, 2018 Va. Cir. LEXIS 134 (Chesapeake Aug. 2, 2018).

Nature and purpose of suit for alimony. —

Where there was scant evidence of the parties’ relative needs and abilities and the wife’s sole purpose in seeking spousal support was to equalize a post-bankruptcy marital debt, the court declined to make a spousal support award. Mossor v. Mossor, 2002 Va. Cir. LEXIS 322 (Roanoke Sept. 16, 2002).

Reservation of right. —

Court lacked jurisdiction to make the spousal support award under this section, because the parties were married for about 10 years and the reservation could only have lasted for a period equal to 50% of that time, or around five years, and the award was made about eight years after parties separated. Reynolds v. Reynolds, 2016 Va. Cir. LEXIS 49 (Roanoke Mar. 14, 2016).

No authority to retroactively order restitution. —

Ex-husband was not entitled to any restitution or reimbursement for the payments erroneously made for around 15 years, because this section did not provide authority to retroactively order restitution for erroneously made spousal support awards. Reynolds v. Reynolds, 2016 Va. Cir. LEXIS 49 (Roanoke Mar. 14, 2016).

Rehabilitative support. —

In order to allow a wife to continue her education and put her in a better position to support herself in the future, rehabilitative support for three years, which was the essence of equity given her years of care for her husband, as well as child support were awarded. Edgar v. Edgar, 2003 Va. Cir. LEXIS 211 (Fairfax County Nov. 12, 2003).

Factors considered. —

In considering relief under § 20-107.1 , the court examines the factors surrounding the divorce, the nature of the distribution under § 20-107.3 , the present financial resources of the parties, and the standard of living established during the marriage. Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County July 31, 2002).

Where wife was awarded spousal support in the monthly sum of $1200.00 for a duration of 24 months, the court considered: (1) both parties made approximately equivalent monetary and non-monetary contributions, both to the well-being of the family and to the acquisition and care of marital assets; (2) the nature of the distribution under § 20-107.3 ; (3) the present financial resources of the parties; (4) the relatively modest standard of living during the marriage; and (5) the relatively short duration of the marriage. Crawford v. Crawford, 2003 Va. Cir. LEXIS 253 (Fairfax County Nov. 24, 2003).

The court decided that 73-year-old husband did not have to keep working or have income attributed to him as though he was working to determine the amount of spousal support to the wife, because: (1) he was 73; (2) the marriage lasted 9 years and had no children; (3) he was retired when they married; (4) except for a phone card business the income from which was already taken into account, he was presently not working; and (5) she was gainfully employed. Kinsley v. Kinsley, 2005 Va. Cir. LEXIS 50 (Richmond June 8, 2005).

Court granted a wife spousal support in the amount of $1,000 per month for a period of four years because the wife’s total gross income was a little less than $2,000 per month while the husband earned $5,258 per month; pursuant to subsection D of § 20-107.1 , the wife was granted a reservation to receive spousal support in the future for a period of eight years after the date of the last payment. Capco v. Capco, 2005 Va. Cir. LEXIS 263 (Loudoun County Dec. 5, 2005).

In a divorce action, the court denied the husband’s request for spousal support even though the husband was permanently disabled and the wife earned over $50,000 per year, because the husband had plenty of money to travel to Ghana at least twice a year. Bentsi-Enchill v. Bentsi-Enchill, 2006 Va. Cir. LEXIS 37 (Fairfax County Jan. 12, 2006).

Husband was ordered to pay spousal support and additional sums to assist the wife in her job search and/or necessary job related education because considering all of the evidence and each of the factors contained in §§ 20-107.1 and 20-108.1 , the inescapable conclusion was that the wife was voluntarily unemployed, and using the skills she currently possessed, the wife should be able to earn an income of $15,500 per year in a clerical or office type job and with limited job training or education she should be able to increase her earning capabilities and earn the income of a public school teacher. Phillips v. Phillips, 2006 Va. Cir. LEXIS 7 (Roanoke County Feb. 8, 2006).

Husband was to receive spousal support from his wife; although the parties were generally supportive of each other’s endeavors during the marriage, the husband experienced several medical challenges making it difficult to work, having been diagnosed with heart failure. Although he had applied for disability, he was facing a lengthy process for consideration of his social security disability claim. Duncan v. Duncan, 2006 Va. Cir. LEXIS 74 (Portsmouth June 14, 2006).

Taking into consideration the factors at § 20-107.1 , a divorce court awarded spousal support of $2,800 per month to the wife. Of significance was that the husband had an income of $164,000 per year and the wife was a graduate student earning $3,600 per year. Brochu v. Brochu, 2006 Va. Cir. LEXIS 223 (Loudoun County Dec. 21, 2006).

No spousal support was awarded under circumstances in which both parties contributed to the marriage, both monetarily and non-monetarily during its 23 years, neither party suffered from any mental, physical, or age related conditions that prohibited them from working full time, both parties had the skills, education, and training to be employed in a manner that afforded each of them the ability and opportunity to maintain the same or comparable standard of living enjoyed throughout the marriage, and both parties were currently employed consistent with those levels of skill, education, and training. Sherman v. Sherman, 2007 Va. Cir. LEXIS 4 (Fairfax County Jan. 11, 2007), aff'd in part and rev'd in part, No. 0853-07-4, 2008 Va. App. LEXIS 108 (Va. Ct. App. Mar. 4, 2008).

In divorce proceedings, neither party was entitled to spousal support under § 20-107.1 as, based on an analysis of those factors, it was found that: (1) each party had significant assets; (2) the parties’ children were emancipated and in good health; and (3) both parties were employed. Each party was awarded a reservation to seek spousal support from the other in the future. Kierce v. Kierce, 2007 Va. Cir. LEXIS 164 (Fairfax County Aug. 23, 2007).

In granting a mother spousal support, the court considered the factors set forth in subsection E of § 20-107.1 and concluded that monthly spousal support in the amount of $1797 was proper as the mother suffered from a physical condition that precluded her from working, the father made $100,500 a year and was not financially precluded from making monthly spousal support payments, and the father was the primary financial provider during the marriage while the mother was the primary caregiver to the parties’ children. Porzel v. Porzel, 2007 Va. Cir. LEXIS 201 (Fairfax County Sept. 25, 2007).

Wife was ordered to pay to her former husband monthly spousal support in the amount of $250 as the record showed that the husband, who suffered from multiple sclerosis, was unable to work and had no means to generate regular income while the wife enjoyed reasonably good health and remained gainfully employed with a job that generated a reasonable amount of her income. Pierce v. Carter, 2011 Va. Cir. LEXIS 200 (Greene County Jan. 20, 2011).

In the parties’ action for divorce, an award of spousal support to the wife for 12 years was appropriate under subsection E of § 20-107.1 because the wife was unemployed and had been out of the job market for 10 years and the husband failed to present sufficient evidence regarding the wife’s earning potential. The circuit court also considered the standard of living establishing during the marriage and the wife’s reasonable expenses. Johnson v. Johnson, 2011 Va. Cir. LEXIS 32 (Fairfax County Feb. 7, 2011).

Former husband’s motion to terminate spousal support was denied because although his loss of employment was involuntary and was a material change in circumstances, there was the ability to pay support from sources other than income from employment; relevant factors were the financial resources of the parties and their earning capacity, and the husband had more of both. Childress v. Childress, 88 Va. Cir. 403, 2014 Va. Cir. LEXIS 51 (Henrico County July 3, 2014).

In this equitable distribution case, the statutory factors outlined in the statute were considered and the parties had 60 days from the entry of the order to satisfy the determined distribution scheme. Eskridge v. Eskridge, 2014 Va. Cir. LEXIS 155 (Richmond Dec. 16, 2014), aff'd, No. 2321-14-2, 2015 Va. App. LEXIS 221 (Va. Ct. App. July 21, 2015).

There was no provision for health insurance, as the spousal support award was of sufficient amount for the wife to purchase such, and the court accepted the trial evidence that she preferred alternative health services that were not covered by traditional health insurance and weighed her health care spending in its spousal support award. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Needs, resources and equities of parents must be considered. —

Court considered the statutory factors in § 20-107.1 , the fact that the wife had physical custody of the parties’ three children, that her income was below the federal poverty level, and that the husband had considerably more earning power in deciding to award the wife four years of spousal support at $1,000 per month. Heiche v. Heiche, 2004 Va. Cir. LEXIS 221 (Fairfax County July 21, 2004).

Including needs of wife and ability of husband to pay. —

Wife was awarded permanent spousal support because evidence of the husband’s comfortable lifestyle, his extensive financial dealings, and his spending practices demonstrated that he had ample ability to pay spousal support. Davis v. Davis, 2008 Va. Cir. LEXIS 50 (Madison County Apr. 21, 2008), aff'd, No. 1241-09-2, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

Husband was ordered to pay $500 in monthly spousal support as a consideration of the factors in subsection E of § 20-107.1 , as amended, revealed that the wife had a need for spousal support, that she earned $20,000 a year less than the husband did, and that the husband had the ability to pay support. Ellis v. Ellis, 2012 Va. Cir. LEXIS 1 (Salem Jan. 20, 2012).

Wife was awarded indefinite durational spousal support because, inter alia, the wife was unable to engage in meaningful employment, her earning capacity was not likely to improve, and her disability and health-related needs would continue to increase, and her condition was not expected to get better, and the husband wanted the divorce and had a significantly greater income and earning ability. Ricciardi v. Ricciardi, 2015 Va. Cir. LEXIS 177 (Charlottesville Dec. 3, 2015).

Former husband’s retirement was not a material change in circumstances meriting modification of spousal support because the husband knew or should have known when the final decree was entered that the husband would be required to retire either because of the fault-based divorce or the employer’s mandatory retirement age. Assuming a material change in circumstances, the financial needs of the wife who was struggling financially, while the husband who obtained a job, could still pay the amount of spousal support ordered, merited consideration. Jones v. Jones, 2019 Va. Cir. LEXIS 612 (Orange County Oct. 24, 2019).

Need for spousal support not shown. —

After considering the factors set forth in subsection E of § 20-107.1 , spousal support was denied to both parties where the wife offered no evidence of her inability to work full time or the need for spousal support. Holmes v. Holmes, 2016 Va. Cir. LEXIS 184 (Chesapeake Oct. 18, 2016), modified, No. CL16-608, 2016 Va. Cir. LEXIS 187 (Chesapeake Nov. 22, 2016).

Determination of income. —

In considering the relative needs and abilities of the parties for purposes of spousal support, the trial court refused to reduce the husband’s income by the amount of a tax levy against the husband; as a result, the wife was awarded spousal support, as the husband earned more than the wife, and the wife’s expenses were greater. Alexander v. Alexander, 2006 Va. Cir. LEXIS 100 (Portsmouth July 31, 2006).

Where the court calculated the ex-husband’s net monthly income to be $5,896, and the ex-wife’s monthly gross salary was $4,173, the ex-wife was entitled to prospective spousal support in the amount of $750 per month under § 20-107.1 .Vitus v. Dega, 2008 Va. Cir. LEXIS 45 (Fairfax County Apr. 17, 2008), aff'd, No. 1831-08-4, No. 1800-08-4, 2009 Va. App. LEXIS 286 (Va. Ct. App. June 23, 2009).

Wife was awarded alimony of $2,500 per month for eight years because she had stayed at home with the children during the parties’ 12-year marriage; her net monthly income was $849; the husband’s gross monthly income was $9,040; and he had left her and his four children to pursue a relationship with a different woman. Milot v. Milot, 2013 Va. Cir. LEXIS 60 (Norfolk County July 18, 2013).

Husband was to pay spousal support for an indefinite duration based on the tax returns from a business indicating that it had a significant amount of earning potential and he had woefully under reported it. Glascock v. Glascock, 2020 Va. Cir. LEXIS 144 (Culpeper County Aug. 26, 2020).

Husband was ordered to pay spousal support where although he was involuntarily unemployed, he should not be unemployed for the immediate future. Further, he had not exhausted all job opportunities in his field, nor had he made any effort to find any other type of alternative employment during the interim period. Dasher v. Nahidian, 2021 Va. Cir. LEXIS 11 (Culpeper County Jan. 20, 2021), modified, No. CL-19-893, 2021 Va. Cir. LEXIS 58 (Culpeper County Mar. 31, 2021).

Voluntary underemployment. —

Husband was voluntarily underemployed where he retired at 55 and worked part-time at a store rather than pursuing the more lucrative employment he commenced with the District of Columbia immediately following his retirement; income could be imputed to the husband, and he was not entitled to spousal maintenance and support under § 20-107.1 .Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County July 31, 2002).

Commissioner erred in concluding that a wife was voluntarily underemployed because the husband indicated during the hearing that he was not trying to impute income to the wife, and there was an absence of information as to what type of employment the wife was otherwise qualified for. The court concluded that the wife’s current employment was appropriate given the special care that her son required and the wife’s need to be flexible and available to care for her son on a regular basis and, after considering the factors listed in subsection E of § 20-107.1 , found that the wife should be awarded $600 per month in spousal support rather than the $250 per month the commissioner originally recommended. Driskill v. Driskill, 2003 Va. Cir. LEXIS 380 (Norfolk May 29, 2003), amended, No. 98-262, 2003 Va. Cir. LEXIS 381 (Norfolk June 16, 2003), aff'd, No. 2625-03-1, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

Where divorce based on living separate and apart for one year was granted, the wife was not awarded spousal support despite the fact that the husband earned almost twice that of the wife because the wife was sufficiently employed to maintain the standard of living established during the marriage; the fact the husband earned almost twice the wife was not relevant as the wife was only employed part-time and had the means to work full-time. Karim v. Karim Equitable Distrib., 2006 Va. Cir. LEXIS 216 (Fairfax County Oct. 3, 2006).

Husband was not voluntarily underemployed in light of evidence that he operated his own medical practice only because his former medical group refused to accept the husband as an employee cardiologist. The wife, a nurse, was voluntarily unemployed as she was licensed but was not working. Chapman v. Chapman, 2007 Va. Cir. LEXIS 9 (Roanoke County Feb. 16, 2007).

Former husband’s motion to modify spousal support due to a material change of circumstances was denied because the husband, who was underemployed and could possess a higher earning job, had the earning ability to make his spousal support payments; the husband voluntarily left his job and had to bear the risks inherent with that decision, and he admitted that his former employer would have paid him his full salary. Simonich v. Simonich, 2008 Va. Cir. LEXIS 99 (Fairfax County Sept. 3, 2008).

Voluntary unemployment not found. —

After a marriage of more than 20 years, a husband was obligated to pay spousal support to the wife, who was not voluntarily unemployed under § 20-107.1 . She suffered two incidents of breast cancer, her choice to seek healing through faith rather than through conventional medical treatment was not a refusal of treatment that affected the decision as to whether she was voluntarily unemployed, she was rated as disabled by the Social Security Administration, and her termination from a government job was unrelated to health. Moton v. Moton, 2008 Va. Cir. LEXIS 68 (Fairfax County July 2, 2008).

Evidence sufficient to impute income. —

Wife’s income was imputed in the amount of $80,000 per year beginning 90 days from the date of the final divorce decree, as her earning ability as a dental office manager, according to the husband’s expert, was $80,000 to $90,000 per year, and her earning ability as a dental hygienist was $75,000 to $80,000. The wife had demonstrated an ability to manage very complex dental practices and maximize their income. Rekow v. Rekow, 2008 Va. Cir. LEXIS 141 (Rappahannock County Aug. 15, 2008), aff'd in part, No. 2588-08-4, 2009 Va. App. LEXIS 180 (Va. Ct. App. Apr. 21, 2009).

Support for disabled and retired spouse. —

Since 22-year marriage ended with the wife, age 72, on full disability for reflex sympathetic dystrophy with $496 monthly social security, and the husband, age 57, working as a registered nurse earning $6,184 monthly, she was awarded $1,500 monthly spousal support of indefinite duration. Paris v. Paris, 2005 Va. Cir. LEXIS 63 (Roanoke June 14, 2005).

Effect of adultery. —

Wife was awarded periodic spousal support based on the duration of the marriage, the financial circumstances of the husband, the needs of the wife, and the income of the wife; the wife’s romantic and sexual relationship with another man that began after the separation of the parties did not preclude her from receiving spousal support under the manifest injustice exception as the husband had had numerous adulterous relationships since the separation of the parties and his economic circumstances were significantly better than the circumstances of the wife. Smith v. Smith, 2005 Va. Cir. LEXIS 271 (Nelson County Dec. 20, 2005).

After a divorce was granted based on the husband’s adultery, and his refusal to testify as to the same could not be used against him, he was denied spousal support, pursuant to subsection B of § 20-107.1 ; he was ordered to pay the wife a monetary award under § 20-107.3 , in light of the disparity in the value of the assets; and, the parties’ property was equitably divided. Toth v. Toth, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

Wife’s adultery barred her from receiving spousal support. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

Adultery not a bar to pendente lite support. —

Wife was not barred from receiving pendente lite spousal support even though wife was sleeping with another man while she was still married to husband, as adultery under § 20-107.1 was not a bar to pendente lite spousal support; indeed, it was only a bar to a support award where the award was made pursuant to the dissolution of a marriage. Ciccarelli v. Ciccarelli, 60 Va. Cir. 161, 2002 Va. Cir. LEXIS 134 (Loudoun County Aug. 29, 2002).

Proof of adultery. —

Husband failed to show that an adultery ground of divorce existed in his favor as required by subsection B of § 20-107.1 where no evidence of adultery was presented other than that the wife was living at a reduced rent in the home of another man that she knew and talked to extensively during the marriage; the evidence of adultery was not clear and convincing and was not corroborated. Schoofs v. Schoofs, 2005 Va. Cir. LEXIS 82 (Loudoun County July 1, 2005).

Income not imputed to wife as she required significant refresher training. —

Wife was awarded $3,000 per month in spousal support and income was not imputed to her because she required 10 months of refresher training to be employable as a nurse; the wife did not work during the marriage, her initial training was 30 years earlier, her employment record did not involve a high level of professional skills, and, while she maintained her license by paying the annual licensing fee, that did not maintain her nursing skills. Goldman v. Goldman, 2003 Va. Cir. LEXIS 252 (Fairfax County Dec. 29, 2003).

Lump sum awarded. —

Subsection E governs the award of spousal support upon the entry of a divorce decree, and many of the factors that courts must consider when awarding spousal support closely parallel the factors that courts consider with regard to the equitable distribution of the marital property pursuant to subsection E of § 20-107.3 ; the court granted $3,000 in lump sum spousal support to a wife after finding that the parties’ marriage was relatively brief, that the parties had lived beyond their means during the marriage, that both parties could work, that the husband had a superior earning capacity, and that the spousal support would facilitate’s the wife’s transition to a cosmetology career. Nichols v. Nichols, 2002 Va. Cir. LEXIS 455 (Westmoreland County Aug. 12, 2002).

Based on the factors contained in subsection E, and principally because the marriage had lasted less than four years, the court awarded a lump sum monetary award of spousal support of $4,000. Abraham v. Bereketab, 2004 Va. Cir. LEXIS 64 (Fairfax County Mar. 31, 2004).

Husband was ordered to pay lump sum spousal support to a wife in the amount of $4,968.66 as the husband’s $15,000.00 remaining buy-out proceeds constituted income and were a financial resource and a property interest of the husband from which spousal support could be ordered under §§ 20-107.1 and 20-109 ; since both parties were now disabled, after the transfer, the husband’s support obligation terminated until a change in circumstances. Ashworth v. Ashworth, 74 Va. Cir. 286, 2007 Va. Cir. LEXIS 276 (Salem Oct. 25, 2007).

Lump-sum spousal support award in favor of a wife was appropriate because the award was sufficient for the wife to supplement her income and to obtain the minimal upgrading of her skills necessary to increase her earning power to a reasonable level. Harkness v. Harkness, 2008 Va. Cir. LEXIS 6 (Salem Mar. 21, 2008).

Duration of support. —

Wife’s right to receive spousal support was reserved for a period of time equal to 50 percent of the time between the date of the parties’ marriage and the date of their separation, because, under subsection D of § 20-107.1 , the rebuttable presumption reserving support for this period was not rebutted. Matyseck v. Matyseck, 2003 Va. Cir. LEXIS 62 (Fauquier County Apr. 22, 2003).

Pursuant to § 20-107.1 , there is a rebuttable presumption that the length of the complainant’s reservation of spousal support should be one-half the length of the parties’ marriage; a husband did not rebut the statutory presumption and spousal support was granted to the wife for three years and 11 months, one-half of the length of the parties’ marriage. Olympia v. Olympia, 2003 Va. Cir. LEXIS 75 (Fairfax County Apr. 22, 2003).

Court determined that spousal support for a period of three years after their separation, which was more than one-third of their time together, was enough for their nine-year marriage. Kinsley v. Kinsley, 2005 Va. Cir. LEXIS 50 (Richmond June 8, 2005).

Wife was entitled to an award of permanent spousal support even though she admitted that she committed adultery; under the circumstances, it would be a manifest injustice not to award her permanent spousal support, especially since the husband conceded she was completely disabled and could not work, and the husband had the ability to pay it. Henke v. Henke, 2005 Va. Cir. LEXIS 78 (Loudoun County June 30, 2005).

In a case in which, pursuant to a consent decree, spousal support had terminated, the wife unsuccessfully argued that subsection C of § 20-109 only applied to permanent spousal support, and, at the very least, she should be entitled to an initial award of spousal support during the pendency of the divorce case, in accordance with § 20-107.1 , her contention that the provisions of § 20-109 only applied to a permanent award and not to a pendente lite or temporary award of spousal support was based upon a misapplication of the language contained in the Wright decision. The language in that case was fact specific, and the court was not discussing the binding effect of a contract or consent decree as set forth in the mandatory language of subsection C of § 20-109 . Paul v. Paul, 77 Va. Cir. 124, 2008 Va. Cir. LEXIS 250 (Salem Sept. 19, 2008).

Award of undefined duration. —

Permanent spousal support for an undefined duration was indicated rather than spousal support of a defined duration, as the court was uncertain of the wife’s employment situation after she obtained her master’s degree in education and a teacher certification. The husband had the burden to offer admissible evidence of such, but he did not. Bruley v. Bruley, 2005 Va. Cir. LEXIS 111 (Loudoun County Sept. 2, 2005).

Award in error when party created financial situation. —

Permanent spousal support award to a wife was not indicated, considering, under subsection E of § 20-107.1 , the husband’s ability to pay, the wife’s needs, and the manner in which the wife’s needs were created, because the wife voluntarily created her financial situation, as she voluntarily undertook the debt and expenses associated with a new home, and paid part of the expenses for one adult daughter’s horses, as well as the repair expenses for both adult daughters’ automobiles. Matyseck v. Matyseck, 2003 Va. Cir. LEXIS 62 (Fauquier County Apr. 22, 2003).

Qualified retirement plans. —

Under a prenuptial agreement, 64-year-old husband named 53-year-old wife beneficiary of his 401(k) retirement plan and did not breach the agreement when he, with her consent (as per their financial agent), took retirement distributions for their benefit until the plan was depleted 10 years later since, inter alia, plan was not, or not converted to, life insurance policy by naming her death beneficiary under the agreement, distributions could start at his age 59.5 and had to start at his age 70.5, and he was retired when they were married. Kinsley v. Kinsley, 2005 Va. Cir. LEXIS 50 (Richmond June 8, 2005).

Determining amount of award. —

Reviewing court deferred to commissioner’s statement that defendant wife’s effective abandonment of the marriage did not deprive her of being awarded spousal support in overruling the parties’ exceptions to the commissioner’s report; furthermore the court deferred to commissioner’s calculation of support even though he used a different method than that agreed on by the parties. Hoy v. Hoy, 2004 Va. Cir. LEXIS 42 (Norfolk Mar. 25, 2004).

The court stated that while it had no business telling people how to spend their money, it had an obligation not to award support that will only be used to continue inappropriate spending habits (incurring debt) and factored into the support amount and its duration the wife’s reasonable obligations and debt repayment. Kinsley v. Kinsley, 2005 Va. Cir. LEXIS 50 (Richmond June 8, 2005).

Reservation of right. —

The court decided the husband’s right to receive support upon a change of circumstances, as unlikely as that appeared at present, was to be reserved about 4 years, roughly 50 percent of the length of time between the date of marriage and the date of separation. Kinsley v. Kinsley, 2005 Va. Cir. LEXIS 50 (Richmond June 8, 2005).

Spousal support conferred in exercise of a “reservation” is not an “increase” of spousal support, but rather imposition of a new term of support; it makes no difference whether support was originally awarded to be followed by a reservation, or whether support is merely reserved for future consideration. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

“Reservations” are not subject to the requirement of a “material change in circumstances” extant for “modifications” of support; at the time a period of reservation is granted, the court does not reach the merits of a monetary award, which instead are considered later during the exercise of such reservation. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

More specific words of subsection D of § 20-107.1 control the general in § 20-109 ; to require reservations of spousal support to be treated as subject to the prerequisite of a finding of a material change in circumstances thwarts the legislative intent that, once a reservation is granted, it be considered on the merits upon a future petition to do so. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

By the language of the property settlement agreement, a husband and a wife contracted the period of spousal support exercised under the reservation could not exceed five years in duration because the support was stated in declining amounts; the parties contracted the wife would have support for one hundred and eight months, i.e., nine years, decreasing in two step down periods with the potential of a supplementary support period exercised during the window provided by the reservation. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

Wife need not show a material change in circumstances to have her prayer for spousal support considered under the bargained-for reservation in the parties’ property settlement agreement because she was not raising a modification of existing support but rather was bringing forth consideration of the authority which the court held back or reserved for consideration to another day to award additional support in derivation of the proceedings enacting the original final decree. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

Spousal support ordered. —

Husband was ordered to pay spousal support to the wife for 48 months under subsection E of § 20-107.1 where: (1) the parties were married for 12 years; (2) the parties had two children, one of whom suffered from hyptonia, and the other suffered from emotional problems arising from the dissolution of the parties’ marriage; (3) the husband made most of the monetary contributions to the marriage, while the wife made most of the non-monetary contributions; (4) the wife had a science degree, but the husband did not provide sufficient testimony to quantify the wife’s earning capacity, and the trial court was required to impute income to her based on a minimum wage; and (5) the husband had a high-paying job. Bonin v. Bonin, 2003 Va. Cir. LEXIS 181 (Fairfax County July 30, 2003).

Where the parties had been married 22 years and the wife, 49, had a masters degree, but was an alcoholic who had not worked in 1 1/2 years, while the husband, 51, was a successful attorney, the court awarded the wife periodic support of $5,500 per month. Hoegle v. Hoegle, 2004 Va. Cir. LEXIS 17 (Fairfax County Feb. 9, 2004).

After considering the statutory factors in § 20-107.1 , and after finding that the wife was accustomed to a high standard of living and was just starting to establish herself in the work force as a real estate agent, the court awarded the wife permanent spousal support. Whealen v. Whealen, 2004 Va. Cir. LEXIS 219 (Fairfax County Aug. 12, 2004).

Wife was awarded post-decree spousal support where the parties were married for 13 years, with long absences and brief periods together, the husband earned over twice as much as the wife, the wife’s expenses exceeded her income, and the husband had been ordered to pay child support. Bullock v. Bullock, 2004 Va. Cir. LEXIS 299 (Richmond Aug. 23, 2004).

Wife was awarded spousal maintenance of $1200 a month based on evidence that: (1) the parties had been married 9 years and enjoyed a moderate standard of living; (2) the 36-year-old husband earned $64,000 a year before he quit his job to start a business at which he earned $54,800 per year, and he was deemed voluntarily unemployed; and (3) the 37-year-old wife earned $26,000 per year. Hart v. Hart, 2004 Va. Cir. LEXIS 239 (Fairfax County Aug. 31, 2004).

Since the husband worked as a cardiologist and earned a substantial salary, while the wife was the family’s primary caretaker and helped to raise the children once she quit teaching following the birth of the parties’ first child, there was a need for spousal support by the wife and the ability of the husband to pay considering the parties’ disparity in incomes. Bushkar v. Bushkar, 2005 Va. Cir. LEXIS 70 (Roanoke County June 24, 2005).

Wife was awarded $1,000 per month for three years as spousal support, considering that she was not guilty of any fault that would deny her the right to spousal support, that the husband had a greater earning capacity than the wife, that the wife had a longer period of potential earnings prior to retirement, that both parties had overstated their monthly expenses, and that the wife could probably earn $500 to $1,000 more per month than that she was earning. Joachim v. Joachim, 2005 Va. Cir. LEXIS 278 (Nelson County July 19, 2005).

Because a wife’s inability to get or maintain employment was a direct result of the injuries she received, and from which she continued to suffer, at the hands of the husband, the wife was awarded a divorce and alimony in the amount of $2,000 per month. Lofgren v. Martin, 2005 Va. Cir. LEXIS 206 (Fairfax County Nov. 4, 2005).

Spousal support in amount of $5,500 per month was awarded to a wife since the husband, a commercial airline pilot, earned almost $20,000 per month while the wife was prevented from working due to severe psychiatric conditions, the parties had been married for 19 years, and the husband was not prevented from working by any condition. Kelly v. Kelly, 2006 Va. Cir. LEXIS 10 (Loudoun County Jan. 17, 2006).

In a divorce case between parties married for eight and a half years when they separated, the husband’s spousal support obligation to the wife was fixed at $500 per month under circumstances in which, the wife either earned or was able to earn $27,300 annually, and the husband either earned or was able to earn $45,000 annually. Vest v. Vest, 2007 Va. Cir. LEXIS 85 (Salem June 6, 2007).

Wife was awarded spousal support of $1,000 per month where the court found that any financial hardship by either party was by choice, the parties had a modest standard of living during the marriage, the parties had been married for 22 years, both parties made significant monetary and non-monetary contributions to the well-being of the family, and both parties were employed professionals. Sherman v. Sherman, 2008 Va. Cir. LEXIS 146 (Fairfax County Oct. 7, 2008).

Court considered the factors in subsection E of § 20-107.1 and awarded the wife spousal support of $1500 per month for ten years, noting that the wife had to maintain a household with modest earnings while having limited assets until the marital residence was sold or refinanced. McDonough v. McDonough, 2012 Va. Cir. LEXIS 17 (Fauquier County Jan. 31, 2012).

Wife was awarded $800 in spousal support for three years under § 20-107.1 where: (1) a husband’s gross monthly income was $9550 per month and a wife’s gross monthly income was $5599; (2) the wife contributed to the husband’s military career by receiving and entertaining officers and their family members in the home; (3) the husband personally and financially supported the wife’s college education during the marriage and supported the wife’s daughter from another relationship; and (4) both parties possessed the potential for significant future earning capacity. Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Norfolk County June 13, 2012).

Court awarded the wife monthly periodic spousal support in the amount of $66,030, which amount was the wife’s reasonable needs for her to maintain her station in life, considering the husband could afford to pay that amount; the court did not contemplate the husband’s retirement, as he was still working at age 77 and there was no evidence he intended to stop. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Husband was ordered to pay the wife monthly spousal support for seven years from the date of separation because the husband was a medical doctor with a successful practice, the wife was a certified registered nurse anesthetist who was underemployed so that the wife was able to care for the parties’ child, the parties enjoyed an extravagant standard of living throughout the marriage, the parties were married prior to separation at approximately thirteen and a half years, and both parties were fairly young and in good physical and mental health. Hester v. Hester, 2022 Va. Cir. LEXIS 14 (Norfolk Mar. 4, 2022).

Spousal support denied. —

Considering the relevant factors, the trial court found that neither spouse was entitled to an award of spousal support, as the husband showed little interest in obtaining employment and neither the husband nor the wife was in a position to pay support to the other person. Clouser v. Clouser, 2006 Va. Cir. LEXIS 178 (Fairfax County Sept. 8, 2006).

Because of a change in the distribution of the marital property, and despite a finding that the vast majority of the assets remained as previously distributed, absent a material change in circumstances, a wife’s prayer for spousal support was denied. Thomas v. Wiese, 2006 Va. Cir. LEXIS 176 (Fairfax County Sept. 28, 2006).

Although the trial court found that the wife did not properly reserve her right to pursue permanent spousal support, the court considered the factors contained in subsection E of § 20-107.1 and determined that the wife was not entitled to an award because the parties essentially were at parity as they were prior to their marriage and, in fact, due to the distribution of the marital share of the residence to the wife and the division of the husband’s military retirement benefits, the wife was to have an enhanced financial position. Lee v. Lee, 2007 Va. Cir. LEXIS 238 (Newport News Nov. 27, 2007).

Spousal support was denied in a husband’s divorce action against his wife because although the husband had been emotionally abusive to the wife, the trial court believed that it was the husband’s wish to preserve the marital union, but the wife’s infidelity brought the marriage to an end. Ferramosca v. Ferramosca, 2008 Va. Cir. LEXIS 21 (Richmond Mar. 26, 2008).

Wife’s request for spousal support was denied where: (1) on top of her salary as a nurse, the wife had acquired substantial assets; (2) due to the prudent saving and investing of the parties during their marriage, the wife had received assets approaching $5.2 Million and retirement benefits of approximately $900,000 from the marital estate; and (3) both parties would leave the marriage debt-free. Corey v. Dimattina, 2009 Va. Cir. LEXIS 122 (Fairfax County Nov. 16, 2009).

Following the dissolution of a 10.5 year marriage on no-fault grounds under § 20-91 , neither party was entitled to an award of spousal support under § 20-107.1 , given their earning abilities, education, training, and property interests, because both parties had adequate financial resources to meet their needs. Burney v. Burney, 2010 Va. Cir. LEXIS 209 (Hanover County Oct. 5, 2010).

Because the wife committed adultery and the court found that the wife had not satisfied the burden of proof required for manifest injustice, the wife was not entitled to spousal support. Reinier v. Reinier, 2019 Va. Cir. LEXIS 203 (Orange County May 31, 2019).

Court considered the statutory factors in making an equitable distribution of the parties’ property and found that the ex-husband made most of the monetary contributions to the well-being of the family, while the ex-wife made most of the non-monetary contributions by working as a stay-at-home caretaker for the house and the parties’ children, and that the wife received a personal injury settlement and monthly money from her father, and would receive equity from the marital home and a portion of the husband’s retirement; however, the court declined to award spousal support to either party based on the manifest injustice exception as both the husband and the wife committed adultery. Lewis v. Lewis, 2019 Va. Cir. LEXIS 357 (Orange County Aug. 24, 2019).

Circuit court declined to award spousal support to either a husband or a wife because both parties make in excess of $100,000 year in successful careers, and both parties equally contributed to the well-being of the family in monetary and non-monetary fashions. Windsor v. Windsor, 2019 Va. Cir. LEXIS 439 (Madison County Sept. 6, 2019).

Trial court did not award a husband spousal support because the wife contributed the marital funds that resulted in marital property, the husband exacerbated the parties’ marital debts with unilateral spending and delinquent tax filings that the wife satisfied using marital assets post-separation, both parties were working full time, the husband was not pursuing education, the husband mentally tormented the wife throughout the marriage, and the court found that the husband forcibly sodomized the wife despite clear and repeated protest. Barth v. Kristin P. Barth Opinion Letter, 2021 Va. Cir. LEXIS 123 (Newport News Apr. 15, 2021).

Modification of spousal support. —

Trial court was not required to consider the § 20-107.1 factors when considering whether the former husband’s petition for modification of spousal support should be granted; rather, the trial court was allowed to modify the amount of spousal support as the circumstances made proper, and a downward modification was warranted since the former husband had essentially retired when his business was acquired by another business, his retirement was at the normal age of 60-years-old, and he was living off of his investments, retirement savings, social security, and other forms of passive income. Poland v. Poland, 2005 Va. Cir. LEXIS 110 (Loudoun County Aug. 19, 2005).

Though a court reduced an ex-husband’s spousal support obligation by an amount representing the ex-wife’s net monthly balance based on her current rate of income and alimony and amount that the ex-wife spent on her adult children each month, it refused to reduce the ex-husband’s spousal support obligation by the amount which the ex-wife paid toward credit card debt each month and by the amount that the ex-husband contended that the ex-wife could save each month by adjusting the amount she withheld from her taxes. Perry v. Perry, 2007 Va. Cir. LEXIS 189 (Fairfax County Nov. 20, 2007).

Ex-wife’s new income resulting from her employment and her $700,000 inheritance created a material change in circumstances warranting a reduction in her ex-husband’s spousal support obligation. The court considered the factors in subsection E of § 20-107.1 and reduced the spousal support by $1,566.33, representing the ex-wife’s $833 net monthly balance based on her current rate of income and alimony and the $733.33 that the ex-wife spent on her adult children each month. Perry v. Perry, 2007 Va. Cir. LEXIS 189 (Fairfax County Nov. 20, 2007).

Spousal support was modified because a husband had experienced a material change in circumstances warranting a redetermination of his support obligation, considering all of the relevant factors set out in subsection E, where the husband’s income had significantly declined as a result of the collapse of high-end real estate market. Hardy v. Hardy, 2010 Va. Cir. LEXIS 44 (Charlottesville May 13, 2010).

Material change of circumstances found. —

Wife was entitled to have her request for supplementary support under a reservation considered because she proved an unforeseen material change in circumstances justifying the exercise of her reservation; the inordinate degree of the husband’s financial success post-divorce was never in the parties’ contemplation at the time they entered into their property settlement agreement, and the wife’s inability to secure employment was another material change in circumstances not envisioned. Jurczuk v. Sessions, 102 Va. Cir. 206, 2019 Va. Cir. LEXIS 208 (Fairfax County June 6, 2019).

A material change in a former husband’s circumstances warranting a reduction in the husband’s monthly support obligation for an undefined period of duration was found because the husband had experienced a substantial reduction in the husband’s income. The reduction was not made in contemplation of the parties’ impending retirement because that would have required speculation as to when the husband actually was to retire and as to the parties’ needs and resources at the time of retirement for both of the parties. Wichin v. Wichin, 2020 Va. Cir. LEXIS 153 (Fairfax County July 21, 2020).

No material change of circumstances found. —

After considering the factors, the court was not persuaded that there had been a material change of circumstances that warranted reducing or terminating the spousal support as the ex-husband’s evidence was less than compelling, his assets had substantially increased, and the ex-wife had continuing needs and expenses. Farah v. Farah, 2006 Va. Cir. LEXIS 35 (Fairfax County Jan. 12, 2006).

Husband failed to carry the burden of proof necessary to terminate or decrease the husband’s spousal support obligation, in light of the evidence and the factors contained in subsection E of § 20-107.1 ; a 23% increase in the wife’s income over six years was not a material change in circumstances, and the wife was 68 and had suffered a debilitating illness. Bradley v. Bradley, 2012 Va. Cir. LEXIS 82 (Salem Nov. 26, 2012).

Trial court did not abuse discretion. —

Husband was ordered to pay spousal support of $2,500.00 per month to the wife because the husband’s annual income was $231,794 and the wife’s was $45,005, the wife had inflated her budget, had increased her standard of living since divorce, and her testimony regarding her expenses and needs was not credible. Deforest v. Deforest, 2007 Va. Cir. LEXIS 184 (Salem Nov. 27, 2007).

Judicial estoppel. —

Trial court’s award of indefinite spousal support was not precluded by judicial estoppel because entitlement to spousal support was a mixed question of law and fact. Moreover, the court did not, at any point in the litigation prior to its final ruling, accept or rely on either party’s position regarding spousal support and there was not any detriment or unfair advantage to the husband as the husband’s counsel cross-examined the wife extensively regarding the wife’s income, expenses, and need for support. Renner v. Renner, 2016 Va. Cir. LEXIS 188 (Chesapeake Oct. 5, 2016).

§ 20-107.1:1. Court may decree as to maintenance of life insurance policy.

Upon entry of a decree providing for (i) the dissolution of a marriage, (ii) a divorce, whether from the bond of matrimony or from bed and board, or (iii) separate maintenance, where an order for spousal support or separate maintenance has been entered by the court, the court may order a party to (a) maintain any existing life insurance policy on the insured party’s life that was purchased during the marriage, is issued through the insured’s employment, or is within effective control of the insured, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary of such policy during the marriage and the payee is a party with an insurable interest pursuant to subsection B of § 38.2-301 ; (b) designate the other party as beneficiary of all or a portion of the death benefit of such life insurance for so long as the insured party so ordered has an obligation to pay spousal support to the other party, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary of such policy during the marriage and the payee is a party with an insurable interest pursuant to subsection B of § 38.2-301 in accordance with the terms of the policy; (c) allocate the premium cost of such life insurance between the parties, provided that all premiums shall be billed to the policyholder; and (d) order the insured party to execute all appropriate forms or written consents to require the insurer to provide information to the party beneficiary as to the good standing of the policy and the maintenance of that party as beneficiary to the extent required by the order entered pursuant to this section. Any obligation or requirement under such an order shall cease upon the termination of the party’s obligation to pay spousal support or separate maintenance.
In making a determination under subsection A, the court shall consider:
1. The age, health, and insurability of the insured party;
2. The age and health of the payee spouse;
3. The cost of the life insurance policy;
4. The amount and term of the award of spousal support or separate maintenance;
5. The prevailing insurance rates at the time of the order;
6. The ability of either spouse to pay the premium cost of the life insurance; and
7. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair order.
Upon motion of either party, any order entered pursuant to this section may be modified upon a material change of circumstances, including a change in marital status of the payor spouse, and in consideration of the factors set forth in subsection B. This provision shall not permit the change in marital status of the payor spouse to be considered as a factor under § 20-107.1 or considered a material change in circumstances in any proceeding related to the modification of spousal support.
Nothing in this section shall be construed to create an independent cause of action on the part of any beneficiary against the insurer or to require an insurer to provide information relating to such policy to any person other than the policyholder without the written consent of the policyholder or unless ordered by the court.
Nothing in this section shall be construed to require an insurance company to renew or reinstate any insurance policy other than as provided in such insurance policy.
In the event a group policy issued by an employer that is subject to a court order pursuant to this section is terminated or canceled by the employer or there is an involuntary change in employment by the payor causing the policy to no longer be in effect, such circumstances shall not be the basis of any finding of contempt against the payor arising out of an order entered pursuant to this section.
This section shall not apply to any second to die insurance policies on the lives of the payor and payee.
In the case of a term life insurance policy that has the ability to convert to a permanent policy, the court shall not impose an obligation to pay for such a conversion.

History. 2017, c. 797.

CASE NOTES

Construction. —

Trial court is authorized to order that a divorcing spouse designate the former spouse as a beneficiary on a life insurance policy if two conditions are met: first, the policy must already be in existence, and the trial court may order that the payee spouse be designated the beneficiary only if the payee has been designated as a beneficiary of such policy during the marriage. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

Compliance. —

Husband had in place during the marriage a life insurance policy with wife as the named beneficiary that was sufficient to cover his support obligations to both wife and the children; the trial court’s order only required husband to maintain that existing policy and allowed him to adjust the beneficiaries and the respective share of the benefits consistent with the statutory scheme, and no error was found. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Trial court requirements. —

There is no requirement that a trial court must state that it considered the subsection B of § 20-107.1:1 factors or explain the weight it gave those factors in crafting its order; furthermore, a full review of the record and the trial court’s specific directions regarding the policy showed the trial court sufficiently considered the factors. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Trial court's authority. —

Whatever benefit wife gained from the technicality of the trust being named the beneficiary of the policy, it placed the policy outside of the scope of subsection A of § 20-107.1:1 and thus, the trial court was without authority to order husband to name her as a beneficiary on the life insurance policy going forward. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

§ 20-107.2. Court may decree as to custody and support of children.

Upon entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the (a) custody or visitation and support of the minor children of the parties as provided in Chapter 6.1 (§ 20-124.1 et seq.) or (b) support of a child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2 , including an order that either party or both parties provide health care coverage or cash medical support, or both.

History. 1982, c. 309; 1984, c. 651; 1986, c. 421; 1987, c. 597; 1988, cc. 794, 887; 1989, c. 740; 1991, cc. 60, 545, 588; 1992, cc. 585, 716, 742; 1993, cc. 573, 599, 633; 1994, cc. 719, 769; 1996, c. 331; 2009, c. 713; 2015, cc. 653, 654.

Cross references.

For current provisions relating to factors to be considered in determining the amount of child support, see § 20-108.1 .

As to guidelines for determination of child support, and schedule of monthly basic child support obligation, see § 20-108.2 .

As to testimony of child by use of two-way closed circuit television in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1521 . As to admission of out-of-court statements made by certain children in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1522 . As to use of videotaped statements of certain children who are complaining witnesses in in civil proceedings involving alleged abuse or neglect of a child, see § 63.2-1523 .

The 2009 amendments.

The 2009 amendment by c. 713 inserted “or both parties” and “or cash medical support, or both” near the end.

The 2015 amendments.

The 2015 amendments by cc. 653 and 654 are identical, and inserted the subdivision (a) and (b) designations and substituted “or (b) support of a child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2 ” for “of Title 20.”

Law Review.

For comment on the liability of the estate of a deceased husband for support of children under divorce decree, see 10 Wash. & Lee L. Rev. 226 (1953).

For note on the right of surviving divorced parent to custody of children, see 19 Wash. & Lee L. Rev. 123 (1962).

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

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, “The Enforceability of Arbitration Clauses in Virginia Marital Separation Agreements,” see 19 U. Rich. L. Rev. 333 (1985).

For article, “The Search for Guidance in Determining the Best Interests of the Child at Divorce: Reconciling the Primary Caretaker and Joint Custody Preferences,” see 20 U. Rich. L. Rev. 1 (1985).

For note, “Homosexuality and the Custodial Parent in Virginia — The Effects of Roe v. Roe,” see 8 G.M.U. U.L. Rev. 389 (1986).For article, “The Role of Fault in Virginia Divorce Proceedings,” see 20 U. Rich. L. Rev. 295 (1986).

For note, “Including a Child Support Arrearage in a Chapter 13 Plan,” see 43 Wash. & Lee L. Rev. 477 (1986).

For 1987 survey of Virginia law as to children, see 21 U. Rich. L. Rev. 789 (1987).

As to interpretation of this section in support modification proceeding, see 22 U. Rich. L. Rev. 565 (1988).

For comment on joint custody in Virginia, see 11 G.M.U. L. Rev. 125 (1989).

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

For article, “Virginia’s Equitable Distribution Law: An Owner’s Manual,” see 46 Wash. & Lee L. Rev. 807 (1989).

Research References.

Child Custody and Visitation Law and Practice (Matthew Bender).

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 22 Enforcement of Judgments. § 22.02 Judgment Liens. Friend.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 35, 53, 54, 55, 57, 60.

CASE NOTES

Analysis

I. General Consideration.
II. Custody and Visitation.
III. Support.
- A. Factors for Consideration.
- B. Illustrative Cases.

I.General Consideration.

Editor’s note. —

Many of the cases decided before 1982 cited below were decided under former § 20-107 .

Legislative purpose. —

The evident purpose of the legislature was to give to the court the largest discretion in respect to the estate of the parties, and not to relieve the offending parent of any duty, moral, social, or otherwise. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

Divorce statutes do not convey broad equitable powers onto the trial court. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

As to liberal construction of former section, see Bailey v. Bailey, 172 Va. 18 , 200 S.E. 622 , 1939 Va. LEXIS 215 (1939); Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

The welfare of the child is to be regarded more highly than the technical legal rights of the parent. Where the interest of the child demands it, the rights of the father and mother may be disregarded. Forbes v. Haney, 204 Va. 712 , 133 S.E.2d 533, 1963 Va. LEXIS 204 (1963).

Discretion of trial court. —

The authority given the trial court as to the care, custody and maintenance of the infant children of the parties is a judicial discretion which the trial court must exercise with the welfare of the infant as the paramount consideration. Allen v. Allen, 188 Va. 717 , 51 S.E.2d 207, 1949 Va. LEXIS 242 (1949).

The authority granted the trial court by this section to determine custody and require support of infant children in a divorce action is a matter of judicial discretion to be exercised with the child’s welfare as the paramount consideration. D'Auria v. D'Auria, 1 Va. App. 455, 340 S.E.2d 164, 1986 Va. App. LEXIS 223 (1986).

The trial court’s decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it. Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

A decree based on depositions, though not as conclusive as one based on evidence heard ore tenus, is nonetheless presumed to be correct and, when supported by substantial and credible evidence, will not be overturned. Keith v. Keith, No. 0215-91-3 (Ct. of Appeals Oct. 22, 1991).

Power of court to decree as to children in suits annulling marriage. —

A court, upon decreeing a marriage null and void, has jurisdiction and power to decree as to the care and custody of the children of the marriage. Henderson v. Henderson, 187 Va. 121 , 46 S.E.2d 10, 1948 Va. LEXIS 205 (1948).

Material change in circumstances absent. —

Father’s motion for modification of child support was properly denied, because he failed to establish an increase in the mother’s income, and despite the father’s claim that his income dropped due to a decrease in the gross receipts of his business, the evidence showed that his income had increased every year and was nearly 70% higher than in the tax year before the divorce decree. Ford v. Johansen, 2017 Va. App. LEXIS 31 (Va. Ct. App. Feb. 7, 2017).

Jurisdiction. —

Trial court had equity jurisdiction to award child support because the case originally began as a suit for divorce; where a case is originally filed as a divorce proceeding and includes child custody and child support issues, and where the trial court has jurisdiction to decide child custody, even though it does not end up exercising jurisdiction over the divorce itself, the trial court also retains jurisdiction to award child support as an equitable concomitant to its jurisdiction over child custody. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Jurisdiction improperly exercised. —

As neither party sought modification of a child support order in the juvenile and domestic relations district (JDR) court, the circuit court, in an appeal from the JDR court, had no jurisdiction to sua sponte increase the father’s child support obligation. Tedford v. Dean-Bryant, 2004 Va. App. LEXIS 458 (Va. Ct. App. Sept. 28, 2004).

II.Custody and Visitation.

Welfare of child is controlling as to custody. —

In all custody cases the controlling consideration is always the child’s welfare. Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971); Brown v. Brown, 218 Va. 196 , 237 S.E.2d 89, 1977 Va. LEXIS 178 (1977).

In making a decree concerning the custody, visitation and support of minor children, the court must give primary consideration to the welfare of the child or children. Pope v. Pope, No. 2435-92-1 (Ct. of Appeals Feb. 8, 1994).

Best interests of children paramount. —

In determining custody and visitation of minor children, the best interests of the children are paramount. In making this decision, a court must consider those factors enumerated in this section prior to the 1994 amendment. A change of custody is warranted if a change of circumstances has occurred since the most recent custody award and the requested change of custody is in the best interests of the child. Bourne v. Frey, 1994 Va. App. LEXIS 747 (Va. Ct. App. Dec. 20, 1994).

In custody disputes the welfare of the children is of primary and paramount importance. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986); Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

The best interests of the children control the issue of a change of custody or the issue of a custodial parent moving the children to another state. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

In determining what is in the best interest of a minor child whose custody is an issue between the parents, the court must look to and consider the qualifications and fitness of the parents, their adaptability to the task of caring for the child, their ability to control and direct it, the age, sex and health of the child, its temporal and moral well being, as well as the environment and circumstances of its proposed home and the influences likely to be exerted upon the child. Campbell v. Campbell, 203 Va. 61 , 122 S.E.2d 658, 1961 Va. LEXIS 221 (1961); Hall v. Hall, 210 Va. 668 , 173 S.E.2d 865, 1970 Va. LEXIS 181 (1970).

In determining the best interest of the child, the court must decide by considering all the facts, including what effect a nonmarital relationship by a parent has on the child. Brown v. Brown, 218 Va. 196 , 237 S.E.2d 89, 1977 Va. LEXIS 178 (1977).

In determining the best interests of the children, a court must consider all the evidence and facts before it. Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646, 1986 Va. App. LEXIS 257 (1986).

Error where court appeared to employ several sets of criteria. —

Where the issue before the trial court was an initial determination of custody, where the trial court set forth in criteria found in this section and the criteria found in Keel v. Keel , 225 Va. 606 , 303 S.E.2d 917 (1983), and where it was not clear upon which set of criteria the trial court’s decision was based, and it appeared that the court employed both, this was error; Keel did not apply, and the matter should have been determined according to the criteria of this section. Metz v. Metz, No. 0529-89-1 (Ct. of Appeals May 29, 1990).

The custody of minor children is never to be given to one parent to punish the other. Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

The moral climate in which children are to be raised is an important consideration for the court in determining custody, and adultery is a reflection of a mother’s moral values. Brown v. Brown, 218 Va. 196 , 237 S.E.2d 89, 1977 Va. LEXIS 178 (1977).

An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding. Brown v. Brown, 218 Va. 196 , 237 S.E.2d 89, 1977 Va. LEXIS 178 (1977).

Adultery as factor in determining custody. —

Evidence of adultery, without more, is an insufficient basis upon which to find that a parent is an unfit custodian of his or her child. However, in determining a child’s best interest, the extent to which the child is exposed to an illicit relationship must be given the “most careful consideration” in a custody proceeding. Furthermore, adultery is a reflection of a parent’s moral values which should be considered in evaluating the moral climate in which a child is to be reared. Brinkley v. Brinkley, 1 Va. App. 222, 336 S.E.2d 901, 1985 Va. App. LEXIS 89 (1985).

There is no per se rule prohibiting awarding custody to a parent involved in an adulterous relationship; instead, the controlling consideration is always the child’s welfare and the best interest of the child. Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415, 8 Va. Law Rep. 3134, 1992 Va. App. LEXIS 154 (1992).

While an illicit relationship to which minor children are exposed cannot be condoned, there is not a per se rule prohibiting awarding custody to a parent involved in an adulterous relationship. Lewis v. Lewis, No. 0870-93-1 (Ct. of Appeals Dec. 7, 1993).

Award of custody to parent who carries on homosexual relationship in residence improper. —

The wishes of the children, if they are of the age of discretion, should be considered and given weight, although their wishes are not conclusive. Hall v. Hall, 210 Va. 668 , 173 S.E.2d 865, 1970 Va. LEXIS 181 (1970).

The effect of the separation of siblings must be and should be considered by a court during both the initial determination of custody and in subsequent determinations of change of custody, nonetheless, there is not support for the contention that this consideration is paramount to others. Hughes v. Gentry, 18 Va. App. 318, 443 S.E.2d 448, 10 Va. Law Rep. 1332, 1994 Va. App. LEXIS 258 (1994).

Discretion of trial court. —

When the question as to the custody of the child has to be decided, the court will exercise its discretion according to the facts, consulting the infant’s wishes, if of the age of discretion, and if not, exercise its own judgment as to what is best calculated to promote the infant’s welfare, having due regard to the legal rights of the claimants. Armstrong v. Stone, 50 Va. (9 Gratt.) 102, 1852 Va. LEXIS 52 (1852); Coffee v. Black, 82 Va. 567 , 1886 Va. LEXIS 75 (1886); Parrish v. Parrish, 116 Va. 476 , 82 S.E. 119 , 1914 Va. LEXIS 53 (1914).

Abuse of discretion. —

In a determination of child support, if the court’s findings are not supported by evidence in the record, the court has abused its discretion. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

Decision based on ore tenus hearing entitled to great weight. —

In determining the best interests of the children, a court must consider all the evidence and facts before it. The trial court’s decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

A trial court’s custody decision, when based on an ore tenus hearing, is entitled to great weight and will not be disturbed on appeal unless it is plainly wrong or there is no evidence to support it. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

Reliance on report of expert. —

The trial court, acting in the best interests of the child, was free to hold a hearing and modify custody based in part on the informed opinion of a clinical psychologist who had met with the parents and the child numerous times. Russell v. Russell, 2006 Va. App. LEXIS 440 (Va. Ct. App. Oct. 3, 2006).

Court retains jurisdiction throughout infancy of child. —

Relief remains within the court’s jurisdiction throughout the infancy of the child involved. Andrews v. Geyer, 200 Va. 107 , 104 S.E.2d 747, 1958 Va. LEXIS 165 (1958).

Jurisdiction of court where children not resident in State. —

Even though the children were not within the State, nor domiciled nor resident therein, court having jurisdiction of proceeding involving the right of custody, and jurisdiction of the person of the parties thereto, the husband and the wife had full power and authority to enter a personal decree, effective between the husband and wife, awarding the custody of the children. Gramelspacher v. Gramelspacher, 204 Va. 839 , 134 S.E.2d 285, 1964 Va. LEXIS 128 (1964).

Grant of comity to order of foreign nation. —

The courts of this Commonwealth, when required to determine whether comity should be granted to a child custody order entered by a foreign nation, should conduct a three-fold inquiry: (1) did the foreign court have jurisdiction over the parties and the subject matter?; (2) was the procedural and substantive law applied by the foreign court reasonably comparable to that of Virginia?; and (3) was the foreign order based upon a determination of the best interests of the child? When Virginia courts find affirmative answers to all three questions, they should grant comity to the foreign order unless, since the time it was entered, a change in conditions justifies modification in the interest of the child. Oehl v. Oehl, 221 Va. 618 , 272 S.E.2d 441, 1980 Va. LEXIS 282 (1980).

Formerly, the father was the legal custodian of the minor children and they would not be taken from his custody without the strongest reasons therefor; this right was not affected by the voluntary separation of the parties. Latham v. Latham, 71 Va. (30 Gratt.) 307, 1878 Va. LEXIS 68 (1878).

But court would exercise discretion in determining who shall have custody. —

In controversies over the custody of children of divorced parents, while the law recognized the primary right of the father to the custody of the child, the court would exercise its discretion according to the facts and what appeared to be best calculated to promote the infant’s welfare, having due regard to the legal rights of the party claiming custody. The welfare of the child was the controlling consideration. Meyer v. Meyer, 100 Va. 228 , 40 S.E. 1038 , 1902 Va. LEXIS 20 (1902); Parrish v. Parrish, 116 Va. 476 , 82 S.E. 119 , 1914 Va. LEXIS 53 (1914).

As to the presumption that the mother was the natural custodian of children of tender years, see Campbell v. Campbell, 203 Va. 61 , 122 S.E.2d 658, 1961 Va. LEXIS 221 (1961); Rowlee v. Rowlee, 211 Va. 689 , 179 S.E.2d 461, 1971 Va. LEXIS 243 (1971).

For case holding that the innocent parent on whose prayer a divorce is granted is usually entitled to the custody of the children, see Owens v. Owens, 96 Va. 191 , 31 S.E. 72 , 1898 Va. LEXIS 78 (1898) (see also Bailey v. Bailey, 62 Va. (21 Gratt.) 43 (1871)).

“Rule” of Moore v. Moore is not rule of law. —

The “rule” of Moore v. Moore , 212 Va. 153 , 183 S.E.2d 172 (1971) that the best interests of a child of tender years are served by being with his mother is not a rule of law. Indeed, § 31-15, which provides that a court, in a child custody case, shall give primary consideration to the welfare of the child, expressly states that there shall be no presumption of law in favor of either parent. Harper v. Harper, 217 Va. 477 , 229 S.E.2d 875, 1976 Va. LEXIS 307 (1976).

Trial court did not improperly rely on the “tender years” presumption in granting sole custody to the mother, where the court did not tie the child’s youth to some abstract need for his mother but merely noted the child’s youth in order to explain why the child would benefit from having a parent with more time free to spend at home. Keith v. Keith, No. 0215-91-3 (Ct. of Appeals Oct. 22, 1991).

At most, the principle for which Moore stands is no more than a permissible and rebuttable inference, that when the mother is fit, and other things are equal, she, as the natural custodian, should have custody of a child of tender years. Harper v. Harper, 217 Va. 477 , 229 S.E.2d 875, 1976 Va. LEXIS 307 (1976).

No presumption that father preferred as custodian of male child. —

While Virginia courts no longer recognize any stereotypical gender based presumption that a mother is presumed to be the preferred custodian of a child of tender years, neither will the courts indulge a presumption that a father is preferred as the custodian of his male adolescent child. Gerber v. Gillette, No. 0803-89-2 (Ct. of Appeals Aug. 28, 1990).

Where custody of children is awarded to mother, court may order that husband pay a certain sum for their maintenance. Heninger v. Heninger, 90 Va. 271 , 18 S.E. 193 , 1893 Va. LEXIS 45 (1893).

Evidence supporting award of custody to mother. —

For case where evidence showed “other things were equal” so as to support award of custody to the mother, see Harper v. Harper, 217 Va. 477 , 229 S.E.2d 875, 1976 Va. LEXIS 307 (1976).

For additional cases upholding award of custody to mother, see Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 1871 Va. LEXIS 81 (1871); Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887); Trimble v. Trimble, 97 Va. 217 , 33 S.E. 531 , 1899 Va. LEXIS 29 (1899); Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

Evidence supporting award of custody to father. —

Although the evidence did not show that the mother was an unfit parent, it did show that her home was not as suitable for a young child as the father’s home. Thus, the chancellor (now judge) did not err in awarding custody of the child to the father, with visitation rights reserved to the mother. White v. White, 215 Va. 765 , 213 S.E.2d 766, 1975 Va. LEXIS 225 (1975).

For cases upholding award of custody to father, see also. 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); Brown v. Brown, 24 S.E. 238 (Va. Ct. App. 1896); Denny v. Denny, 118 Va. 79 , 86 S.E. 835 , 1915 Va. LEXIS 125 (1915).

For case holding divided custody in child’s best interest under the facts, see Andrews v. Geyer, 200 Va. 107 , 104 S.E.2d 747, 1958 Va. LEXIS 165 (1958).

Standard for a change in custody. —

After a material change of circumstances has been established, a trial judge, in determining the best interests of a child, may properly consider the factors set forth in this section; those factors are normally considered in a custody hearing and include any other factors as are necessary to consider the best interests of the child or children. Ohlen v. Shively, 16 Va. App. 419, 430 S.E.2d 559, 9 Va. Law Rep. 1363, 1993 Va. App. LEXIS 139 (1993).

As to modification of decree for divided custody on appeal, see Brooks v. Brooks, 201 Va. 731 , 113 S.E.2d 872, 1960 Va. LEXIS 154 (1960).

Test for determining whether change in custody is warranted is two-pronged and requires: (1) A change in circumstances since the most recent custody award, which encompasses not only negative changes in the home of the custodial parent but also positive changes involving the noncustodial parent; and (2) that a change in custody be in the best interest of the children. Eichelberger v. Eichelberger, No. 0002-85 (Ct. of Appeals Jan. 8, 1986).

When a petition to change custody is filed, the trial court, in determining whether a change of custody should be made, must apply a two-pronged test, to-wit: (1) whether there has been a change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child. Holloway v. Holloway, No. 1744-89-2 (Ct. of Appeals Oct. 23, 1990).

Power to alter or change custody. —

It is rare when a court can be positive, at the time, that its award of custody will prove to be for the best interest of the child, which is the paramount question. The uncertainty involved is the reason the court is empowered to alter or change the custody of children, viewed in the light of subsequent events. Andrews v. Geyer, 200 Va. 107 , 104 S.E.2d 747, 1958 Va. LEXIS 165 (1958).

Transfer of male child from mother to father affirmed. —

Transfer of custody of 14-year-old male child from mother to father was affirmed, where the trial court could well have concluded from the evidence that the child needed stronger guidance and discipline which he would best receive from being in the custody of his father with “reasonable liberal visitation” to the mother. Gerber v. Gillette, No. 0803-89-2 (Ct. of Appeals Aug. 28, 1990).

Determination of visitation rights. —

In determining visitation rights, a court must review the custodial situation. Wilson v. Wilson, 12 Va. App. 1251, 408 S.E.2d 576, 8 Va. Law Rep. 659, 1991 Va. App. LEXIS 219 (1991).

Discretion as to visitation rights. —

The authority given the trial court concerning visitation rights of the parent is a matter of the exercise of its sound judicial discretion and will not be interfered with on appeal absent a showing of an abuse of that discretion. Hughes v. Hughes, No. 0327-85 (Ct. of Appeals Nov. 8, 1985).

Modification of visitation rights. —

A court, through its power to modify decrees, may also make such modifications as it deems expedient concerning visitation rights of the parents. Visitation rights of a non-custodial parent are subordinate to the welfare of the infant. Eichelberger v. Eichelberger, No. 0002-85 (Ct. of Appeals Jan. 8, 1986).

Failure to consider enumerated factors in fixing visitation rights. —

Where the General Assembly has directed courts to consider specifically enumerated factors in exercising discretion to determine domestic relations issues, it is reversible error for the trial judge to fail to consider those specifically enumerated factors. Given the mandatory wording of subdivision 1, the same rationale is applicable to decrees fixing the visitation rights of parents with their children. Robinson v. Robinson, 5 Va. App. 222, 361 S.E.2d 356, 4 Va. Law Rep. 930, 1987 Va. App. LEXIS 235 (1987).

Limitation upon visitation rights. —

The strict limitation upon visitation by the non-custodial parent to one hour every two weeks in the department of social services’ offices under the immediate supervision of a social worker was not justified and constituted an abuse of discretion. Fussell v. Fussell, Nos. 1524-85 and 0759-86-4 (Ct. of Appeals Aug. 31, 1987).

Trial court did not err in imposing restrictions on visitation which it deemed to be in the best interests of the children including restrictions concerning the presence of other people and travel restrictions during visitation; the restrictions did not interfere in any way with the relationship between the father and his children. Shea v. Shea, No. 1003-89-1 (Ct. of Appeals May 22, 1990).

Restriction on travel. —

It was not an abuse of discretion for a trial court to deny a father’s request to bar any international travel by the mother with the children because (1) there was no evidence that the mother would permanently take the children to the mother’s native country of Japan, and, (2) in consideration of that unlikely possibility, the mother was barred from taking the children to Japan without the father’s consent or a court order. Wiencko v. Takayama, 62 Va. App. 217, 745 S.E.2d 168, 2013 Va. App. LEXIS 207 (2013).

Authority to bar derogatory comments about ex-spouse. —

Trial court had authority to require mother’s husband to refrain from making derogatory comments about father in the presence of the children. Mother’s husband had testified as a witness, was present in court, and was subject to the court’s authority. There was no question mother’s husband had sufficient notice, as the trial court spoke directly to mother’s husband and ordered him to avoid making any comments about father in the presence of the children. In exercising its authority to promote the best interests of the children, a trial court may impose restrictions which affect non-parties. Forrest v. Ruhlin, No. 2256-94-4 (Ct. of Appeals July 18, 1995).

In furtherance of the children’s best interests, the trial court was authorized to order mother to refrain from making derogatory comments about ex-spouse, regardless whether such comments had been made in the past. Forrest v. Ruhlin, No. 2256-94-4 (Ct. of Appeals July 18, 1995).

The relationship between a child and noncustodial parent should not be subject to the dictates of the custodial parent unless circumstances justify placing restrictions or conditions on the visitation privileges. Eichelberger v. Eichelberger, 2 Va. App. 409, 345 S.E.2d 10, 1986 Va. App. LEXIS 287 (1986).

When conditions are placed on visitation between a noncustodial parent and his child, it should be with the awareness that, except under unusual circumstances, maintaining close ties with the noncustodial parent is in a child’s best interest. Eichelberger v. Eichelberger, 2 Va. App. 409, 345 S.E.2d 10, 1986 Va. App. LEXIS 287 (1986).

When visitation privileges have been liberally granted without restriction, absent a finding by the court that the noncustodial parent has acted without concern for the child’s well-being or best interest, has demonstrated irresponsible conduct, or has interfered with basic decisions in areas which are the responsibility of the custodial parent, or a finding that the activity which is questioned by the custodial parent presents a danger to the child’s safety or well-being, neither the custodial parent nor the court may intervene to restrict activities during visitation. Eichelberger v. Eichelberger, 2 Va. App. 409, 345 S.E.2d 10, 1986 Va. App. LEXIS 287 (1986) (holding that the trial court erroneously concluded that the custodial parent had the right to decide whether eight-year-old child could ride a minibike while visiting with noncustodial parent).

Parent cannot be required to take child to church during visitation. —

Provision in the court’s decree requiring the child’s mother to take the child to church or relinquish custody to the father in order that he may do so compelled the child’s mother to attend church or to relinquish a portion of her limited visitation time; regardless of the trial judge’s motivation, the State may not require a citizen to attend any religious worship. Such provisions violate Va. Const., Art. I, § 16, which guarantees that “[n]o man shall be compelled to frequent or support any religious worship.” Carrico v. Blevins, 12 Va. App. 47, 402 S.E.2d 235, 7 Va. Law Rep. 1874, 1991 Va. App. LEXIS 40 (1991).

Moving child away from noncustodial parent. —

A parent’s devotion is in a child’s best interest only when expressed in a manner beneficial to the child. When considering whether a child may be moved away from a noncustodial parent, the question is whether the benefit is available to the child only if he or she lives in close proximity to the noncustodial parent. Scinaldi v. Scinaldi, 2 Va. App. 571, 347 S.E.2d 149, 3 Va. Law Rep. 125, 1986 Va. App. LEXIS 308 (1986).

A noncustodial parent always has an added difficulty in maintaining a relationship with a child when the child lives some distance away. This increased difficulty alone should not be allowed to deny a custodial parent the freedom to choose where he or she and the children will reside. Therefore, the added difficulty in maintaining a beneficial relationship between a child and a noncustodial parent should not be the sole basis for restricting a custodial parent’s residence except where the benefits of the relationship cannot be substantially maintained if the child is moved away from the noncustodial parent. Scinaldi v. Scinaldi, 2 Va. App. 571, 347 S.E.2d 149, 3 Va. Law Rep. 125, 1986 Va. App. LEXIS 308 (1986).

Removal of child to another state. —

It is not the law in Virginia that custodial parent seeking permission to remove children from the Commonwealth must establish a real advantage to that parent in the move or that the move is not inimical to the best interests of the children. The rule in Virginia merely states that the move will be allowed if the trial court determines that it is in the best interests of the children. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

A court may forbid a custodial parent from removing a child from the State without the court’s permission, or it may permit the child to be removed from the State. But in either instance the determination must be based on the child’s best interest. Scinaldi v. Scinaldi, 2 Va. App. 571, 347 S.E.2d 149, 3 Va. Law Rep. 125, 1986 Va. App. LEXIS 308 (1986).

III.Support.

A.Factors for Consideration.

Flexibility in statutory scheme for awards in nature of alimony. —

Trial court vested with discretionary power. —

This section vests discretion in the trial court in awarding child support and such awards will not be reversed on appeal unless plainly wrong or unsupported by the evidence. Auman v. Auman, 21 Va. App. 275, 464 S.E.2d 154, 1995 Va. App. LEXIS 863 (1995).

Inappropriate statutory ground for relief. —

Section 20-74 does not confer authority to the circuit courts to modify child support decrees entered pursuant to this section. Aviles v. Aviles, 14 Va. App. 360, 416 S.E.2d 716, 8 Va. Law Rep. 2925, 1992 Va. App. LEXIS 297 (1992).

The presumptive amount determined from § 20-108.2 must be awarded, etc. unless, because of evidence of one or more factors enumerated in this section and § 20-108.1 , such amount is “unjust or inappropriate.” Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

Furthermore, if such amount is found to be “unjust or inappropriate,” any variation from that amount must be calculated by adding or subtracting a just and appropriate amount from the presumptive amount reflected in § 20-108.2 , and not to or from a previously determined child support award. Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

In determining child support, there is a rebuttable presumption that the amount determined in accordance with the statutory guidelines is the correct award. Hare v. Hare, 2000 Va. App. LEXIS 306 (Va. Ct. App. Apr. 25, 2000).

Trial judge must adhere to relevant statutory requirements. —

There may be sufficient grounds for the trial judge to rebut the presumption found in this section and § 20-108.1 ; however, the trial judge must adhere to the statute and give an analysis using the required factors in his decision. Where the trial judge failed to satisfy § 20-108.2 , the child support award in an amount different from that contained in the guidelines could not stand. Smith v. Smith, No. 2336-91-1 (Ct. of Appeals Nov. 10, 1992).

Presumptive amount may be adjusted based on factors found in this section. —

The starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in subsection B of § 20-108.2 ; no additions or subtractions from the gross income, as defined in subsection C of § 20-108.2 , even if otherwise valid considerations, may be made before this figure is determined. However, after determining the presumptive amount of support according to the schedule, the trial court may adjust the amount based on the factors found in this section and § 20-108.1 .Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

Once the presumptive amount of child support is determined, the trial court may deviate from the presumptive amount if such deviation is justified by factors recognized in this section and § 20-108.1 .Scott v. Scott, 12 Va. App. 1245, 408 S.E.2d 579, 8 Va. Law Rep. 666, 1991 Va. App. LEXIS 226 (1991).

The reasons justifying such a variation must be from among those factors recognized by subsection B of § 20-108.2 for this purpose and must be expressed in written findings sufficient to permit an effective appellate review of the exercise of the trial court’s discretion. Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

If the applicability of the factors is supported by the evidence and the trial judge has not otherwise abused his or her discretion, the deviation from the presumptive support obligation will be upheld on appeal. Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

Provision for support in separation agreement. —

When awarding child support and presented with a provision for child support in a separation agreement, a trial court need not award child support in the statutorily presumptive amount if a deviation from such amount is justified. However, it must determine the guideline amount and then may compare this amount with the provisions of the separation agreement. Scott v. Scott, 12 Va. App. 1245, 408 S.E.2d 579, 8 Va. Law Rep. 666, 1991 Va. App. LEXIS 226 (1991).

Where a trial court determined the presumptively correct amount of child support pursuant to the code and enumerated the factors it considered before concluding that the circumstances of the case warranted a deviation from the statutory guidelines and specifically found that the parties’ agreement protected the best interests of the children, it had complied with the statutory requirements. Looney v. Looney, 32 Va. App. 134, 526 S.E.2d 777, 2000 Va. App. LEXIS 250 (2000).

Factors considered in making award of support. —

Both the income of the parties and the provisions of the monetary award are factors for the court’s consideration in making an award of child supporting pursuant to subdivision 2 of this section. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

In calculating a child support award, the trial judge is authorized to consider “the earning capacity of each parent.” Hur v. Virginia Dep't of Social Serv. Div. of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454, 8 Va. Law Rep. 731, 1991 Va. App. LEXIS 250 (1991).

Where parents have agreed upon an amount, or agreed upon other provisions, for the support and maintenance of a child, the trial court must consider the provisions of the agreement, that relate to the factors of this section and § 20-108.1 , in deciding whether the presumptive amount would be unjust or inappropriate in a particular case. In so doing, the trial court must consider whether the agreed provisions for the child would better serve the interest or “equities” for the parents and children. Watkinson v. Henley, 13 Va. App. 151, 409 S.E.2d 470, 8 Va. Law Rep. 819, 1991 Va. App. LEXIS 258 (1991).

Null and void agreement 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, the challenged provision of the agreement was null and void because it violated clearly established law. Kelley v. Kelley, 248 Va. 295 , 449 S.E.2d 55, 1994 Va. LEXIS 119 (1994).

Weight given to statutory factors. —

The trial court was not required to specify what weight it gave to each statutory factor set forth in subdivision 2 of this section. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

Consideration of only some of statutory factors is error. —

Just as it is error for the court to ignore statutorily mandated factors when determining an award of spousal support, it is error for a court to consider only some of the statutorily mandated factors when initially determining what would be a proper amount of child support. Lee v. Lee, 3 Va. App. 631, 352 S.E.2d 534, 3 Va. Law Rep. 1761, 1987 Va. App. LEXIS 149 (1987).

Where the hearing held by the court was in effect an initial child support hearing, the court erred in considering only factors that would be relevant to a motion to reduce support due to a change in circumstances. Lee v. Lee, 3 Va. App. 631, 352 S.E.2d 534, 3 Va. Law Rep. 1761, 1987 Va. App. LEXIS 149 (1987).

Amount and method of paying the monetary award was a circumstance which the trial court would have been justified in considering pursuant to § 20-107.1 and former subdivision (2) (g) of this section in making its original support award. Gold v. Gold, No. 1642-89-3 (Ct. of Appeals April 2, 1991) (decided prior to the 1991 amendment).

An award of child support must be based on current circumstances. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

Increase in spendable income is a change in circumstance which may be considered in modifying award. Gold v. Gold, No. 1642-89-3 (Ct. of Appeals April 2, 1991).

Factors considered in considering petition to reduce support. —

Section 20-108 directs the court to consider matters relevant to the circumstances of the parties and the benefit of the children which arise in the factual context of the petition for modification of support; therefore, the trial court did not err when it ruled it was not bound to consider all of the factors in hearing the father’s petition for reduction of child support. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

The fault bar to spousal support applies only when there exists legal grounds upon which a divorce may be obtained. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Laches is not a defense to noncompliance with the provisions of a lawful decree ordering monthly payments for alimony and child support. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Past-due child support obligations may not be included in a Chapter 13 plan under the federal Bankruptcy Code. Caswell v. Lang, 757 F.2d 608, 1985 U.S. App. LEXIS 29775 (4th Cir. 1985).

Effect of child’s reaching majority. —

The divorce court’s jurisdiction over a child is eliminated ipso facto when the child reaches his majority. Moreover, the same event terminates, by operation of law, the prospective effect of the judicial support decree. The statutory limitation on the divorce court’s authority to order payment of child support cannot be nullified by the entry of a support order during minority. Eaton v. Eaton, 215 Va. 824 , 213 S.E.2d 789, 1975 Va. LEXIS 233 (1975).

Once a child reaches majority, the jurisdiction of the divorce court to provide for his support and maintenance terminates unless otherwise provided by agreement incorporated into the divorce decree. Hosier v. Hosier, 221 Va. 827 , 273 S.E.2d 564, 1981 Va. LEXIS 215 (1981); Rodriguez v. Rodriguez, 1 Va. App. 87, 334 S.E.2d 595, 1985 Va. App. LEXIS 67 (1985).

Strained relations alone are insufficient to deny child support. —

Severely strained and antagonistic relationships in the family unit are not sufficient, standing alone, to deny support payments for children. Rippe v. Rippe, 3 Va. App. 506, 351 S.E.2d 181, 3 Va. Law Rep. 1517, 1986 Va. App. LEXIS 389 (1986).

Both parents of a child owe their child a duty of support during minority. Featherstone v. Brooks, 220 Va. 443 , 258 S.E.2d 513, 1979 Va. LEXIS 279 (1979).

Contract may determine college education expense obligation. —

No law requires a parent to provide the expenses for an adult child to attend college. Such is true whether the parents are married or divorced. Thus, where parents seek to include such an obligation in their separation contract, the plain and unambiguous terms of their contract establish the rights and obligations of the parties. Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 1994 Va. App. LEXIS 692 (1994).

Contractual veto right of college choice upheld. —

Where the contract provided the father with a right to veto the selection of a particular college and, by exercising that right, to eliminate any obligation to pay a parental share of the expenses incurred at a college rejected by him, the court was not at liberty to impose a limitation on that veto right not found in the terms of the parties’ contract even though the parties could easily have done so. Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 1994 Va. App. LEXIS 692 (1994).

No presumption that parents should contribute equally to support. —

Although both parents owe their child a duty of support during the child’s minority, there is no presumption that each party should contribute equally to the financial cost even if both earn the same income. Young v. Young, 3 Va. App. 80, 348 S.E.2d 46, 3 Va. Law Rep. 433, 1986 Va. App. LEXIS 338 (1986).

Noncustodial spouse’s ability to pay. —

In a hearing on a motion for child support, while it would be error for a court to limit the questioning to only one spouse’s ability to pay, the court’s comment that the “primary focus” should be on the noncustodial spouse’s ability to pay was more in the nature of a comment than a ruling, where at no point did the court foreclose inquiry into the custodial spouse’s financial resources or indicate that this factor would not be considered. Meneely v. Meneely, No. 0682-85 (Ct. of Appeals July 18, 1986).

Cost of living. —

Where the trial court found that the cost of living in the Kingdom of Jordan was substantially lower than in Virginia, and that as such, the guideline level of $390 per month was unjust and inappropriate, the trial court’s deviation from the guidelines amount was supported where in addition to the cost of living differential, it did not impose a lower standard of living on the child, reflected no abuse of discretion, was authorized by subsection B of § 20-108.1 , provided appropriately for the child, and was affordable by the father. Jariri v. Div. of Child Support Enforcement, 2004 Va. App. LEXIS 555 (Va. Ct. App. Nov. 16, 2004).

For case holding language of former section broad enough to include education, see Heninger v. Heninger, 90 Va. 271 , 18 S.E. 193 , 1893 Va. LEXIS 45 (1893).

B.Illustrative Cases.

Where the evidence established that wife had worked briefly at the beginning of the marriage but had not been employed outside the home after the birth of the couple’s children; wife’s teaching certificate was expired; wife was attending paralegal classes, but had not completed the course; no evidence was presented as to the availability of any job for which the wife was qualified or that was available to her and no evidence proved that she could earn a particular wage or salary; the trial judge did not err in refusing to impute income to wife. Herron v. Herron, No. 1824-93-1 (Ct. of Appeals Apr. 5, 1994).

Award of support in excess of husband’s present income held not abuse of discretion. —

Where the trial judge was justified in finding that the husband was capable of earning at least $20,000 annually, the trial court found that the husband was not working up to his potential and was not earnestly trying to secure better employment, the amount of child support and spousal support fixed by the trial court was less than 50% of his earning capacity, and since there was credible evidence in the record to support the judgment of the trial court, the trial court did not abuse its discretion by awarding child support and spousal support in excess of the husband’s present income. Bell v. Bell, No. 0558-86-3 (Ct. of Appeals Jan. 9, 1987).

Where parties earn about the same amount of income, approximately $25,000 annually, but one parent provides considerable nonmonetary contributions to the well-being of the child, the court in its discretion may require the other parent to pay more than one-half of the support. Young v. Young, 3 Va. App. 80, 348 S.E.2d 46, 3 Va. Law Rep. 433, 1986 Va. App. LEXIS 338 (1986).

Determining earning capacity of unemployed spouse. —

If the trial court accepts appellant’s allegation of full unemployment, it must still turn to the guidelines in order to determine how this fact affects the parties’ child support obligations. The dollar amount that results from these calculations is presumptive. The presumptive amount is rebuttable, and the trial court may deviate from it if the court finds that such amount is “unjust or inappropriate.” O'Brien v. Rose, 14 Va. App. 960, 420 S.E.2d 246, 9 Va. Law Rep. 93, 1992 Va. App. LEXIS 219 (1992).

Husband not compelled to support child. —

On granting a wife a divorce from “bed and board” on the ground of cruelty, where it appeared that the wife’s separate property was larger than the husband’s and amply sufficient for the support of herself and child, the husband would not be compelled to contribute to their support. Myers v. Myers, 83 Va. 806 , 6 S.E. 630 , 1887 Va. LEXIS 126 (1887).

Custodial grandparent not required to pay support. —

A child’s grandfather, who had been awarded joint custody together with his ex-wife of their grandchild, was not a “party” under this section who could be required, under § 20-124.2 , to pay support payments to his ex-wife, who had physical custody of the grandchild; instead, the child’s mother and father, because they retained their residual parental rights, were the sole parties who had a duty of support. Russell v. Russell, 35 Va. App. 360, 545 S.E.2d 548, 2001 Va. App. LEXIS 224 (2001).

Support award held error. —

Where the evidence established that wife had no present capability of earning more than $40.00 per week and to require her at this time to contribute monetarily to the child’s support would, in all probability, remove her from the employment rolls and make her a public charge, the trial court’s order that she pay $15.00 a week child support was error. Hines v. Commonwealth, No. 0301-88-1 (Ct. of Appeals Jan. 3, 1989).

Where a trial court conducted an ore tenus hearing on property distribution and was advised that the parties’ marital home had been destroyed by fire and that the wife and child were left without a residence or sufficient funds to obtain shelter, the trial court abused its discretion in allowing the husband to continue to make mortgage payments under a pendente lite child support order and receive credit for them in lieu of making the required child support payments to wife for the child’s benefit. The trial court did not adhere to the statutory child support requirements; child support was not allocated to benefit the child according to the guidelines. Stewart-Payne v. Payne, 2008 Va. App. LEXIS 49 (Va. Ct. App. Jan. 29, 2008).

Collapsing child support and spousal support. —

Child support properly reduced. —

Child support was properly reduced where the court could accept the father’s explanation of his efforts to find comparable work and of his income at a pub; imputation of present income, rather than the amount previously earned, was proper. Hatloy v. Hatloy, 41 Va. App. 667, 588 S.E.2d 389, 2003 Va. App. LEXIS 577 (2003).

It was not proper for the court, under the circumstances, to allow the mother to reduce the amount of support by an allowance for clothing and other items she bought for the children, or for the food and transportation expenses she incurred while exercising her routine visitation privileges. Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291, 8 Va. Law Rep. 3573, 1992 Va. App. LEXIS 168 (1992).

Court order providing for automatic support adjustment held improper. —

A portion of court order that provided that father’s child support obligation would be subject to an automatic yearly adjustment in an amount to be determined by the percentage increase or decrease in salaries of certain employees of the Virginia Department of Highways and Transportation (now Department of Transportation) was improper and would be reversed, as the statutory scheme provided by the General Assembly does not contemplate automatic changes or escalator clauses. Keyser v. Keyser, 2 Va. App. 459, 345 S.E.2d 12, 1986 Va. App. LEXIS 292 (1986).

Evidence did not support increasing father’s payments. —

Where mother introduced evidence to prove what it would cost for her and 10-year-old child to live in a separate home from her mother, but did not testify that she would, in fact, obtain separate housing, and there was insufficient evidence to prove that if she were awarded increased child support, she would spend it on separate housing and expenses in the reasonably foreseeable future, judgment increasing father’s child support payments would be reversed. Young v. Young, 3 Va. App. 80, 348 S.E.2d 46, 3 Va. Law Rep. 433, 1986 Va. App. LEXIS 338 (1986).

Refusal to correct error in decree entered 10 years earlier not error. —

The trial court did not err in not correcting the provision of an order for alimony and child support requiring him to support his daughter, who was 18 at the time of the original decree, on grounds that she may have been emancipated because of her age, where the unitary support award also provided support for the wife and two infant children. Their rights became vested as the payments accrued, and should not be defeated by an error which may have occurred in an order, entered 10 years prior to an action to recover delinquent payments, which the trial court was without power to modify or vacate. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Contempt order for failure to pay support invalid where jurisdiction lacking in original decree. —

Parent is entitled to credit for nonconforming child support payments when he has, by agreement of the parties, assumed physical custody and total responsibility for the support of the child, but has obtained no modification of the decree. Acree v. Acree, 2 Va. App. 151, 342 S.E.2d 68, 1986 Va. App. LEXIS 253 (1986), limited, Hartman v. Hartman, 33 Va. Cir. 373, 1994 Va. Cir. LEXIS 779 (Fairfax County Apr. 13, 1994), limited, Gallagher v. Gallagher, 35 Va. App. 470, 546 S.E.2d 222, 2001 Va. App. LEXIS 388 (2001).

Credit for contributions to child’s college education. —

Husband who was in arrears in support payments could be given credit for nonconforming support payments, where he had, by agreement of the parties, made contributions to the child’s college education instead of making payments directly to the wife. Willis v. Ijams, No. 1748-88-2 (Ct. of Appeals Aug. 7, 1990).

Direct gifts and gratuities not creditable to support obligation. —

Although the husband is required by law to support his children only during their minority, he must pay according to the terms of the decree. Money paid directly to the adult children were gifts or gratuities and cannot be credited to his obligation to pay the support award. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Husband allowed to pay private school costs directly to school. —

Trial court did not err in allowing husband, if he so desired, to pay private school costs directly to the school. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Ordering payments directly to creditors invalid. —

Wife’s tax returns irrelevant in action for delinquent payments. —

Support obligation may be extended past age of majority by contract. —

Parents can contract to extend their legal obligation to support and maintain a child after majority, and when the contractual obligation for this support has been incorporated into a divorce decree, and not thereafter supplanted, altered, or modified, the court retains jurisdiction to enforce the agreement as its decree, unless otherwise limited by the agreement. Fry v. Schwarting, 4 Va. App. 173, 355 S.E.2d 342, 3 Va. Law Rep. 2210, 1987 Va. App. LEXIS 177 (1987).

When support beyond minority required. —

Wife is not obligated to seek reduction in support after each child reaches age 18. On the contrary, in the case of a unitary award for alimony and child support, the husband’s only remedy is to apply to the court for a modification of the decree upon a change of condition. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353, 1986 Va. App. LEXIS 203 (1986).

Failure to provide adjustment in support upon high school graduation. —

Trial court did not err in failing to provide for an adjustment in child support upon child’s graduation from high school. It is the payor spouse’s obligation to seek modification when a change in circumstances occurs. The trial court is not required to speculate as to what the circumstances may be in the future. Brisach v. Brisach, 1992 Va. App. LEXIS 323 (Va. Ct. App. Dec. 1, 1992).

Contract to support children until age 21 not affected by statutory lowering of age of majority. —

Where, in the absence of any evidence to the contrary, the express terms of the contract showed an intent to support the children until each reached age 21 or was “otherwise emancipated” according to the law existing in 1969, the agreement as incorporated contemplated support payments until the children reached the age of 21. The language “otherwise emancipated” did not contemplate emancipation by a statutory lowering of the age of majority, which occurred in 1972, and thus the husband was bound by the express terms of the contract. Fry v. Schwarting, 4 Va. App. 173, 355 S.E.2d 342, 3 Va. Law Rep. 2210, 1987 Va. App. LEXIS 177 (1987).

Daughter had become “otherwise emancipated” within the contemplation of the parties’ separation agreement by virtue of her full-time employment from which she earned $15,260 per annum. Ware v. Ware, 10 Va. App. 352, 391 S.E.2d 887, 6 Va. Law Rep. 2395, 1990 Va. App. LEXIS 89 (1990).

Court order controls over contract provisions. —

When contract provisions as to child support entered into prior to the change in the age of majority were supplanted by a latter court order in a divorce suit entered after the change in majority, the court order controls and support payments were not owing for children over 18 despite contract’s provisions for payments until age 21. Eaton v. Eaton, 215 Va. 824 , 213 S.E.2d 789, 1975 Va. LEXIS 233 (1975).

Trial court not barred from entering qualified domestic relations order. —

Mother could seek a qualified domestic relations order making children alternate payees of the children’s father’s retirement account because (1) the purpose of 29 U.S.C.S. § 1056(d)(3), providing for such an order, was to protect dependent children in a divorce, and (2) the mother’s request related to providing child support, meeting a condition for the entry of a qualified domestic relations order, under 29 U.S.C.S. § 1056(d)(3)(B)(ii)(I). Nkopchieu v. Minlend, 59 Va. App. 299, 718 S.E.2d 470, 2011 Va. App. LEXIS 401 (2011).

Reversible error for trial court to enter support award prior to equitable distribution. —

Retroactive support required. —

While this section vests discretion in the trial court in awarding child support and such awards will not be reversed on appeal unless plainly wrong or unsupported by the evidence,” where the circuit court held that child support payments “are to start from today” and not retroactively, the circuit court abused its discretion because its ruling penalized the beneficiary of the child support, for actions taken not by the child, but by his mother. Gifford v. Dunkum, 1996 Va. App. LEXIS 114 (Va. Ct. App. Feb. 13, 1996).

No abuse of discretion. —

Trial court did not abuse its discretion in ordering child support payments to begin on April 1, 1992 where approximately at the same time the court ruled that father was the infant child’s biological father and awarded him normal visitation rights, and prior to this time, mother had denied paternity to the father, wanted nothing to do with him and had resisted his requests for visitation rights. Rowland v. Shurbutt, No. 2375-92-1 (Ct. of Appeals Aug. 17, 1993).

Circuit court did not err in ordering a father to pay child support, following a material change in circumstances, because the circuit court did not err in reaching its factual conclusions from the evidence regarding the father’s gross income and reasonable business expense deductions — the father’s testimony, tax return, and financial records — and in crediting the mother with child care expenses. Fekete v. Fekete, 2021 Va. App. LEXIS 61 (Va. Ct. App. Apr. 13, 2021).

Invited error. —

Where a wife in a custody dispute agreed upon the action taken by the trial court, and agreed to having the court reserve jurisdiction to decide custody issues after entry of the final decree of divorce, she was not allowed to assume an inconsistent position on appeal. Tafe v. Hackemeyer, 2005 Va. App. LEXIS 134 (Va. Ct. App. Mar. 29, 2005).

CIRCUIT COURT OPINIONS

Best interests of child. —

Based upon the parties stipulation and agreement to same, the circuit court found that there had been changes of circumstances that were material and justified the court reviewing and modifying the issue of custody and visitation as previously determined by the court. Furthermore, the shocking nature of the father’s malicious actions required the court to award sole legal custody to the mother, who was in the best position to serve the interests of the child. Bailey v. Sarina, 2021 Va. Cir. LEXIS 122 (Loudoun County May 6, 2021).

§ 20-107.3. Court may decree as to property and debts of the parties.

Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, or upon the filing with the court as provided in subsection J of a certified copy of a final divorce decree obtained without the Commonwealth, the court, upon request of either party, (i) shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision 3 and (ii) shall determine the nature of all debts of the parties, or either of them, and shall consider which of such debts is separate debt and which is marital debt. The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. The court shall determine the amount of any such debt as of the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and the extent to which such debt has increased or decreased from the date of separation until the date of the evidentiary hearing. Upon motion of either party made no less than 21 days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used. The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.
1. Separate property is (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision 3. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.
2. Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision 3, (ii) that part of any property classified as marital pursuant to subdivision 3, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above. All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property. For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.
3. The court shall classify property as part marital property and part separate property as follows:
  1. In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party. In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.“Personal effort” of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party.
  2. In the case of any pension, profit-sharing, or deferred compensation plan or retirement benefit, the marital share as defined in subsection G shall be marital property.
  3. In the case of any personal injury or workers’ compensation recovery of either party, the marital share as defined in subsection H shall be marital property.
  4. When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.
  5. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.
  6. When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.
  7. When the separate property of one party is commingled into the separate property of the other party, or the separate property of each party is commingled into newly acquired property, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, each party shall be reimbursed the value of the contributed property in any award made pursuant to this section.
  8. Subdivisions 3 d, e and f shall apply to jointly owned property. No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership. For purposes of this subdivision 3, property is jointly owned when it is titled in the name of both parties, whether as joint tenants, tenants by the entireties, or otherwise.
4. Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.
5. Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party’s name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.
For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital property. However, such interests and rights shall not attach to the legal title of such property and are only to be used as a consideration in determining a monetary award, if any, as provided in this section.
Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed. However, upon a finding that separate property of one party is in the possession or control of the other party, the court may order that the property be transferred to the party whose separate property it is. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, jointly owed marital debt, or any part thereof. The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E.As a means of dividing or transferring the jointly owned marital property, the court may transfer or order the transfer of real or personal property or any interest therein to one of the parties, permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property, or order its sale by private sale by the parties, through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition. All decrees entered prior to July 1, 1991, which are final and not subject to further proceedings on appeal as of that date, which divide or transfer or order the division or transfer of property directly between the parties are hereby validated and deemed self-executing. All orders or decrees which divide or transfer or order division or transfer of real property between the parties shall be recorded and indexed in the names of the parties in the appropriate grantor and grantee indexes in the land records in the clerk’s office of the circuit court of the county or city in which the property is located.
In addition, based upon (i) the equities and the rights and interests of each party in the marital property, and (ii) the factors listed in subsection E, the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. An award entered pursuant to this subsection shall constitute a judgment within the meaning of § 8.01-426 and shall not be docketed by the clerk unless the decree so directs. An award entered pursuant to this subsection may be enforceable in the same manner as any other money judgment. The provisions of § 8.01-382 , relating to interest on judgments, shall apply unless the court orders otherwise.Any marital property, which has been considered or ordered transferred in granting the monetary award under this section, shall not thereafter be the subject of a suit between the same parties to transfer title or possession of such property.
The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:
1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;
5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of § 20-91 or § 20-95 ;
6. How and when specific items of such marital property were acquired;
7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
The court shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party or support for the minor children of both parties and shall, after or at the time of such determination and upon motion of either party, consider whether an order for support and maintenance of a spouse or children shall be entered or, if previously entered, whether such order shall be modified or vacated.
In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E:
1. The court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable. No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. “Marital share” means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent. Any determination of military retirement benefits shall be in accordance with the federal Uniformed Services Former Spouses’ Protection Act (10 U.S.C. 1408 et seq.).
2. To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy except to the extent permitted by § 20-107.1:1 . The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.
In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E, the court may direct payment of a percentage of the marital share of any personal injury or workers’ compensation recovery of either party, whether such recovery is payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such recovery is payable, whether by settlement, jury award, court award, or otherwise. “Marital share” means that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.
Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties pursuant to §§ 20-109 and 20-109.1 . Agreements, otherwise valid as contracts, entered into between spouses prior to the marriage shall be recognized and enforceable.
A court of proper jurisdiction under § 20-96 may exercise the powers conferred by this section after a court of a foreign jurisdiction has decreed a dissolution of a marriage or a divorce from the bond of matrimony, if (i) one of the parties was domiciled in this Commonwealth when the foreign proceedings were commenced, (ii) the foreign court did not have personal jurisdiction over the party domiciled in the Commonwealth, (iii) the proceeding is initiated within two years of receipt of notice of the foreign decree by the party domiciled in the Commonwealth, and (iv) the court obtains personal jurisdiction over the parties pursuant to subdivision A 9 of § 8.01-328.1 , or in any other manner permitted by law.
The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to:
1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D;
2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section;
3. Appoint a special commissioner to transfer any property under subsection C where a party refuses to comply with the order of the court to transfer such property; and
4. Modify any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.
If it appears upon or after the entry of a final decree of divorce from the bond of matrimony that neither party resides in the city or county of the circuit court that entered the decree, the court may, on the motion of any party or on its own motion, transfer to the circuit court for the city or county where either party resides the authority to make additional orders pursuant to subsection K or to carry out or enforce any stipulation, contract, or agreement between the parties that has been affirmed, ratified, and incorporated by reference pursuant to § 20-109.1 .

History. 1982, c. 309; 1984, c. 649; 1985, cc. 4, 442; 1986, cc. 533, 537; 1988, cc. 745, 746, 747, 825, 880; 1989, c. 70; 1990, cc. 636, 764; 1991, cc. 632, 640, 698; 1992, c. 88; 1993, c. 79; 2004, cc. 654, 757; 2006, c. 260; 2010, c. 506; 2011, c. 655; 2012, c. 144; 2016, c. 559; 2017, c. 797; 2019, c. 304.

Cross references.

As to effect of divorce on multiple party accounts, see § 6.2-607 .

As to court allowing one expert witness for each party to remain in the courtroom in cases pertaining to distribution of marital property under this section, see § 8.01-375 .

As to provision that a decree, etc., for support and maintenance of a spouse or of infant children payable in future installments or a monetary award for future installments as provided for in § 20-107.3 shall be a lien upon such real estate of the obligor as the court shall, from time to time, designate by order or decree, see § 8.01-460 .

Editor’s note.

Acts 1990, c. 636, cl. 2 and c. 764, cl. 2, provided: “That the provisions of this act shall apply only to suits filed after July 1, 1990.”

At the direction of the Code Commission, in subdivision E 5, substituted “subdivision A (1), (3) or (6) of § 20-91 ” for “subdivision (1), (3) or (6) of § 20-91 .”

The 2004 amendments.

The 2004 amendments by cc. 654 and 757 are nearly identical and substituted “21 days” for “twenty-one days” in subsection A; inserted present subdivision E 10; redesignated former subdivision E 10 as subdivision E 11 and made a related change; and substituted “50” for “fifty” in subdivision G 1.

The 2006 amendments.

The 2006 amendment by c. 260 inserted subdivision A 3 g and redesignated former subdivision A 3 g as subdivision A 3 h.

The 2010 amendments.

The 2010 amendment by c. 506 inserted the next-to-last sentence in the first paragraph of subsection D.

The 2011 amendments.

The 2011 amendment by c. 655, in the first paragraph in subsection A, in the first sentence, added the clause (i) designation and clause (ii), and added the third sentence; added subdivisions A 4 and A 5; and in the first paragraph in subsection C, in the first sentence, inserted “or separate or marital debt” and added “or owed,” and in the second sentence, inserted “jointly owed marital debt.”

The 2012 amendments.

The 2012 amendment by c. 144 deleted “of this section” following “subsection H” in subdivision A 3 c; deleted “of this section” following “Subdivisions A 3 d, e and f” in the first sentence of subdivision A 3 h; and added subsection L.

The 2016 amendments.

The 2016 amendment by c. 559, in subsection C, inserted “However, upon a finding that separate property of one party is in the possession or control of the other party, the court may order that the property be transferred to the party whose separate property it is.”

The 2017 amendments.

The 2017 amendment by c. 797, in subdivision G 2, inserted “except to the extent permitted by § 20-107.1:1 .”

The 2019 amendments.

The 2019 amendment by c. 304 added the last sentence in subdivision G 1; and made stylistic changes.

Law Review.

As to 1988 legislative changes in equitable distribution, 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 survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

For article, “Virginia’s Equitable Distribution Law: An Owner’s Manual,” see 46 Wash. & Lee L. Rev. 807 (1989).

For survey of Virginia property law for the year 1989-1990, see 24 U. Rich. L. Rev. 725 (1990).

For comment, “Virginia’s Equitable Distribution Law: Active Appreciation and the Source of Funds Rule,” see 47 Wash. & Lee L. Rev. 879 (1990).

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

For an article, “A Dead Language: Divorce Law and Practice Before No-Fault,” see 86 Va. L. Rev. 1497 (2000).

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

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

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

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

For 2006 survey article, “Wills, Trusts, and Estates,” see 41 U. Rich. L. Rev. 321 (2006).

For 2007 annual survey article, “Family and Juvenile Law,” see 42 U. Rich. L. Rev. 417 (2007).

For essay, “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

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

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

For essay, “The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth,” see 50 U. Rich. L. Rev. 217 (2015).

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 11 Trials at Common Law. § 11.05 Motions at Trial. Bryson.

Family Law and Practice (Matthew Bender). Rutkin.

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

Valuation and Distribution of Marital Property (Matthew Bender). Rutkin, Troyan, and Blumberg.

Virginia Forms (Matthew Bender). No. 2-1007 Scheduling Order for Divorce Trial.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 35, 37, 40, 49, 50, 52, 53, 60, 63, 64, 65, 68, 72, 79.

CASE NOTES

Analysis

I. General Consideration.
II. Jurisdiction.
III. Agreements Between Parties.
IV. Equitable Distribution.

H. Considerations on Appeal and Remand.

I.General Consideration.

Editor’s note.

Many of the cases annotated below were decided under prior law.

The distribution anticipated by the General Assembly is predicated upon the philosophy that marriage represents an economic partnership requiring that upon dissolution each partner should receive a fair proportion of the property accumulated during marriage, including property titled in the other party’s name but which has appreciated in value due to the nonmonetary efforts of the nonowner spouse. Roane v. Roane, 12 Va. App. 989, 407 S.E.2d 698, 8 Va. Law Rep. 330, 1991 Va. App. LEXIS 187 (1991).

The equitable distribution statute is intended to recognize a marriage as a partnership and to provide a means to equally divide the wealth accumulated during and by that marriage. Dotson v. Dotson, 24 Va. App. 36, 24 Va. App. 40, 480 S.E.2d 131, 1997 Va. App. LEXIS 3 (1997).

Former § 20-107 compared. —

Although former § 20-107 was worded somewhat differently than subsection A of this section, the words “upon decreeing a divorce” were not interpreted to mandate a simultaneous divorce and property decree. These words should not be given a more restrictive interpretation under subsection A of this section. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Construction with prior law. —

Tracing under the hybrid property provisions of subdivisions A 1 (iv) and A 3 of this section does not require, as did prior law, that a party segregate property claimed to be separate. Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135, 1997 Va. App. LEXIS 763 (1997).

Construction with other law. —

Appeals court rejected a husband’s six claims of error from a QDRO awarding a wife the gains earned on the portion of his retirement account distributed to her in the couple’s divorce decree, as the husband failed to comply with Va. Sup. Ct. R. 5A:20(c) and (e), and despite his pro se status, he was required to comply with the rules of court. Blythe v. Blythe, 2006 Va. App. LEXIS 392 (Va. Ct. App. Aug. 22, 2006).

Authority to appoint special commission. —

Trial court had authority to appoint a special commissioner to transfer real property in divorce action where husband refused to comply with court order to transfer property, under subdivision K 3 of § 20-107.3 .Hart v. Hart, 2003 Va. App. LEXIS 26 (Va. Ct. App. Jan. 28, 2003).

Trial court did not err in appointing an ex-wife’s counsel as special commissioner in regard to the sale of the parties’ house, as the ex-husband unreasonably refused to cooperate with the sale of the house; as a result of the husband’s conduct, the trial court ordered that the wife’s counsel was authorized to provide the ex-husband’s signature wherever required to effectuate the sale of the house. This order did not appoint the commissioner, who was authorized only to provide husband’s signature, to act in a judicial capacity; the execution of the necessary documents to complete the sale pursuant to the court’s orders were purely ministerial acts, rather than alterations in the substantive terms of the court orders. Robinson v. Robinson, 2005 Va. App. LEXIS 524 (Va. Ct. App. Dec. 20, 2005).

Commissioner misapplied Brandenburg formula. —

Although commissioner properly used the formula established in Brandenburg v. Brandenburg to trace and determine the value of the marital and separate property components of couple’s hybrid property, commissioner erred when he calculated the value of husband’s separate property in home and promissory note by including the amount husband paid for the improvements rather than the value which the improvements added to the property. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Wife traced inheritance money in bond fund. —

Trial court’s approval of commissioner’s finding that wife failed to trace inheritance money deposited into bond fund was plainly wrong where wife identified her portion of the bond account and directly traced that portion to her deposit of separate property in the form of inheritance proceeds, and where evidence established that no withdrawals were made from the account after wife deposited the inheritance money. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Valid release. —

Where a valid release has been executed and made part of a decree, a party to that decree may not reopen it for modification based upon a change in the law. Himes v. Himes, 12 Va. App. 966, 407 S.E.2d 694, 8 Va. Law Rep. 303, 1991 Va. App. LEXIS 184 (1991).

Payment of debts of parties. —

Subsection C of this section authorized trial court to order payment to husband’s mother from proceeds of sale of marital residence, as repayment of loan made by husband’s mother to parties. Breckenridge v. Breckenridge, 1999 Va. App. LEXIS 324 (Va. Ct. App. June 8, 1999).

Decree. —

In all divorce cases in which equitable distribution issues are presented, fashioning the decree is left largely to the discretion of the trial court as empowered and instructed by this section. McClanahan v. McClanahan, 19 Va. App. 399, 451 S.E.2d 691, 1994 Va. App. LEXIS 720 (1994).

Modification of equitable distribution decree. —

This section did not authorize trial court to revisit issue of equitable distribution after entry of final divorce decree. Cossu v. Cossu, 1999 Va. App. LEXIS 357 (Va. Ct. App. June 15, 1999).

Consideration of statutory factors not required where a valid separation agreement exists. —

The parties entered into a valid separation agreement which specified the distribution of the property, and therefore, the trial court was not required to consider the statutory factors in making the distribution. Dritselis v. Dritselis, 2005 Va. App. LEXIS 451 (Va. Ct. App. Nov. 8, 2005).

Adjusting the settlement agreement. —

Husband and wife placed a dollar value on the amount each would receive from their marital accounts when they were divorced in 1993, and their failure to comply with time limits allowed by their property settlement agreement for transferring property did not permit the trial court to adjust those values. McManus v. Neuschulz, 2002 Va. App. LEXIS 695 (Va. Ct. App. Nov. 19, 2002).

Bifurcated proceedings. —

Bifurcated proceeding was allowed in the exercise of a trial court’s discretion and where the wife presented no evidence or argument at the ore tenus hearing, she was not entitled to the bifurcated hearing. Case v. Case, 2004 Va. App. LEXIS 244 (Va. Ct. App. May 25, 2004).

Circuit court did not abuse its discretion in granting a husband’s motion to bifurcate the divorce matter from the remaining issues because the record supported its judgment that bifurcation was clearly necessary; the circuit court made an express finding that bifurcation was “clearly necessary” and referenced specific factors, including the husband’s declining health and delays by the parties. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

Contempt order proper. —

Circuit court did not err by holding a former husband in contempt of court for the former husband’s willful failure to comply with a court order and the payment obligations set forth in the parties’ property settlement agreement that was incorporated into the parties’ final decree of divorce because the court was entitled to enforce the obligations through its contempt power. Kahn v. McNicholas, 67 Va. App. 215, 795 S.E.2d 485, 2017 Va. App. LEXIS 19 (2017).

Finality was not imposed on a circuit court’s final order of divorce after twenty-one days because the circuit court possessed, as provided by statute, the jurisdiction to enforce its final order of divorce and to issue and enforce further orders with respect to the parties’ divorce. Thus, the circuit court had jurisdiction to find that the former wife was in contempt for failing to obey the court’s subsequent orders after the divorce that the wife pay certain sums to the former husband. Khakee v. Rodenberger, 2019 Va. App. LEXIS 195 (Va. Ct. App. Aug. 27, 2019).

Evidence was sufficient to find a husband in willful contempt because due to his noncompliance with the parties’ property settlement and support agreement, condominiums were sold at foreclosure, resulting in reduced proceeds; the circuit court acted within its discretion to impose a sanction to compensate the wife for the financial loss that resulted from the husband’s noncompliance with his obligations to pay the condominium mortgages. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

For cases decided under former law, see Almond v. Almond, 25 Va. (4 Rand.) 662, 1826 Va. LEXIS 82 (1826); Gum v. Gum, 122 Va. 32 , 94 S.E. 177 , 1917 Va. LEXIS 81 (1917); Barnes v. American Fertilizer Co., 144 Va. 692 , 130 S.E. 902 , 1925 Va. LEXIS 228 (1925); Bray v. Landergren, 161 Va. 699 , 172 S.E. 252 , 1934 Va. LEXIS 295 (1934); Watson v. Mose, 165 Va. 661 , 183 S.E. 428 , 1936 Va. LEXIS 251 (1936); Wilson v. Wilson, 195 Va. 1060 , 81 S.E.2d 605, 1954 Va. LEXIS 185 (1954); Smith v. Smith, 200 Va. 77 , 104 S.E.2d 17, 1958 Va. LEXIS 161 (1958); Guy v. Guy, 210 Va. 536 , 172 S.E.2d 735, 1970 Va. LEXIS 159 (1970); Jackson v. Jackson, 211 Va. 718 , 180 S.E.2d 500, 1971 Va. LEXIS 250 (1971); Watkins v. Watkins, 220 Va. 1051 , 265 S.E.2d 750, 1980 Va. LEXIS 200 (1980).

Divorce must be granted first. —

Circuit court could not have distributed the parties’ assets or awarded spousal support as it did in this case without first granting the parties a divorce. Belle v. Belle, 2016 Va. App. LEXIS 15 (Va. Ct. App. Jan. 19, 2016).

II.Jurisdiction.

Waiver of objection to trial court’s jurisdiction. —

Even if the jurisdictional prerequisites of § 20-107.3 were not met, a wife’s failure to object on those grounds in the trial court effectively waived any such alleged defects because the wife had the opportunity to object to the trial court’s jurisdiction over equitable distribution on the grounds that the statutory prerequisites of subsection A or J of § 20-107.3 were not met, and she failed to do so. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Under the supreme court’s jurisprudence distinguishing subject matter jurisdiction from the statutory prerequisites to the trial court’s exercise of jurisdiction in a particular case, the statutory prerequisites of subsection A of § 20-107.3 can be waived; if a party does not object to the trial court’s authority to make an equitable distribution award based on an alleged failure to satisfy the prerequisites of subsection A of § 20-107.3 in a particular divorce case, that party has waived the right to raise that objection on appeal. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Continuing jurisdiction. —

Subsection K of this section provides for the continuing jurisdiction of a trial court to enter orders necessary to effectuate and enforce any order entered pursuant to the statute. Such orders include pension, profit sharing, deferred compensation, and retirement benefits for the purpose of establishing or maintaining the order as a Qualified Domestic Relations Order (QDRO). Hence, the trial judge did not err in entering orders necessary to effectuate and enforce the final divorce decree, which affirmed, ratified, and incorporated the parties’ agreement specifying the division of the husband’s retirement assets and IRA account. The entry of these orders involved purely ministerial acts related to the QDRO. Myers v. Myers, 2001 Va. App. LEXIS 533 (Va. Ct. App. Oct. 2, 2001).

When the trial judge failed to make the finding that the action was clearly necessary, as required by § 20-107.3 , and erroneously ruled to retain equitable distribution jurisdiction after granting a final divorce, the ruling was voidable and subject to challenge on direct appeal. Because the husband failed to appeal, the judge validly retained jurisdiction to adjudicate equitable distribution. Spriggs v. Spriggs, 43 Va. App. 510, 600 S.E.2d 136, 2004 Va. App. LEXIS 373 (2004).

Where a final divorce decree provided that the wife would be entitled to 50% of the marital share of the husband’s pension, a Qualified Domestic Relations Order (QDRO) was properly entered after the husband’s retirement, because the QDRO did not create substantive rights, but only effectuated the express intent of the final decree. Turner v. Turner, 47 Va. App. 76, 622 S.E.2d 263, 2005 Va. App. LEXIS 469 (2005).

Trial court retained authority under § 20-107.3 to enter an order that directed the wife to reimburse the husband for the overpayment she received from the husband’s thrift savings plan, as such an order was necessary to effectuate the parties’ intent as expressed in the final decree of divorce. Overcash v. Overcash, 2006 Va. App. LEXIS 36 (Va. Ct. App. Jan. 24, 2006).

Trial court did not exceed its jurisdiction when it interpreted a qualified domestic relations order as the court had been asked only to interpret and clarify the meaning of its language in its final order, not to change the language of the agreement that order had incorporated. So long as a trial court’s new qualified domestic relations order faithfully interprets and applies its own previous order, it is fully within the court’s jurisdiction. Tobin v. Tobin, 2006 Va. App. LEXIS 231 (Va. Ct. App. Apr. 18, 2006).

Circuit court was permitted to enforce the parties’ obligations under a separation agreement at the contempt hearing because it had the authority to interpret the final divorce decree, including the incorporated agreement, to determine whether the parties’ obligations had been met and to make any additional orders necessary to effectuate and enforce its terms. Monds v. Monds, 68 Va. App. 674, 813 S.E.2d 1, 2018 Va. App. LEXIS 124 (2018).

Because entering a new Approved Domestic Relations Order listing the Virginia Retirement System as the plan administrator was a “purely ministerial act” permitted by subdivision K 4, the circuit court did not violate Va. Sup. Ct. R. 1:1, and it had jurisdiction to enter the Approved Domestic Relations Order distributing the husband’s pension between the parties. Jackson v. Jackson, 2019 Va. App. LEXIS 301 (Va. Ct. App. Dec. 17, 2019).

Jurisdiction to adjudicate distribution not retained. —

Although wife invoked this section, the court found nothing in the statute giving the circuit court jurisdiction to adjudicate wife’s claim to equitable distribution. The circuit court awarded the divorce and did not retain jurisdiction in the divorce decree to adjudicate equitable distribution after entry of that decree; thus the circuit court had no jurisdiction to consider wife’s filing under the provisions of this section. Toomey v. Toomey, 251 Va. 168 , 465 S.E.2d 838, 1996 Va. LEXIS 3 (1996).

Wife failed to protect her interests in having the circuit court adjudicate her equitable distribution rights. Under this section, wife could have requested the circuit court to adjudicate her rights prior to entering the divorce decree; she also could have moved the circuit court to retain its jurisdiction and adjudicate those rights after entering the divorce decree. She did neither. Wife’s failure to protect her interests does not substantively adjudicate her equitable distribution rights, but does bar her from asserting those rights in a Virginia court. Toomey v. Toomey, 251 Va. 168 , 465 S.E.2d 838, 1996 Va. LEXIS 3 (1996).

Where the language in a divorce decree granted the court jurisdiction to perform an equitable distribution of marital assets up until a date certain, the court was necessarily saying that after that date jurisdiction would no longer exist, and the court properly dismissed the case after the date specified. Patel v. Patel, 33 Va. App. 776, 537 S.E.2d 11, 2000 Va. App. LEXIS 755 (2000).

Because the wife’s request sought a substantive change to the distribution of the husband’s pension benefit, it fell outside the scope of the court’s jurisdiction as expanded by subdivision K 4 of § 20-107.3 .Jackson v. Jackson, 298 Va. 132 , 835 S.E.2d 68, 2019 Va. LEXIS 149 (2019).

Because a court has no need of the jurisdiction extended by the statute to modify an order for a limited purpose during the 21-day period within which it has jurisdiction to modify it for any purpose, the General Assembly did not intend subdivision K 4 of § 20-107.3 to apply during the 21-day period. Jackson v. Jackson, 298 Va. 132 , 835 S.E.2d 68, 2019 Va. LEXIS 149 (2019).

Jurisdiction to amend final decree. —

A court retained jurisdiction under this section to issue a nunc pro tunc order revising the amended final decree to conform with the substantive decision expressed in the decree that the wife receive half of the husband’s entire pension benefits; this modification was not a substantive modification in that it did not modify the percentage or amount due the wife but merely adjusted procedural steps to effect the expressed intent of the order. Williams v. Williams, 32 Va. App. 72, 526 S.E.2d 301, 2000 Va. App. LEXIS 221 (2000).

Trial court’s order was void ab initio to the extent that it awarded a former spouse a personal judgment against the other former spouse. Because the order was a substantive modification of the court’s final decree of divorce, that order did not fall within the subsection K of § 20-107.3 limited exception to Va. Sup. Ct. R. 1:1 permitting a circuit court to enter an order more than twenty-one days after entry of the final divorce decree for purposes of effectuating or enforcing that decree. Weedon v. Weedon, 2014 Va. App. LEXIS 166 (Va. Ct. App. May 6, 2014).

Limited jurisdiction to modify in subdivision K 4. —

Subdivision K 4 of § 20-107.3 permits a circuit court to modify a pension distribution order after the 21-day period has elapsed, but only for the limited purposes stated in the statutory language. It does not extend jurisdiction beyond the 21-day period for other purposes, such as to adjust the division of property if circumstances subsequent to the entry of the decree have changed in ways the parties failed to foresee and bring to the court’s attention before the decree or order was entered, or before the periods for modification or appeal elapsed. Jackson v. Jackson, 298 Va. 132 , 835 S.E.2d 68, 2019 Va. LEXIS 149 (2019).

Under Va. Sup. Ct. R. 1:1, a court may modify an order within 21 days for any purpose, without limitation. That includes modifying one for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order. By contrast, after the 21-day period elapses, courts have no authority to disturb their prior rulings, unless the General Assembly has created a statutory exception to the policy of finality implemented by Rule 1:1. Subdivision K 4 of § 20-107.3 is such an exception. Jackson v. Jackson, 298 Va. 132 , 835 S.E.2d 68, 2019 Va. LEXIS 149 (2019).

Circuit court properly reformed the parties’ separation and property settlement agreement, and awarded the wife arrearages from the husband’s pension and attorney fees because the plain language of the agreement provided a basis to order the retroactive payments, the wife’s attempt to effectuate her vested right under the agreement was plainly an enforcement action to recover the funds which were misappropriated by fault of the husband, and the wife prevailed on the enforcement action. Ferry v. Beard, 2020 Va. App. LEXIS 31 (Va. Ct. App. Feb. 4, 2020).

The 1986 amendment was intended to limit power and jurisdiction of courts. —

The General Assembly, when it amended this section in 1986, intended to limit the power and jurisdiction of divorce courts and to prohibit them from separately adjudicating divorce and equitable distribution except when two prerequisites which the legislature imposed had been met; the General Assembly’s use of the phrase “retain jurisdiction” was a purposeful decision to limit the court’s power. Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 404 S.E.2d 388, 7 Va. Law Rep. 2513, 1991 Va. App. LEXIS 86 (1991).

Both parties’ request for equitable distribution did not satisfy requirement of 1986 amendment. —

The fact that both parties requested equitable distribution in their pleadings or “contemplated” that the issue would be considered further did not satisfy the requirement of the 1986 amendment to this section that in order to enter a final decree of divorce and retain jurisdiction to decide the equitable distribution issues, the parties must jointly make a motion for the court to do so. Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 404 S.E.2d 388, 7 Va. Law Rep. 2513, 1991 Va. App. LEXIS 86 (1991).

Two prerequisites must be satisfied before court can make an award of equitable distribution: (1) the court must decree a divorce; and (2) must also have before it a request by either party to make an award of equitable distribution. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Adequacy of request. —

The trial erred in finding that it lacked jurisdiction over a wife’s claim for equitable distribution of marital property; the wife made an adequate request for equitable distribution as required by § 20-107.3 , because while the request was not artfully stated, the wife’s answer in the divorce action nevertheless sufficiently made known to the trial court the wife’s desire for equitable distribution. Smith v. Smith, 38 Va. App. 113, 562 S.E.2d 329, 2002 Va. App. LEXIS 229 (2002).

Reservation of issue. —

Party must request equitable distribution. —

Under this section the court is not empowered to make an award of equitable distribution unless requested to do so by either party. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Wife’s prayer that the chancellor “determine property rights” was sufficient to invoke the court’s jurisdiction under this section to make a monetary award as a component of a system of equitable distribution. Lowe v. Lowe, 233 Va. 431 , 357 S.E.2d 31, 3 Va. Law Rep. 2686, 1987 Va. LEXIS 211 (1987).

Reservation of jurisdiction within court’s discretion. —

The court’s decision to reserve jurisdiction over equitable distribution, when granting a final decree of divorce, is one within its sound discretion. As with any exercise of discretionary authority, the court’s decision in this regard may be reviewed for abuse. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

A trial court has the power to reserve in a decree of divorce the authority to make a monetary award under this section. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

Divorce court has jurisdiction to make an equitable distribution of the parties’ marital property although the distribution was made some time after the entry of the final divorce decree granting a divorce to a wife and although the reservation of the equitable distribution was erroneous because the divorce court did not make an express finding that such a reservation was clearly necessary, where the final divorce decree expressly reserved the equitable distribution, and where the husband did not appeal the final decree. Porter v. Martin, 2004 Va. App. LEXIS 630 (Va. Ct. App. Dec. 21, 2004).

Plain reading of the statute makes clear that upon motion and when it is clearly necessary to do so, the General Assembly intended to provide a circuit court with discretion to effectively finalize the issue of divorce from the bond of matrimony independent of ancillary issues, such as equitable distribution and support, and adjudicate them separately, transforming one case into two; upon the proper exercise of discretion, the order granting the divorce becomes final twenty-one days after entry. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

No bifurcation of equitable distribution and divorce proceedings absent showing of necessity. —

Trial court was forbidden to retain jurisdiction to make an equitable distribution award after divorce has been granted without first finding a clear necessity therefor. Christensen v. Christensen, 26 Va. App. 651, 496 S.E.2d 132, 1998 Va. App. LEXIS 125 (1998).

Divorce decree not void or voidable on account of improper bifurcation. —

Even though trial court improperly retained jurisdiction to make equitable distribution award without first finding a clear necessity therefor, the decree dissolving the bond of matrimony was not void or voidable as a result. Christensen v. Christensen, 26 Va. App. 651, 496 S.E.2d 132, 1998 Va. App. LEXIS 125 (1998).

The court properly refused to bifurcate a divorce proceeding and to grant a divorce while retaining jurisdiction to adjudicate equitable distribution, notwithstanding that the husband wanted an immediate divorce so that he could use the “single” filing status on his federal income tax return, where the husband was unable to provide the trial judge with assurance that the wife’s interest in the marital share of the husband’s pension would not be adversely affected if the trial judge granted the divorce and the husband died prior to equitable distribution. Clark v. Clark, 1998 Va. App. LEXIS 493 (Va. Ct. App. Sept. 15, 1998).

Court must explicitly reserve jurisdiction. —

The trial court did not err in granting a final divorce while retaining the cause on its docket for determination of the parties’ property rights at a time more than twenty-one days after entry of the divorce decree. A trial court can properly retain jurisdiction to determine property rights after entry of a final divorce so long as the court clearly and explicitly reserved jurisdiction for that purpose. Atkins v. Atkins, No. 0063-85 (Ct. of Appeals Jan. 8, 1986).

Because neither party requested the trial court to retain jurisdiction over the distribution of their property, the husband failed to timely request an equitable distribution hearing during the 21-day period following entry of the decree during which the trial court retained jurisdiction over the case and, the trial court properly held that it lacked jurisdiction to reopen the divorce proceedings in order to equitably distribute the parties’ marital property, the judgment of the trial court was summarily affirmed. Miller v. Miller, 2007 Va. App. LEXIS 212 (Va. Ct. App. May 22, 2007).

Final decree which reserved jurisdiction violated section. —

Where husband’s counsel stated at hearing that the husband was not inclined to enter into a joint motion for reservation of equitable distribution and objected to entry of the proposed final decree, the trial court’s entry of a final decree which reserved equitable distribution violated the mandates of this section; both parties did not move the court to reserve jurisdiction as to equitable distribution. Dedes v. Dedes, No. 0703-89-2 (Ct. of Appeals Aug. 21, 1990).

The trial court erred by granting the husband a final divorce and attempting to retain jurisdiction to later adjudicate the equitable distribution issues without having a joint motion of the parties and making a finding of clear necessity due to the complexity of the property issues. Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Statute permits appeal from final order of divorce following bifurcation. —

While the mere fact that an order labeled as “final” is not dispositive of its finality, the plain, obvious, and rational meaning of the statutory language “final decree of divorce” clearly suggests a statutory classification of finality for the purposes of appeal. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

Court order properly bifurcating a divorce proceeding is a final order with respect to the divorce issue, thereby falling within the appellate jurisdiction of the court of appeals twenty-one days after its entry; however, the statute also contemplates that following such bifurcation, the circuit court retains jurisdiction over all other remaining matters explicitly reserved for future adjudication. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

Use of the phrase “final decree of divorce” by the General Assembly to reference a circuit court order reserving jurisdiction to adjudicate equitable matters at some future date, clearly suggests that, following bifurcation of the divorce from the remaining matters, the circuit court loses jurisdiction over the divorce decree twenty-one days from the entry of the order; in such a case, the statute clearly permits an appeal to the court of appeals from such a final order of divorce. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

Court’s retained authority pursuant to subsection K did not affect decree finality. —

Trial judge did not err in finding that divorce decree was a final order. Although the trial judge retained authority pursuant to subsection K to enter further orders to implement the sale of the marital residence, this authority did not affect the finality of the decree as to matters resolved in the decree and to which the parties preserved no objections. Galligan v. Galligan, No. 1406-97-4 (Ct. of Appeals Dec. 9, 1997).

Final divorce decree remained subject to Va. Sup. Ct. R. 1:1 and was not subject to the trial court’s continuing authority to enter additional orders necessary to enforce the decree’s incorporation by reference of a settlement agreement as the disputed provision in the settlement agreement applied only to assets owned by the parties subject to equitable distribution; an account receivable owned by a company in which the husband had a 50 percent interest was not subject to equitable distribution, and the account receivable could not be an undisclosed asset or subject of an equitable distribution hearing in a reopened divorce case. Cabral v. Cabral, 62 Va. App. 600, 751 S.E.2d 4, 2013 Va. App. LEXIS 359 (2013).

Continuing jurisdiction found. —

Trial court had jurisdiction to reinstate a divorce case in order to effectuate its prior orders as three years after the final decree was entered, the parties had not sold the marital realty, and the terms in the final decree did not comply with the terms included in an opinion letter; the trial court had jurisdiction as the issues contested by a husband relating to set-offs and the distribution of the sales proceeds from the properties were necessary determinations to effectuate the original order, and the factors responsible for the additional findings included the length of time that the properties remained unlisted and unsold, and the husband’s lack of cooperation in expediting the sales of the property. Brown v. Brown, 2007 Va. App. LEXIS 34 (Va. Ct. App. Feb. 6, 2007).

Post-decree order to sell a marital home at a public auction was proper because a trial court retained jurisdiction to enforce a divorce decree’s provision for the sale of a marital home. Boudwin v. Catania, 2008 Va. App. LEXIS 48 (Va. Ct. App. Jan. 29, 2008).

Continuing jurisdiction after death of a party. —

In a divorce action, the trial court erred in concluding that it had lost jurisdiction after the former husband died, because, while the status of the marriage was no longer at issue, and therefore former husband’s death had no effect on the trial court’s jurisdiction, equity demanded that the trial court fully adjudicate the matter and make the determination of former wife’s equitable interest in the marital property pursuant to this section. Brown v. Brown, 69 Va. App. 462, 820 S.E.2d 384, 2018 Va. App. LEXIS 314 (2018).

Continuing jurisdiction not found. —

Trial court’s order maintaining a divorce case on its docket for such further action as might be necessary, after granting a final divorce, was insufficient to retain jurisdiction to decide questions of equitable distribution, under § 20-107.3 A, because it did not find that such a bifurcation of jurisdiction was “clearly necessary.” Nourdeen v. Nourdeen, 2003 Va. App. LEXIS 223 (Va. Ct. App. Apr. 15, 2003).

Personal jurisdiction. —

Husband was properly served with a show cause rule because he was a nonresident, and thus, the Virginia long-arm statute applied, and substituted service of the show cause rule was valid; the long-arm statute did not require personal service on the nonresident, and substituted service in Washington was sufficient to give the Virginia court personal jurisdiction over the husband and satisfy the requirement that a show cause rule be “served on the person.” Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

Foreign divorce decrees — Filing triggers jurisdiction. —

Despite use of the word “upon” in the provision as to filing of a certified copy of a decree obtained without the Commonwealth, it is clear that a court cannot make an immediate award of equitable distribution at the moment a foreign divorce decree is filed. Before such an award can be made, evidence must be taken and reviewed by the court. The filing of a foreign divorce decree is, therefore, the event which triggers the court’s equitable distribution jurisdiction. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Resulting trusts. —

When considering an equitable distribution an award, it was error for a trial court to consider whether to impose a resulting trust in favor of a husband because § 20-107.3 did not give the court such authority. Anthony v. Skolnick-Lozano, 63 Va. App. 76, 754 S.E.2d 549, 2014 Va. App. LEXIS 61 (2014).

Because the jurisdiction of a court in equity is entirely statutory and limited in divorce matters, in the context of an equitable distribution proceeding, a trial court is limited to application of equitable distribution principles and does not have the authority to declare a resulting trust or, along with such a trust, that a party is a beneficial owner of one half of property. Anthony v. Skolnick-Lozano, 63 Va. App. 76, 754 S.E.2d 549, 2014 Va. App. LEXIS 61 (2014).

Clarification of previous order. —

Trial court erred in refusing to clarify and modify a previous order regarding a timeshare because a husband sought nothing more than the entry of an order that was consistent with the trial court’s original order, the trial court had previously ruled that the wife was to pay the indebtedness in exchange for receiving the property, the amount of a credit card debt had to be determined to clarify the wife’s obligation under the terms of the final decree, and the trial court was statutorily authorized to enter an order clarifying its previous order, which was its intention before it ruled that it did not have jurisdiction. Pope v. Pope, 2015 Va. App. LEXIS 90 (Va. Ct. App. Mar. 24, 2015).

Prohibition writ denied. —

Wife asserted in her complaint for divorce that the partnership was marital property and she asked for the right to control and manage the partnership; since the circuit court had subject matter jurisdiction over the divorce proceedings, including the power to determine the ownership and value of all property, the writ of prohibition did not lie. The circuit court had already entered two orders directing husband, not the partnership, to undertake certain actions, and prohibition did not lie to undo those orders. Hoffman P'ship, LLP v. Circuit Court, 72 Va. App. 206, 843 S.E.2d 396, 2020 Va. App. LEXIS 175 (2020).

III.Agreements Between Parties.

Equitable distribution must be consistent with agreement as to division of property. —

When this section and § 20-109 are read together, it is apparent that the legislature intended to impose the same restrictions on a court in making an equitable distribution award as exist in making awards of support and maintenance. Specifically, to the extent that the parties have already stipulated to a particular disposition of their property, the court may not decree an equitable distribution award that is inconsistent with that contract. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Error to admit parol evidence unless agreement is ambiguous. —

Trial court erred in admitting parol evidence and in awarding a wife 50 percent of the marital portion of a husband’s civil service retirement benefits as they were received by the husband, since the property settlement agreement (PSA) was not ambiguous since its language paralleled a provision that divided another pension on the date of separation; further, the trial court erred in treating the words “value” and “amount” as used in the PSA as meaningless by ordering a deferred distribution and in entering a Qualified Domestic Relations Order that was inconsistent with the substantive provisions of the divorce decree, which incorporated the PSA. Foley v. Foley, 2005 Va. App. LEXIS 510 (Va. Ct. App. Dec. 20, 2005).

Trial court erred in finding the term “martial share” in the parties’ property settlement agreement was ambiguous and in hearing parol evidence on the term’s intended meaning because the words of the parties’ entire agreement unambiguously expressed an intention to invoke the statutory definition of “marital share.” Sabio v. Sabio, 2015 Va. App. LEXIS 39 (Va. Ct. App. Feb. 10, 2015).

Settlement agreement’s provision concerning division of equity in former marital home held unambiguous. —

As a former husband complied with a provision in an unambiguous property settlement agreement that allowed him to deduct the costs of “all mortgages” on the former marital home before paying his former wife her half of the net proceeds from its sale, and the term “all mortgages” was not surplusage, the trial court properly found that he complied with the agreement. Fisher v. Fisher, 2006 Va. App. LEXIS 148 (Va. Ct. App. Apr. 11, 2006).

Error not to enforce parties’ allocation of debt. —

Post-marital transfer of marital debt from one financial institution to another did not change its classification. Therefore, under the parties’ property settlement agreement, the husband remained solely responsible for that debt following the transfer. The record did not definitively establish that the wife intended to accept half of the responsibility for the new loan, and therefore the wife did not relieve the husband from his liability through novation. Price v. Peek, 72 Va. App. 640, 851 S.E.2d 749, 2020 Va. App. LEXIS 309 (2020).

Separation agreement may govern remedies available to parties. —

Where a husband and wife had entered into a marital property settlement agreement which had been ratified and incorporated into the final divorce decree, and where such agreement expressly provided that the parties waived the right to have the court execute the remedy provided by this section, the wife’s petition requesting the appointment of a special commissioner under subsection K to conduct a sale of property specified in the agreement so the husband could satisfy certain related terms with the resulting proceeds was properly denied; to the exclusion of relief otherwise available, both the husband and the wife had expressly looked to the agreement, either in contract or as a provision of the decree, to safeguard their respective rights and thus were barred from pursuing the statutory remedy. Campbell v. Campbell, 32 Va. App. 351, 528 S.E.2d 145, 2000 Va. App. LEXIS 327 (2000).

Interpretation of property settlement agreement. —

Trial court’s ruling was not contrary to subdivision K 4 because its interpretation was consistent with, not contrary to, the property settlement agreement. Jones v. Jones, 2019 Va. App. LEXIS 151 (Va. Ct. App. July 2, 2019).

Circuit court erred in its interpretation of a marital settlement agreement regarding the apportionment, taxation, and payment of a husband’s retirement benefit payments because it did not reduce the wife’s share by the taxes owed on the payment by the husband. Woloshin v. Woloshin, 2020 Va. App. LEXIS 86 (Va. Ct. App. Mar. 31, 2020).

Circuit court did not err in interpreting a marital settlement agreement to include the extra three years of a husband’s employment as a partner in his firm in calculating retirement benefit payments owed to the wife because the fraction of the total retirement benefit payments that made up the marital share was clearly defined by the settlement agreement. Woloshin v. Woloshin, 2020 Va. App. LEXIS 86 (Va. Ct. App. Mar. 31, 2020).

Separation agreement followed by reconciliation. —

By validating all fully executed portions of the separation agreement, where the parties had a separation agreement and thereafter reconcile, the legal title to property is unaffected but the parties are free to voluntarily reverse executed transfers. Yeich v. Yeich, 11 Va. App. 509, 399 S.E.2d 170, 7 Va. Law Rep. 1148, 1990 Va. App. LEXIS 229 (1990).

Where the parties to a separation agreement thereafter reconcile their differences and resume the marital relationship, the separation agreement is terminated so far as executory obligations thereunder are concerned, but the separation agreement is not abrogated so far as executed provisions of the agreement are concerned; the parties, however, may enter into a valid reconciliation agreement providing otherwise. Yeich v. Yeich, 11 Va. App. 509, 399 S.E.2d 170, 7 Va. Law Rep. 1148, 1990 Va. App. LEXIS 229 (1990).

Marital agreement. —

Trial court erred in concluding that the parties’ marital agreement obligated the husband to pay the wife $100,000 because the wife had no interest in the husband’s business assets to waive or to relinquish pursuant to § 20-107.3 at the time of the parties’ separation. Clemente v. Clemente, 2006 Va. App. LEXIS 337 (Va. Ct. App. July 25, 2006).

Because the parties created their own contractual requirements and responsibilities under the martial settlement agreement they signed, the settlement agreement governed the case. Woloshin v. Woloshin, 2020 Va. App. LEXIS 86 (Va. Ct. App. Mar. 31, 2020).

Court lacked power to add equitable distribution provision to 1977 agreement. —

Where credible evidence supported the trial court’s finding that wife entered into agreement freely and voluntarily, upon full financial disclosure, and with knowledge of her rights, the court was not empowered to alter the agreement, signed in 1977, to include equitable distribution as found within current Virginia statutes. Rogers v. Yourshaw, 18 Va. App. 816, 448 S.E.2d 884, 11 Va. Law Rep. 126, 1994 Va. App. LEXIS 557 (1994).

Prenuptial agreement rebutted presumption. —

Trial court erred in, sua sponte, refusing to enforce a prenuptial agreement that the parties agreed defeated the presumption that all property acquired during the marriage was marital property, as the trial court’s finding that the agreement was less than clear and used imprecise and conflicting language fell far short of the threshold standard for invalidating a contract for inscrutability. Smith v. Smith, 43 Va. App. 279, 597 S.E.2d 250, 2004 Va. App. LEXIS 270 (2004).

Antenuptial agreement did not change accepted definitions of property. —

Parties’ antenuptial agreement did not change the generally accepted definitions of marital and separate property; regarding property acquired after the marriage, the agreement was not clear and the trial court did not err in finding the agreement inconsistent and needing interpretation. The trial court’s finding that the agreement addressed only assets existing before the marriage was proper. Miller v. Miller, 2007 Va. App. LEXIS 340 (Va. Ct. App. Sept. 11, 2007).

Stipulation. —

Where the parties stipulated that they contributed equally to the acquisition of the marital property, this stipulation served to heighten the importance of addressing all of the factors set forth in this section, but it did not preclude an unequal distribution of the pension; so long as the court considered each factor and that the evidence supported the conclusions reached by the trial court, the award on appeal would not be disturbed merely because it was unequal. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

Trial court erred in disregarding the husband and wife’s valid post-nuptial agreement stating that the wife would sign on a loan for the husband in return for the husband agreeing not to sell the marital residence until after the loan was paid in full, and, instead, ordering the immediate sale of the marital residence so that the parties could pay their debts; statutory authority gave the parties the right to enter into a valid post-nuptial agreement and the trial court was not free to ignore it, but, instead, had to enforce it by its terms. Dielman v. Dielman, 2005 Va. App. LEXIS 279 (Va. Ct. App. July 19, 2005).

In a divorce, it was not error to include the parties’ company that was not valued pursuant to § 20-107.3 in an equitable distribution because the parties agreed at the outset of the proceedings to value the company pursuant to the company’s operating agreement, so a wife’s claim of error amounted to approbation and reprobation. Pascarella v. McCoy, 2011 Va. App. LEXIS 8 (Va. Ct. App. Jan. 11, 2011).

Effect of premarital agreement. —

Premarital agreement did not mutually waive equitable distribution of property that was jointly titled, jointly owned, or voluntarily put by one party in the other party’s name because (1) the provision which specifically discussed the disposition of joint property in the event of a divorce stated the property was to be disposed of as if the agreement had not been executed, exempting such property from the agreement, and applying § 20-107.3 to its distribution, and (2) a contrary interpretation would violate the rules of contract interpretation. Golembiewski v. Golembiewski, 2003 Va. App. LEXIS 507 (Va. Ct. App. Oct. 7, 2003).

In a divorce case, the trial court did not err in awarding an amount of gold coins to the wife because it found that the amount was due under an Iranian premarital agreement, which was a premarital contract under § 20-150 , and, thus, the coins were not marital property subject to equitable distribution under § 20-107.3 .Afghahi v. Ghafoorian, 2010 Va. App. LEXIS 118 (Va. Ct. App. Mar. 30, 2010).

Although the parties’ pre-marital agreement provided that any property acquired to replace certain real estate the husband owned before the marriage would be deemed separated property, as the replacement property was titled in both spouses’ names, it was marital property because jointly owned property was excluded from the agreement’s waiver of marital rights language. Parsons v. Parsons, 2012 Va. App. LEXIS 79 (Va. Ct. App. Mar. 20, 2012).

Trial court erred in granting a wife an equitable distribution award of $135,000 under subdivision A 3 g of § 20-107.3 as the wife had renounced any interest she might have had in the increase in value of the husband’s home in a prenuptial agreement, and had specifically waived any claims for reimbursement; although the wife made $135,000 in contributions to the construction of husband’s home, the prenuptial agreement stated that the home and any increases in its value were the husband’s separate property, and the wife’s claim that her contributions were loans had been rejected. Tsoucalas v. Tsoucalas, 2013 Va. App. LEXIS 144 (Va. Ct. App. May 7, 2013).

Trial court did not err in its interpretation of the premarital agreement regarding the division of the parties’ property where the terms of the agreement provided that property owned before the marriage and property titled solely in one party’s name was separate property, thereby limiting the application of § 20-107.3 , and the trial court considered the factors in § 20-107.3 when it divided the parties’ jointly titled marital property. Thomas v. Thomas, 2016 Va. App. LEXIS 178 (Va. Ct. App. May 31, 2016).

In a divorce action, by permitting counsel for the husband to read a settlement agreement into the record and then agreeing with the terms of that settlement on the record, the wife waived any right to appeal the trial court’s rulings that good cause for a continuance did not exist and that any documents not identified on the witness or exhibit list would not be allowed as exhibits. The wife’s actions and words objectively manifested her intention to end the litigation by entering into this agreement. Giaquinto v. Giaquinto, 2020 Va. App. LEXIS 306 (Va. Ct. App. Dec. 15, 2020).

Effect of release of claims to property rights “hereafter acquired.” —

Where separation agreement, by its express terms, surrendered and released all rights and claims to property rights “hereafter acquired,” the fact that military retirement pension payments, at the time the contract was executed, may not have been considered property and therefore within the contemplation of the contract, the wife was not entitled to any portion of the retirement benefits when the Uniformed Services Former Spouses Protection Act “transformed” husband’s “entitlement” into property because the terms of the contract were sufficiently inclusive to release and surrender claims to personal property “hereafter acquired.” Himes v. Himes, 12 Va. App. 966, 407 S.E.2d 694, 8 Va. Law Rep. 303, 1991 Va. App. LEXIS 184 (1991).

Effect of postnuptial agreement incorporated into decree. —

When parties had entered into postnuptial agreement that incorporated a mediation agreement, and was, in turn, incorporated into divorce decree, issue as to whether wife was entitled to husband’s military retirement benefits was adjudicated; wife was not entitled to retirement benefits when she had agreed to accept survivor’s election plan benefits in postnuptial agreement. Monahan v. Monahan, 2001 Va. App. LEXIS 504 (Va. Ct. App. Sept. 11, 2001).

For discussion of wife executing a waiver of her right to post-retirement survivor benefits as the participant’s spouse under the Retirement Equity Act (REACT) of 1984, Pub. L. No. 98-397, 98 Stat. 1426 (collectively ERISA), see Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Pension award calculation should follow terms of agreement. —

Although it was agreed that payments should be made by the U.S. Navy Finance Center directly to the wife, her share of husband’s pension was clearly fixed by the terms of the agreement and not subject to adjustment by a modification in government disbursement procedures, notwithstanding any attendant difficulties in computation. Because the trial court determined wife’s share of the pension using a method inconsistent with the agreement, the decree was reversed and remanded for a recomputation of her allocation in accordance with its provisions. Frieden v. Pennington, 1995 Va. App. LEXIS 32 (Va. Ct. App. Jan. 10, 1995).

Court not bound to approve, in decree, settlement agreement. —

A divorce court is not bound to approve in its divorce decree a settlement agreement between divorcing parties, and is required to exercise its discretion in adjudicating property, support, and custody issues. Richardson v. Richardson, 10 Va. App. 391, 392 S.E.2d 688, 6 Va. Law Rep. 2436, 1990 Va. App. LEXIS 100 (1990), overruled in part, Flanary v. Milton, 263 Va. 20 , 556 S.E.2d 767, 2002 Va. LEXIS 16 (2002).

Equal division of marital estate and award of lump sum payment to husband was proper where: (1) the husband was in good health, while the wife suffered back pain and could only work part-time; (2) both parties made substantial monetary and nonmonetary contributions to the family; and (3) the primary marital asset awarded to the wife was the marital residence, which had equity of about 75% of its value. Silcox v. Silcox, No. 0938-97-2 (Ct. of Appeals March 3, 1998).

No authority to order party to maintain spouse as beneficiary of insurance policy. —

Trial court erred in finding, based on a husband’s testimony alone, that he agreed to maintain his wife as a beneficiary of his life insurance policy. In the absence of a written agreement, under subdivision G 2 of § 20-107.3 , the trial court was without authority to order the husband to maintain his wife as a beneficiary of his life insurance policy. Moore v. Moore, 2011 Va. App. LEXIS 75 (Va. Ct. App. Mar. 1, 2011).

IV.Equitable Distribution.

A.In General.

Purpose. —

The legislature enacted this section to give the courts power to compensate a spouse for his or her contribution to the acquisition of property obtained during the marriage without regard to title when the marriage is dissolved. Sawyer v. Sawyer, 1 Va. App. 75, 335 S.E.2d 277, 1985 Va. App. LEXIS 65 (1985).

The authority of the divorce courts, applying specifically enumerated factors, to reach an equitable resolution of the issue of the division of the jointly acquired wealth of the spouses during their marriage is in addition to rights of spousal support and is not limited to traditional notions and limitations of title ownership. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

By enacting this section the General Assembly enabled the divorce courts to recognize the contributions made by both parties to the marriage, whether monetary or nonmonetary, when considering division of their property upon the dissolution of a marriage. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

The clear legislative intent embodied in this section is to maintain an appropriate separation between considerations of child or spousal support and considerations of an equitable division of marital wealth. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

The “equitable distribution” statute is intended to recognize a marriage as a partnership and to provide a means to divide equitably the wealth accumulated during and by that partnership based on the monetary and nonmonetary contributions of each spouse. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

When the General Assembly authorized partition in the equitable distribution proceedings, it did so not only to enable the court to effect a change in legal title, but to enable a court to resolve issues based upon facts and findings common to both proceedings in order to avoid inconsistent results from separate proceedings. Anderson v. Anderson, 9 Va. App. 446, 389 S.E.2d 175, 6 Va. Law Rep. 1360, 1990 Va. App. LEXIS 28 (1990).

Restriction on disposition of marital property. —

Trial court’s restriction of the husband’s disposition of marital property solely titled in him was not error under subsection C of § 20-107.3 as the court did not order the property divided or transferred, but merely prohibited him from encumbering or disposing of it until after entry of the final divorce decree, thereby protecting the wife’s marital share of the property. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

Equitable distribution is mandate of section. —

An equitable distribution of the marital wealth is the mandate of this section. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

The equitable distribution statutes do not provide for a presumption of a 50-50 division in every case; instead, the finder of fact must make a distribution based on what is fair and equitable, utilizing the factors specified in subsections G and E of this section. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Effect of 1988 amendment. —

By allowing the trial judge to order a transfer of jointly owned real property, this section, as amended in 1988, takes away completely the right to insist upon retention of ownership of a particular piece of real property; this section may not be applied so as to affect such a substantive right in pending proceedings. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

This section, as amended in 1988, gave the trial judge discretion in a divorce proceeding to order a transfer of the property to one of the parties without first determining whether partition in kind could be conveniently made. Thus, under the amended statute, one spouse in the divorce proceeding could be deprived of ownership of real property susceptible to partition to which that spouse would have been absolutely entitled under § 8.01-83 . Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

The 1988 amendment to subsection C of this section, which permits the court to order the division or transfer of jointly owned marital property, authorizes the alteration of legal title to real property; this is a change of a substantive, not a remedial, nature. Coulter v. Coulter, 1991 Va. App. LEXIS 327 (Va. Ct. App. Apr. 30, 1991).

Commissioner may use approximation and extrapolation to calculate contributions to jointly-held funds. —

Commissioner did not err when he calculated husband’s contribution to bond fund by approximating the amount of net rental income deposited into the bond fund by extrapolating data from the couple’s tax forms or by estimating the balance attributed to mortgage payments. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

This section, as amended in 1988, may not be applied so as to affect rights in a pending proceeding. Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432, 7 Va. Law Rep. 1564, 1991 Va. App. LEXIS 22 (1991).

Where there was no indication that the legislature intended the 1988 amendment to apply to pending litigation, the statute existing upon the filing of the bill of complaint controlled the disposition of jointly held marital property in a case filed in 1985. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

Retroactive application of proof provision. —

This section as amended in 1991, pertaining to the burden of proof of the owning spouse, which is procedural by nature and does not affect any substantive rights, can be applied retroactively. Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407, 10 Va. Law Rep. 203, 1993 Va. App. LEXIS 405 (1993) (see also Decker v. Decker, 22 Va. App. 486, 471 S.E.2d 775, 1996 Va. App. LEXIS 410 (1996)).

Flexibility in statutory scheme to make award in nature of alimony. —

Equitable distribution based on different considerations than spousal support. —

Equitable distribution of marital property is based upon different considerations than spousal support and is the means for dividing the marital estate acquired by the parties during the marriage. Stumbo v. Stumbo, 20 Va. App. 685, 460 S.E.2d 591, 12 Va. Law Rep. 100, 1995 Va. App. LEXIS 640 (1995).

Permissible scope of factoring premarital contributions. —

In making equitable distribution award, a trial court may properly consider the parties’ premarital contributions, both monetary and nonmonetary, insofar as those contributions affected the value of the marital property but that cohabitation alone, absent a showing of its impact on marital property values, is not an appropriate consideration. Floyd v. Floyd, 17 Va. App. 222, 436 S.E.2d 457, 10 Va. Law Rep. 396, 1993 Va. App. LEXIS 500 (1993).

Court must follow three-step process. —

Under this section the trial judge must follow a three-step process when ruling as to marital property. The judge must first ascertain the legal title to all property of the parties and classify it as separate or marital property. The judge must next determine the value of the property and the rights and interests of the parties in the marital property. Finally, based upon all those considerations, the judge must determine whether a marital award is warranted. Weseleskey v. Weseleskey, No. 0403-91-1 (Ct. of Appeals Oct. 22, 1991).

In matters of equitable distribution, a court must classify the property as separate or marital, assign a value to the property based on the evidence presented by both parties and, finally, distribute the property to the parties, considering the factors present in this section. Iverson v. Iverson, 2000 Va. App. LEXIS 309 (Va. Ct. App. Apr. 25, 2000).

Court must determine ownership and value of property. —

In addition to classifying property, the trial judge must determine the ownership and value of all real and personal property of the parties. In some cases, where the parties have been given a reasonable opportunity to provide the necessary evidence to prove valuation and through their lack of diligence have failed to do so, the trial judge may make a monetary award without giving consideration to the value of every item of property. However, a trial judge may not arbitrarily refuse to classify or evaluate marital or separate property where sufficient evidence to do so is in the record. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Where both parties put on evidence as to the value of a husband’s professional tools, purchased during a marriage, and the record indicated that both parties expected the trial court to classify, value, and divide the tools, the trial court should have included the value of the professional tools in an equitable distribution award. Dunfee v. Dunfee, 2010 Va. App. LEXIS 500 (Va. Ct. App. Dec. 28, 2010).

Section contemplates accumulated wealth, not future considerations. —

This section provides equitable distribution of accumulated marital wealth between marital parties; it does not contemplate consideration for future ability of one spouse to accumulate what will be separate property or future needs of other spouse. Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533, 5 Va. Law Rep. 1301, 1989 Va. App. LEXIS 3 (1989).

Court must fashion equitable distribution award prior to deciding issue of spousal support. —

In order for a court to consider the amount of any monetary award in determining whether spousal support is appropriate, it must decide the equitable distribution issues along with the spousal support issues or fashion the equitable distribution award prior to deciding the issue of spousal support; it may not first definitively decide the spousal support issue before determining the amount of a monetary award, if any. Jones v. Jones, No. 0082-91-2 (Ct. of Appeals, February 4, 1992).

Reversible error for trial court to enter support award prior to equitable distribution. —

Separation between considerations of support and considerations of equitable distribution. —

The appropriate separation between considerations of spousal support and considerations of an equitable distribution of marital wealth prevents a “double dip” by a spouse who seeks and receives encumbered marital property under this section and also seeks and receives spousal support under § 20-107.1 .Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Fixing spousal support to compensate spouse for property received under section. —

While § 20-107.1 requires a chancellor to consider the provisions made with regard to the marital property under this section, this requirement is a practical means by which the chancellor may fix a proper spousal support award in light of the financial result of the monetary award. This requirement, however, is not an authorization to fix a spousal support award to compensate a spouse further for marital property received pursuant to this section. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Requirement not authorization to fix support to satisfy debts on property. —

The requirement that the chancellor consider “the standard of living established during the marriage” pursuant to § 20-107.1 is not an authorization to fix a spousal support award so that the receiving spouse can satisfy outstanding debts on the marital property conveyed to that spouse pursuant to this section. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Income used for support and as asset for distribution not “double dipping.” —

Obligations on marital property properly considered under this section and not in § 20-107.1 . —

The outstanding obligations on marital property are properly considered when this section determinations are made and the marital wealth is equitably distributed. The same obligations are not to be factored again into § 20-107.1 .Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Credit for post-separation payments of marital debt. —

Husband is not entitled to dollar-for-dollar credit for post-separation contributions made to the care, acquisition, or maintenance of marital property. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Inherent powers of court in equity may be used. —

Once equitable distribution jurisdiction attaches, there is nothing in the statute to prevent the courts from using their inherent powers in equity. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

All provisions of section must be followed. —

Where the court considers whether an equitable monetary award may be appropriate, all of the provisions of this section must be followed. Bentz v. Bentz, 2 Va. App. 486, 345 S.E.2d 773, 3 Va. Law Rep. 27, 1986 Va. App. LEXIS 296 (1986); Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Where an equitable distribution award is appropriate, then all of the provisions of this section must be followed. Artis v. Artis, 4 Va. App. 132, 354 S.E.2d 812, 3 Va. Law Rep. 2161, 1987 Va. App. LEXIS 171 (1987).

When equities determined. —

This section does not preclude a court from granting a divorce while making a clear and explicit reservation of jurisdiction over the issue of equitable distribution. However, even where there is such a reservation, the court must still use the date of the filing of the bill of complaint for divorce as the date at which the equities of the parties in their property are determined. This date is mandated by subdivision A 2. A reservation by the trial court cannot alter the statutory factors or time references, but simply permits the trial court to exercise its subject matter jurisdiction subsequent to the entry of the divorce decree. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

For purposes of equitable distribution, when a marital partnership begins and ends is a more dynamic and complex concept than the day on which marital vows are exchanged or a court finally dissolves a marriage that may have long before ended in fact. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

“Upon decreeing a divorce” defines earliest time for equitable distribution. —

The statutory scheme of equitable distribution jurisdiction contains no provision which expressly allows the circuit court to enter consecutive decrees on the subjects of divorce and equitable distribution. It is clear, however, that no decree of equitable distribution can be made before the parties are divorced. This is implicit in the phrase “upon decreeing a divorce.” This phrase defines the earliest time at which the court may award equitable distribution. Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157, 1985 Va. App. LEXIS 73 (1985), limited, Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

Amendment of answer to add claim. —

Because a wife’s Va. Sup. Ct. R. 1:8 motion to amend her answer was not merely a way to avoid trial, and because the husband should have been prepared to litigate the equitable distribution of marital property under § 20-107.3 as there was no property settlement agreement, the wife’s motion for leave to amend should have been granted. Costanzo v. Costanzo, 2009 Va. App. LEXIS 38 (Va. Ct. App. Feb. 3, 2009).

Receipt of equitable distribution portion upon sale of home. —

Trial judge’s determination that the husband would receive his portion of the equitable distribution award upon the sale of the marital home was within the discretion given by statute, and the evidence proved no abuse of that discretion. Bergdahl v. Bergdahl, No. 1173-91-4 (Ct. of Appeals Nov. 3, 1992).

Equal division not presumed. —

The Court of Appeals declines to adopt a rebuttable presumption favoring equal division of marital property. Papuchis v. Papuchis, 2 Va. App. 130, 341 S.E.2d 829, 1986 Va. App. LEXIS 250 (1986).

This section contains no presumption favoring equal division of marital property. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

The General Assembly has not adopted a statutory presumption of equal distribution. Instead, this section requires the trial court to determine the amount of the award and the method of its payment after considering 11 specific factors. This approach follows the recommendation of the legislative subcommittee which expressly rejected any presumption in favor of an equal distribution of marital property. Papuchis v. Papuchis, 2 Va. App. 130, 341 S.E.2d 829, 1986 Va. App. LEXIS 250 (1986).

Division of the parties’ marital estate, 55 percent to the husband and 45 percent to the wife, was not inherently unfair as the trial court did not need to start off with an equal division and then look to the discretionary factors because there was no presumption of equal distribution of marital assets. Ay Hwa White v. White, 56 Va. App. 214, 692 S.E.2d 289, 2010 Va. App. LEXIS 178 (2010).

In a divorce, it was not error for a trial court to award a wife 28 percent of marital property because the court (1) discussed the factors in subsection E of § 20-107.3 , (2) found the wife unilaterally filed for bankruptcy protection for the parties’ company after being ordered to bring a company property out of foreclosure, and (3) was not required to distribute marital property equally. Pascarella v. McCoy, 2011 Va. App. LEXIS 8 (Va. Ct. App. Jan. 11, 2011).

But may be made upon consideration of factors in this section. —

While there is no presumption in Virginia favoring equal division of marital property, neither is a court constrained from making an equal division if it finds it appropriate to do so upon consideration of the factors of this section. Bentz v. Bentz, 2 Va. App. 486, 345 S.E.2d 773, 3 Va. Law Rep. 27, 1986 Va. App. LEXIS 296 (1986); Robinette v. Robinette, 10 Va. App. 480, 393 S.E.2d 629, 6 Va. Law Rep. 2705, 1990 Va. App. LEXIS 111 (1990).

The court may make an equal division if, based upon the factors of subsection E, an equal division is appropriate, but Virginia has no presumption favoring equal division. Robinette v. Robinette, 4 Va. App. 123, 354 S.E.2d 808, 3 Va. Law Rep. 2151, 1987 Va. App. LEXIS 170 (1987); Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

Subsections D and G, where applicable to a particular factual situation, complement each other and provide the chancellor the practical means to equitably distribute the marital wealth without requiring payment of any portion of that wealth prior to its actual receipt. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Equitable distribution award does not affect the rights of third-party creditors. —

In Virginia, an equitable distribution award does not affect the rights of third-party creditors, under § 20-107.3 .Secrest v. Secrest, 453 Bankr. 623, 2011 Bankr. LEXIS 2753 (Bankr. E.D. Va. 2011).

Distribution to nonparty not authorized. —

This section does not authorize the court to make an equitable distribution of marital property to a nonparty. Woolley v. Woolley, 3 Va. App. 337, 349 S.E.2d 422, 3 Va. Law Rep. 1063, 1986 Va. App. LEXIS 368 (1986).

In making its equitable distribution award, the court had no basis on which to grant the husband’s mother a portion of the proceeds of the sale of the marital residence, since the husband’s mother was not a party to the divorce action and there was no evidence before trial court showing any of the elements necessary for the imposition of a constructive trust. No evidence suggested that a fraud or other injustice was perpetrated on her when the marital residence was purchased, there was no evidence before the court that she was promised or believed she had acquired an ownership interest in the property, and her contribution to the down payment on the property was never acknowledged in any contract, agreement or other instrument. Woolley v. Woolley, 3 Va. App. 337, 349 S.E.2d 422, 3 Va. Law Rep. 1063, 1986 Va. App. LEXIS 368 (1986).

Circuit court did not err in finding that a husband had divested himself of any rights to certain personal property because the court neither exceeded its statutory authority, as the court did not make a property classification or title determination involving a party other than the husband or the wife, nor erred by finding that the husband had divested himself of the property when the wife did not prove a gift of that property to the parties’ children. Hassell v. Hassell, 2018 Va. App. LEXIS 353 (Va. Ct. App. Dec. 18, 2018).

Distribution within discretion of court subject to statutory factors. —

Division or transfer of jointly owned marital property and the amount of any monetary award, subject to the enumerated statutory factors, is within the sound discretion of the trial court. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Where the trial judge took statutory factors into consideration when it divided the marital estate, the trial court did not abuse its discretion by allocating the two assets among the parties rather than splitting the value between them. Klein v. Klein, 2003 Va. App. LEXIS 392 (Va. Ct. App. July 8, 2003).

No abuse of discretion occurred by the trial court awarding a portion of an investment account to a wife where the husband failed to provide sufficient credible evidence to trace the funds from his inheritance to the account and, therefore, failed to rebut the presumption that the account was marital property. No abuse of discretion in awarding the parties’ marital home to the wife as her separate property where the home belonged to the wife prior to the marriage, and the husband failed to prove that his nonmonetary contributions created any marital interest in the residence. Hoffman v. Hoffman, 2004 Va. App. LEXIS 216 (Va. Ct. App. May 11, 2004).

Trial court’s allocation of 80 percent of the parties income tax liability to the husband was upheld on appeal, because the debt was allocated in the same proportion as parties’ individual ownership in the dry cleaning business they owned together during the marriage. Johnson v. Johnson, 2005 Va. App. LEXIS 223 (Va. Ct. App. June 7, 2005).

Because the record demonstrated that a commissioner and the trial court considered and weighed each of the required statutory factors in determining and distributing the parties’ debts and assets, including a thrift savings plan in dispute, because the thrift savings plan was a savings account which, at the time of separation, had a value of $5,200, because the husband testified that he borrowed $5,000 against it to pay bills, and he repaid the money to the account, because the wife received 50 percent of the proceeds from the sale of the marital residence, 40 percent of the marital share of the husband’s military service pension with survivor benefits, and the vehicle, with any remaining indebtedness on it assigned to the husband, because the commissioner recommended that the wife not be assessed any penalty for using the checking account balance of $1,830, the IRA valued at $3,546, and savings bonds, the trial court did not abuse its discretion in awarding the husband the thrift savings plan as part of the equitable distribution decree. Hughes v. Hughes, 2006 Va. App. LEXIS 304 (Va. Ct. App. July 11, 2006).

Trial court did not err in ordering property held by a husband and a wife to be sold rather than to be divided in kind. The trial court heard the testimony, reviewed the evidence, considered the factors listed in subsection E of § 20-107.3 , and decided the best course of action was to order the sale of the property, the remedy that the husband specifically requested. Willson v. Willson, 2013 Va. App. LEXIS 128 (Va. Ct. App. Apr. 23, 2013).

Trial court did not err in allocating 90% of the marital equity in a rental home to the wife and the remaining 10% to the husband, or in allocating 95% of the marital equity in the marital home to the wife and the remaining 5% to the husband. The trial court thoroughly considered each of the statutory equitable distribution factors, and its findings on those statutory factors were supported by credible evidence in the record. Smith v. Smith, 2021 Va. App. LEXIS 22 (Va. Ct. App. Feb. 16, 2021).

Refusal to determine equitable distribution was abuse of discretion. —

Because ample evidence was introduced and equitable distribution was requested in the wife’s cross-bill, the issue should have been determined, and it was an abuse of discretion for the court to have refused to do so. Nor is it of moment that the final decree gave her the right to petition for this relief at any time. She should not be put to the cost of additional litigation to obtain a ruling that she had already requested where there was sufficient evidence already on the record. Shaughnessy v. Shaughnessy, 1 Va. App. 136, 336 S.E.2d 166, 1985 Va. App. LEXIS 74 (1985).

Abuse of discretion in failing to properly classify, value, and consider factors. —

Where the court of appeals could not determine from the record whether the chancellor properly classified the assets as marital or separate and could not determine the value of the properties, and where there was nothing in the record to show that the factors set forth in subsection E were considered in determining the monetary award, the chancellor abused his discretion in failing to properly classify and value the marital and separate assets and to consider all of the factors set forth in subsection E. Miller v. Miller, No. 0647-89-3 (Ct. of Appeals June 12, 1990).

Trial court’s property division was remanded where the court failed to value the assets and where it erred in failing to classify funds that were traceable to the husband’s inheritance as separate property; award of child care cost was affirmed. West v. West, 2003 Va. App. LEXIS 512 (Va. Ct. App. Oct. 14, 2003).

Despite being undisputed that the husband deposited $350,000 from marital property into his separate account, as a result of a refinancing of marital investments, because it was not clear from the record whether that amount was a loan, and thus a personal liability to the husband that had to be treated as an asset, the matter was remanded to determine the purpose of the withdrawal and the evaluation of the same. Lazarchic v. Lazarchic, 2005 Va. App. LEXIS 291 (Va. Ct. App. July 26, 2005).

Abuse of discretion to fail to consider evidence. —

Because a husband’s evidence regarding the equitable distribution of marital property was admitted into the record and was legitimately before the trial court for its consideration, the court abused its discretion by failing to consider the same and determine how this evidence should affect the distribution of the marital estate and the award of attorney’s fees. Didio v. Didio, 2007 Va. App. LEXIS 453 (Va. Ct. App. Dec. 18, 2007).

Failure to follow statutory procedure. —

Trial court abused its discretion in awarding wife 15 percent of husband’s military pension, where he did not follow the statutory procedure set forth in this section. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Sanctions for failing to disclose evidence. —

Adequate discovery techniques are available to the parties to enable them to obtain evidence to identify, classify, or evaluate marital or separate property; the court has available and should exercise adequate sanctions to deal with the reluctant or recalcitrant party or witness who fails or refuses to disclose relevant evidence. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

Motion to compel properly served. —

Husband’s motion to compel, filed pursuant to subsection K of this section, was properly served on his incarcerated wife’s committee. McElroy v. McElroy, 1999 Va. App. LEXIS 415 (Va. Ct. App. June 22, 1999).

Wife could not file subsequent action to gain benefit of section where husband’s action pending as of effective date. —

Where husband’s suit for divorce, filed on June 30, 1982, remained pending on July 1, 1982, the date that § 20-107.1 et seq. first took effect, his suit was “pending litigation” as contemplated by Acts 1982, c. 309, cl. 3, which provided that this section would not affect pending litigation. And as in addition to filing an answer in her defense July 27, 1982, wife chose to seek affirmative relief in her response to husband’s bill of complaint, wife voluntarily placed the adjudication of all of her rights incident to the divorce squarely within the context of “pending litigation.” Therefore, she was not entitled to file a subsequent divorce action based upon the same facts in order to gain the benefit of this section. Calamos v. Calamos, 4 Va. App. 96, 354 S.E.2d 102, 3 Va. Law Rep. 2130, 1987 Va. App. LEXIS 167 (1987).

Request held to be in substantial compliance. —

Where wife filed within a week after filing her answer and cross-bill to husband’s bill of complaint seeking final divorce, and still within the 21-day period allotted a separate document in the clerk’s office entitled “Motion for Determination of Marital Property Rights,” the court held that this instrument was in substantial compliance with the provisions of this section, which only required that she “request” the court to apply the provisions of the equitable distribution statute to the case. Gologanoff v. Gologanoff, 6 Va. App. 340, 369 S.E.2d 446, 4 Va. Law Rep. 2903, 1988 Va. App. LEXIS 47 (1988).

Failure to adjust award for tax consequences. —

Trial court did not err in failing to adjust the award for tax consequences, where the parties failed to present evidence concerning the tax consequences if, in fact, liquidation of property were necessary to satisfy the award. Payne v. Payne, No. 1751-88-4 (Ct. of Appeals Apr. 17, 1990).

Exemptions under § 34-4 . —

This section does not apply to a determination of whether a debtor may claim an exemption under § 34-4 in property owned by her spouse prior to marriage. In re Wilkinson, 100 Bankr. 315, 1989 Bankr. LEXIS 1141 (Bankr. W.D. Va. 1989).

Ordering payments directly to creditors invalid. —

In appropriate circumstances, sharing costs pending the sale of a marital residence provides the trial court an effective tool to ensure responsible action. McCombs v. McCombs, 26 Va. App. 432, 494 S.E.2d 906, 1998 Va. App. LEXIS 42 (1998).

Post-judgment and prejudgment interest. —

Where the court entered a final divorce decree on June 24, 1988, and husband conceded that $100,000 was due on March 11, 1988 and was not paid until August 2, 1988, the court of appeals affirmed that part of the order which allowed post-judgment interest, but reversed that part of the order that denied pre-judgment interest from March 11, 1988 to June 24, 1988. Knauft v. Knauft, No. 1058-89-1 (Ct. of Appeals July 3, 1990).

Trial court did not err in failing to award a wife post-judgment interest on her distribution from a husband’s retirement benefits as § 8.01-382 applied, unless the trial court ordered otherwise; the trial court’s order specifically denied the requested interest on the indemnification sums, thereby “ordering otherwise.” Poziombke v. Poziombke, 2006 Va. App. LEXIS 61 (Va. Ct. App. Feb. 14, 2006).

Court did not err in refusal to amend order endorsed by counsel. —

Where order of November 1, 1985, did not conform to the stipulation that “ ‘wife did all the duties . . . as a mother and as a wife’ and instead held that wife ‘had made an equal contribution to the marriage, well being of the family, and to the acquisition, care and maintenance of the marital property,’ ” counsel’s endorsement of the order, and his stated reasons for so endorsing, sufficiently corroborated the wife’s explanation that the November 1 order reflected the intent of the stipulation; accordingly, the trial court did not err in refusing to amend. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

Relevant consideration of spousal activities. —

Where husband traveled away from the family for the purposes of adding to his scouting collection and participating in sexual liaisons — activities which not only were detrimental to the marriage and the family by drawing him farther and farther away, but also were a financial drain on the marital assets, these activities were relevant in determining the distribution award. Martin v. Martin, 1995 Va. App. LEXIS 822 (Va. Ct. App. Nov. 7, 1995).

Proceedings not improperly bifurcated. —

As the trial court did not err in denying the parties’ request to divide two jointly owned parcels of real estate that had negative equity, it did not improperly bifurcate the proceedings under subsection A of § 20-107.3 .Fox v. Fox, 61 Va. App. 185, 734 S.E.2d 662, 2012 Va. App. LEXIS 395 (2012).

B.Valuation.

1.Generally.

Value based on intrinsic worth to parties. —

The value of an item of marital property is its intrinsic worth to the parties: the worth to the husband and wife, the value to the marital partnership that the court is dissolving. Howell v. Howell, 31 Va. App. 332, 523 S.E.2d 514, 2000 Va. App. LEXIS 24 (2000).

A trial court valuing marital property for the purpose of making a monetary award must determine from the evidence that value which represents the property’s intrinsic worth to the parties. Cox v. Cox, 2001 Va. App. LEXIS 252 (Va. Ct. App. May 15, 2001).

Valuation should provide the most current and accurate information. —

The trial judge in evaluating marital property should select a valuation that will provide the court with the most current and accurate information available which avoids inequitable results. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

The general rule announced in Mitchell v. Mitchell , 4 Va. App. 113, 355 S.E.2d 18 (1987) is that the value of the assets determined as near as practicable to the date of trial will usually be the most current and accurate value available. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

The trial court did not err in using the most current evaluation of marital assets upon rehearing. Wagner v. Wagner, 15 Va. App. 120, 421 S.E.2d 218, 9 Va. Law Rep. 337, 1992 Va. App. LEXIS 239 (1992).

Equitable distribution award in a divorce action was reversed because a commissioner improperly relied on the law-of-the-case doctrine in refusing the wife’s offer to show that the value of the home had nearly doubled when the action was referred back to him, after his first report, for reconsideration of spousal support; the law-of-the-case doctrine did not apply to commissioners’ recommendations, and the commissioner abused his discretion in relying on a legally inapplicable standard to preclude any consideration of the revaluation request. Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 2006 Va. App. LEXIS 343 (2006).

Valuation cannot be based on guesswork. —

The trial court’s valuation cannot be based on mere guesswork. However, the burden is on the parties to provide the trial court sufficient evidence from which it can value their property. Stratton v. Stratton, 16 Va. App. 878, 433 S.E.2d 920, 10 Va. Law Rep. 127, 1993 Va. App. LEXIS 337 (1993).

Every capital asset has a value basis and thus a potential liability for capital gain tax upon sale. That potential liability is a proper consideration in the determination of a property division and an award if it is not speculative; however, here, by basing its appraisal of defendant’s dental practice on potential liability resulting from a hypothetical sale, the trial court constructed an appraisal that was not based on the fair market value of the property and was thus error. Arbuckle v. Arbuckle, 22 Va. App. 362, 470 S.E.2d 146, 1996 Va. App. LEXIS 322 (1996).

Consideration of present and foreseeable future circumstances. —

When considering the valuation of the marital estate, the court will look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future, not to what may happen in the future. Iverson v. Iverson, 2000 Va. App. LEXIS 309 (Va. Ct. App. Apr. 25, 2000).

Valuation of property where assets wasted in anticipation of separation. —

Burden is on the party who last had the funds to establish by a preponderance of the evidence that the funds were used for living expenses or some other proper purpose; if the party is unable to offer sufficient proof, the court must value the property at a date other than the date of the evidentiary hearing so as to achieve an equitable result. Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257, 7 Va. Law Rep. 78, 1990 Va. App. LEXIS 143 (1990) (decided prior to the 1988 amendment).

Trial court did not err in awarding a wife a net equitable distribution of $17,604 because the husband provided insufficient evidence to rebut the trial court’s finding of waste; a significant amount of testimony was presented about the husband’s sale of multiple items of marital property despite the existence of a court order prohibiting such conduct. Moret v. Moret, 2018 Va. App. LEXIS 130 (Va. Ct. App. May 8, 2018).

Parties’ burden to present evidence of ownership and value. —

While this section mandates that trial courts determine the ownership and value of all real and personal property of the parties, the litigants have the burden of presenting sufficient evidence for the court to discharge its duty. Iverson v. Iverson, 2000 Va. App. LEXIS 309 (Va. Ct. App. Apr. 25, 2000).

The fact that one spouse acquiesces in using the separation date as the appropriate date for valuing certain property is not binding where the court later considers the value of other property that has significantly appreciated or depreciated in value due solely to passive factors; the valuation date should be that date which most accurately reflects the fair market value of the asset to the parties. Tatum v. Tatum, 2000 Va. App. LEXIS 789 (Va. Ct. App. Dec. 5, 2000).

Treatment of pension where valuation not shown. —

Where a party asks the trial court to make an equitable distribution of a pension under the immediate offset method but fails to provide credible evidence of present value, the court has insufficient evidence with which to make an award under the immediate offset method, while if the trial court orders deferred distribution of the marital share of the pension, it need not determine the pension’s present value. Hence, the trial court, in the absence of evidence of the present value of husband’s Virginia Retirement System (VRS) pension, did not abuse its discretion by not making a finding of fact as to its present value, and in awarding husband, as part of its equitable distribution award, one hundred 100% of the marital share of the VRS pension benefit he had already begun to receive on a monthly basis. Torian v. Torian, 38 Va. App. 167, 562 S.E.2d 355, 2002 Va. App. LEXIS 241 (2002).

Court properly considered impact of tax returns not yet filed. —

Trial court did not abuse its discretion in considering the tax consequences of distribution of assets based on tax returns which had not yet been filed, where consequences resulted from court-approved sale of stock. Shooltz v. Shooltz, 27 Va. App. 264, 498 S.E.2d 437, 1998 Va. App. LEXIS 255 (1998).

The value of marital property should not be reduced when non-marital property serves as collateral for the debts of a third party. Martin v. Martin, 1995 Va. App. LEXIS 822 (Va. Ct. App. Nov. 7, 1995).

Credible evidence of value cannot be rejected. —

The court may not refuse or fail to give parties a reasonable opportunity to develop and present evidence of value, nor can the court arbitrarily reject credible evidence of value merely because other evidence might be more accurate, convincing, desirable, or persuasive. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

Determination of ownership and value must go beyond guesswork. —

This statute mandates that the court determine the ownership and value of all real and personal property of the parties. This determination must go beyond mere guesswork. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

A trial judge may select a value within a range of conflicting opinions. The trial judge had credible evidence of value to base a finding and was not required to reject it merely because the husband believed his “evidence might be more accurate, convincing, desirable, or persuasive.” By attributing a value to the property comparable to the testimony that was deemed credible, the trial judge did not err. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

In valuing the marital assets of the parties to a divorce, the trial court permissibly found which of the parties’ experts provided a more accurate value, and the trial court was not prohibited from making adjustments to that expert’s opinion. Zasler v. Zasler, 2003 Va. App. LEXIS 470 (Va. Ct. App. Sept. 9, 2003).

When parties present different evidence of value, the trial court is not required to accept either valuation, as long as the value is within a range supported by the evidence. Quinn v. Quinn, 1997 Va. App. LEXIS 573 (Va. Ct. App. Sept. 2, 1997).

Section does not mandate “Brandenburg Formula” and no error in alternative approach. —

Although applying the “Brandenburg Formula” was one of the approaches available to the trial court when determining husband’s credit for his separate contribution to the farm property, this section does not currently mandate the use of this formula. As such, the trial court’s use of an alternative approach was not an abuse of discretion. Raab v. Raab, No. 0669-97-4 (Ct. of Appeals Dec. 23, 1997).

Not error for court to adopt wife’s valuation figures. —

No error to use wife’s valuation figures where as said figures did not amount to hearsay, but were offered to show that the husband had notice of the arrearages in his retirement pay that he owed the wife, and that he was willfully violating the terms of the separation agreement which was made part of the final divorce decree; thus, the trial court properly found the husband in contempt. Hollis v. Burnell, 2004 Va. App. LEXIS 402 (Va. Ct. App. Aug. 24, 2004).

Where the sole evidence in the record regarding the valuation of the parties’ personal property was county tax assessment record produced by the wife, and the record on appeal contained no evidence of the husband’s asserted alternate values, the trial court did not err in accepting the wife’s valuation figures. Gilliland v. Gilliland, 2004 Va. App. LEXIS 567 (Va. Ct. App. Nov. 16, 2004).

Without providing the appeals court with the direct testimony of his expert, a husband failed to show how the trial court erred in accepting his wife’s expert’s valuation of the husband’s software company over that of his expert; thus, the court found no error in the trial court’s equitable distribution award. Lannes v. Lannes, 2005 Va. App. LEXIS 176 (Va. Ct. App. May 3, 2005).

No evidence that parties stipulated to present value of retirement. —

Where in a memorandum by appellee, appellee referred to the amount of $26,295.86 indicated in Joint Exhibit #2 as “the stipulated present fair market value of the husband’s retirement,” and where the trial court apparently adopted this interpretation of the phrase “Fair Market Equity (Net) Value,” the trial court concluded that the parties had stipulated to the present value of appellee’s retirement when there was no evidence in the record to support this conclusion; therefore, the court of appeals remanded the case for a determination of the present value of appellee’s pension. Gwathmey v. Gwathmey, 1994 Va. App. LEXIS 674 (Va. Ct. App. Nov. 15, 1994) (decided under former subdivision E 8).

Change of value since time of valuation. —

The court may not inequitably allow a party to satisfy a monetary award with property whose value has substantially changed since the date of the award without considering the actual value at the time of the transfer. Thus, if either party contends that the value has changed since the time of valuation, that party may raise the issue and both parties must be given the opportunity to be heard. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Trial court must determine value which represents intrinsic worth. —

Trial courts valuing marital property for the purpose of making a monetary award must determine from the evidence that value which represents the property’s intrinsic worth to the parties upon dissolution of the marriage. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

Award made without consideration to classification or valuation. —

Trial courts may, without doing violence to this section, make a monetary award without giving consideration to the classification or valuation of every item of property, where the parties have been given a reasonable opportunity to provide the necessary evidence to prove classification or valuation, but through their lack of diligence have failed to do so. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

Failure to value separate property. —

As the value of a former husband’s separate property was not relevant to the equitable distribution determination, the trial court’s failure to value that property as required by subsection A of § 20-107.3 was harmless error. Stout v. Stout, 2009 Va. App. LEXIS 354 (Va. Ct. App. Aug. 11, 2009).

Unclear whether court considered value of all property. —

Where trial judge did not credit the wife with the actual amount received, but only the amount remaining in account, it was not clear that the trial court properly considered the value of all the property of the parties in its determination of the monetary award made to wife, and therefore, the issue was remanded to the trial court. Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257, 7 Va. Law Rep. 78, 1990 Va. App. LEXIS 143 (1990).

Calculation of value. —

Circuit court was entitled to infer that the parties’ asking price for an interest in a time share property was credible evidence of the value of the property. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Circuit court erred in valuing an account because before distributing it, the circuit court had to value the account properly by deducting the lien on the account, the secured debt owed on the equity line; the circuit court valued the account in accordance with the parties’ stipulation concerning the account balance, without considering the amount of the lien, and ordered the account divided equally, awarding each party half the value of the balance. Henderson v. Henderson, 2018 Va. App. LEXIS 134 (Va. Ct. App. May 15, 2018).

Assignment of value by trial court. —

Circuit court, on remand was to value one spouse’s three percent interest in a commercial real estate partnership by assigning a value in a dollar amount to the interest. Otherwise the court could not account for the benefit to the spouse in retaining the total partnership interest when redistributing other marital property between the parties. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Determination of ownership and value must go beyond guesswork.—

Remand for reconsideration was necessary because a trial court committed reversible error in that the court’s determination of the current value of an account was not supported by evidence in the record on appeal. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

2.Date of valuation.

Valuation as of date of evidentiary hearing not always mandatory. —

Trial court did not err when it failed to use the date of the evidentiary hearing to determine the value of several properties subject to equitable distribution; although as a general rule, a court must determine the value of any property subject to equitable distribution as of the date of the evidentiary hearing on the valuation issue, in order that the property interests of the spouses be adjusted fairly and equitably, a trial court may not allow one party to squander or destroy marital assets so as to make an equitable award impossible. Barb v. Barb, No. 1177-91-4 (Ct. of Appeals Mar. 31, 1992).

A trial judge acted within his discretion to choose a valuation date other than the date of the evidentiary hearing where the hearing was delayed for several years due to turnover in the wife’s counsel, where the parties had not worked together as a partnership for years before their separation and maintained separate lives, and where the distribution was not based on on a percentage of the value of all the assets but, rather, primarily on the role of the parties in the acquisition and upkeep of the subject properties; under these circumstances, it was proper to use the date of separation as the valuation date. Cametas v. Cametas, 2000 Va. App. LEXIS 561 (Va. Ct. App. Aug. 1, 2000).

Trial judge did not err in refusing to value the parties’ property as of the date on which the husband alleged that the wife moved from the bedroom. Hanyok v. Hanyok, 2002 Va. App. LEXIS 468 (Va. Ct. App. Aug. 13, 2002).

Although subsection A of § 20-107.3 generally required assets to be valued as of the date of the evidentiary hearing, the trial court did not err in valuing the liquid marital assets at the value on the date of an earlier deposition since the deposition valuation was the only factual information presented to the trial court. Hamad v. Hamad, 61 Va. App. 593, 739 S.E.2d 232, 2013 Va. App. LEXIS 95 (2013).

Valuation should have been at time of hearing. —

Trial court’s valuation of the husband’s IRA, based on the amount invested to date was an abuse of discretion given that the current value was the relevant measure. Robertson v. Robertson, 2017 Va. App. LEXIS 278 (Va. Ct. App. Nov. 7, 2017).

One recognized justification for altering the evaluation date is a showing of dissipation of marital assets. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

The choice of valuation date must be one that will provide the court with the most current and accurate information available which avoids inequitable results. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Burden on parties to show most appropriate valuation date. —

The record established that the trial court considered all the evidence as to the value of the marital assets and considered the total value in his equitable distribution award. Each valuation date selected was supported by evidence which the trial court found as the most accurate information available as to value. The burden was on the parties to provide the trial court with sufficient evidence as to the most appropriate valuation date and on several occasions the trial court inquired whether there were any additional issues or evidence that the parties wanted to present. The trial court, upon conflicting evidence and in the proper exercise of its discretion, determined that the dates selected represented the most current and accurate information available which would avoid inequitable results. Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d 666, 1994 Va. App. LEXIS 595 (1994).

Burden was not met to change valuation date. —

Trial judge did not err in selecting date of hearings before commissioner as appropriate time to determine value of pension funds since husband failed to meet burden of proof where husband’s evidence did not support his assertion that contributions were made after bill was filed. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Here, the manifest intent of the original order was to allot the wife one-half of the value of a particular account on July 28, 1994; while this method of division later disfavored her, the court was without authority to substantively modify its order simply to redress this changed circumstance. Fahey v. Fahey, 24 Va. App. 254, 481 S.E.2d 496, 1996 Va. App. LEXIS 520 (1996).

Husband failed to show good cause why the valuation date of the parties’ business, a newspaper, should be the date of separation rather than the date of an evidentiary hearing, as the husband never testified that the value of the business increased after the parties’ separation. Absent evidence permitting the trial court to grant him the relief he requested, it could not be said that the trial court erred in denying his motion for an alternate valuation date. Pearson v. Pearson, 2006 Va. App. LEXIS 334 (Va. Ct. App. July 25, 2006).

Finding in favor of the husband in the parties’ action for divorce was proper under subsection A of § 20-107.3 because there was no abuse of the trial court’s discretion in granting the husband’s motion for an alternate valuation date for the wife’s accounts and its failure to order another alternate valuation date for which the wife had not moved. The trial court granted the husband’s motion for an alternate valuation date for the wife’s accounts and she was unable to adequately explain where the money went after she withdrew it; the trial court explained in detail its reasons for assigning valuation dates and those reasons were cogent and proper. Parikh v. Parikh, 2011 Va. App. LEXIS 209 (Va. Ct. App. June 21, 2011).

Record did not disclose why the trial court employed a valuation date that was almost one year old, and the case did not present a situation where a trial court selected an alternate valuation date as a result of dissipation of marital funds; with no showing of good cause for an alternate valuation date, it was error to employ a valuation date from December 2010 for a hearing that occurred in October and November 2011, and on remand the trial court was to value the account based on the account statement that was closest to the date of the evidentiary hearing date. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

Trial court did not abuse its discretion in denying a wife’s pretrial motion for an alternative valuation date because the wife failed to carry her burden as to why good cause was established for an alternative valuation date; there was no evidence that the husband dissipated marital assets, and thus, the burden never shifted to him to prove that money was spent for a proper purpose. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

Date of evidentiary hearing used to evaluate stock. —

The trial court did not abuse its discretion in selecting the date of the evidentiary hearing for valuing the stock at issue, where during the separation of the parties, neither party had impaired or taken any action otherwise affecting the value of this item of marital property, and there were no peculiar facts or circumstances presented to the trial court which suggested that an unfair result would be reached from use of the date of the evidentiary hearing. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987) (decided prior to the 1988 amendment).

Court properly valued joint accounts as of the date of evidentiary hearing. —

Trial court did not err in valuing joint accounts as of the date of the evidentiary hearing rather than the date of separation where wife failed to file a motion to value the property as of the date of separation. Luczkovich v. Luczkovich, 26 Va. App. 702, 496 S.E.2d 157, 1998 Va. App. LEXIS 105 (1998).

The court properly valued the parties’ assets as of the date of their depositions, notwithstanding the husband’s assertion that the wife had completely depleted her IRA by then, as there was evidence that she had used the funds in her IRA for necessary living expenses and the evidence did not show as a matter of law that inequitable results would result from using the date of the hearing. Coiner v. Coiner, 1998 Va. App. LEXIS 327 (Va. Ct. App. June 9, 1998).

In a divorce case, the trial judge did not abuse his discretion in his selection of the evidentiary hearing as the valuation date, rather than the date of separation of the parties, because this statute established a presumption that the date of the evidentiary hearing be used as the date of the valuation of property. Sultan v. Malik, 2020 Va. App. LEXIS 127 (Va. Ct. App. Apr. 28, 2020).

Date of separation properly used as valuation date. —

Trial court did not err in assigning the date of separation as the valuation date where the wife made a timely motion to use the date of separation as an alternative valuation date, claiming that, since the parties’ separation, the husband transferred, used and dissipated certain of the marital funds in the parties’ bank and investment accounts. McBride v. McBride, 2004 Va. App. LEXIS 640 (Va. Ct. App. Dec. 28, 2004).

Subsection A’s provision that the court shall determine the amount of any marital debt as of the date of the last separation of the parties is mandatory. The statutory scheme does not provide circuit courts with the authority to factor a debt into the equitable distribution calculation without first determining the amount owed. Scheer v. Scheer, 2018 Va. App. LEXIS 224 (Va. Ct. App. Aug. 14, 2018).

Circuit court erred in apportioning the husband’s student loans where it did not determine the amounts owed on the loans as of the date of separation before distributing marital property, as required by subsection A of § 20-107.3 , and that failure affected the equitable distribution determination given the interest and other charges that accrued in the five years since the separation. Scheer v. Scheer, 2018 Va. App. LEXIS 224 (Va. Ct. App. Aug. 14, 2018).

Date of separation improperly used as valuation date. —

The trial court erred in determining the value of a company, as the trial court should have used the date of the hearing as the valuation date rather than the date of separation, as the value of the company had fell to zero by the date of the hearing. Thomas v. Thomas, 40 Va. App. 639, 580 S.E.2d 503, 2003 Va. App. LEXIS 306 (2003).

Passage of time justified reopening of hearing on valuation of businesses. —

Trial court erred in concluding that this section barred it from reopening hearing on the valuation of husband’s businesses, where court rendered its decision nearly 20 months after the parties submitted written memoranda, during which time husband’s businesses had begun operations and sufficient historical earnings were available to warrant the application of wife’s expert’s methodology for valuation. Shooltz v. Shooltz, 27 Va. App. 264, 498 S.E.2d 437, 1998 Va. App. LEXIS 255 (1998).

Use of date reflecting last valuation information on business furnished to expert. —

In granting a divorce decree, the trial court did not err in using as date for valuation of husband’s business the date of the last information provided by husband to wife for use by her business valuation expert. Carr v. Carr, 2002 Va. App. LEXIS 279 (Va. Ct. App. May 7, 2002).

Refusal to use alternate valuation date. —

Trial court did not err in refusing to use an alternate valuation date because the husband did not waste stock proceeds; the husband used the proceeds to pay taxes and marital debt and to disburse $150,000 to each party. Allen v. Allen, 2017 Va. App. LEXIS 54 (Va. Ct. App. Feb. 28, 2017).

Circuit court properly relied on husband’s testimony, his demonstrative exhibit, and its own detailed examination of husband’s bank statements in determining that of the $44,650.19 in marital funds deposited into husband’s account, $19,638.77 of those funds were used for a proper purpose; the circuit court did not err in denying wife’s motion for an alternate valuation date. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

When valuation date may be changed. —

Subsection A of this section fixes the date of the evidentiary hearing as the date that the court shall determine the value of property. Only upon motion of a party made no less than 21 days before the evidentiary hearing and upon a finding of good cause, in order to attain the ends of justice, may the trial judge change the valuation date. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Trial court’s choice of a date for valuation of the parties’ marital assets closer to the date of the evidentiary hearing than the date suggested by the husband was not error, under subsection A of § 20-107.3 .Zasler v. Zasler, 2003 Va. App. LEXIS 470 (Va. Ct. App. Sept. 9, 2003).

Trial court abused its discretion in refusing to revalue a condominium on remand where over three years had elapsed since the original determination of its value. Harris v. Harris, 2006 Va. App. LEXIS 67 (Va. Ct. App. Feb. 21, 2006).

Although a former wife sought to set aside a sale of the marital residence for less than an initial valuation of $300,000, the trial court did not abuse its discretion in authorizing the sale of the house for less than the value placed on it in a final divorce decree. The wife agreed to the price being set at $200,000 in a prior court order and evidence presented at a hearing established that the parties had tried to sell the property without success, the only valid offer was $175,000, and the lien holder was threatening foreclosure. Boudwin v. Catania, 2008 Va. App. LEXIS 48 (Va. Ct. App. Jan. 29, 2008).

It was not inequitable to apply an alternate valuation date and certainly not an abuse of the trial court’s discretion because the husband did not submit a detailed list of funds that the parties held on the date they separated and a complete list of each expenditure that he made from those assets to prove that the expenditures were for a proper purpose; and, without explanation, the husband spent $633,868, which was four times his annual income, in less than two years. Moore v. Moore, 2020 Va. App. LEXIS 260 (Va. Ct. App. Oct. 27, 2020).

Trial court did not err by using November 26, 2019, rather than the trial date, for valuing his retirement account because the evidence showed that he withdrew $26,370 from the account on that date in violation of a pendente lite order that barred him from doing so. Fendley v. Fendley, 2021 Va. App. LEXIS 149 (Va. Ct. App. Aug. 3, 2021).

Trial court did not err in granting wife’s motion to select an alternative valuation date for husband’s partner deposit program account; fact that husband transferred what were marital funds to a personal account was sufficient to support the trial court’s finding of good cause to support an alternative valuation date, plus the trial court adjusted its division of the account to credit husband for the post-separation withdrawals that he had proven were for marital purposes. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

3.Valuation of real property.

“Half-way” value to personal property not required for home valuation. —

Because chancellor assigned a “half-way” value to those items of personal property over which the parties disagreed concerning value, the same approach was not required for the valuation of the marital home. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Determination of pre-divorce rental value. —

Gaynor v. Hird , 15 Va. App. 379, 424 S.E.2d 240 (1992), which involved an accounting in equity pursuant to § 8.01-31 , after the parties’ property was converted from ownership as tenants by the entirety to ownership as tenants in common, does not require an accounting of rental value pre-divorce when the parties own the property as tenants by the entirety. Longmyer v. Longmyer, 1995 Va. App. LEXIS 347 (Va. Ct. App. Apr. 11, 1995).

Separate valuation of land and improvements. —

Nothing in this section or in the cases that have construed it prohibits the separate classification and valuation of land and a residence constructed on the land when one constitutes separate property and the other marital property. Kelley v. Kelley, 2000 Va. App. LEXIS 576 (Va. Ct. App. Aug. 1, 2000).

A trial court erred in failing to accurately assess the increase in the value of the land on which the parties’ home was constructed where the parties agreed that the land was the husband’s separate property; the appreciation in the value of the marital residence over the past forty years was due, at least in part, strictly to a passive appreciation in the value of the real estate, and such passive appreciation should have been recognized as the husband’s separate property. Kelley v. Kelley, 2000 Va. App. LEXIS 576 (Va. Ct. App. Aug. 1, 2000).

January 1989 appraisal reflected value of home on June 1990 hearing date. —

Chancellor was not plainly wrong in giving less weight to husband’s opinion and more weight to wife’s opinion that the value of the home had not increased since the independent tax appraisal; thus, the chancellor was not plainly wrong in determining that January 1, 1989 tax appraisal reflected the value of the home on the date of the evidentiary hearing which was June 27, 1990. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Refusal to revalue. —

Trial court did not err by refusing to revalue a property and assigning it a $1,562,500 value, rather than the alleged current value of $2,700,000, as husband did not file a timely motion to revalue the property or present evidence of the current value. Parsons v. Parsons, 2013 Va. App. LEXIS 169 (Va. Ct. App. June 4, 2013).

Valuation of home. —

Trial court, as fact finder, was entitled to accept an appraiser’s value of the parties’ residence over the tax assessment value; because credible evidence supported the trial court’s valuation of the property, the appellate court found no abuse of discretion in that regard. 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).

Trial court properly accepted the opinion of the former husband’s expert as to the value of the marital residence because that expert took into account the significant repairs needed, but the wife’s expert, while acknowledging that the house had structural problems and suffered from deferred maintenance, nonetheless placed a high value on it. Stout v. Stout, 2009 Va. App. LEXIS 354 (Va. Ct. App. Aug. 11, 2009).

Circuit court properly entered an equitable distribution award and awarded attorney’s fees to the wife because the court determined the proportion of the husband’s separate share of the marital home by dividing the purchase price by the amount of his separate contributions, considered the circumstances of the case, including the amounts of attorneys’ fees incurred by the parties, the history of the case, the husband’s arguments regarding the difficulties that the wife caused during litigation, the fact that the wife was denied spousal support, and the husband’s control over the length of the litigation. Scott v. Scott, 2019 Va. App. LEXIS 251 (Va. Ct. App. Nov. 5, 2019).

Fair market rental value of marital home. —

Circuit court did not abuse the court’s discretion when the court considered the factors outlined in subsection E of § 20-107.3 and awarded a wife half of the fair market rental value of the parties’ marital home for the period that started on August 1, 2001, when the parties were separated, and ended on March 31, 2007, when the parties were divorced. The husband occupied the home during that period and refused to let his wife use the home, and she had to use her own funds to rent a separate residence. McIlwain v. McIlwain, 52 Va. App. 644, 666 S.E.2d 538, 2008 Va. App. LEXIS 424 (2008).

Trial court properly refused to value or equitably distribute a husband’s business under § 20-107.3 as while there was testimony regarding the purchase price of inventory, the value of equipment, gross sales, and one year’s profit, there was no evidence as to the value of the business. Wynn v. Wynn, 2010 Va. App. LEXIS 330 (Va. Ct. App. Aug. 10, 2010).

Assessment value. —

Circuit court did not err in valuing a farm property because the court was entitled to rely on evidence of the property’s assessed value, as an assessed value was one method of determining the value of property. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Parties must share costs of maintaining joint easement. —

Trial court abused its discretion by ruling that cost of maintaining a joint easement would rest solely on the owners across whose property the easement runs. Because both parties and their tenants would use the joint driveway easements to access the public road and the waterfront, the costs of maintaining and repairing the easements should be apportioned between the parties. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Failure to find value for property harmless error. —

Even if the trial court erred in not finding a value for property, the error was harmless because it did not affect the trial court’s award of the property or the division of the remaining marital property; after classifying the property as marital, the trial court then appropriately considered the factors of subsection E, and the value of the property was not relevant or material to the trial court’s award. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Although the circuit court erroneously classified a husband’s interest in property owned by a real estate partnership as marital, the error was harmless because the husband and the wife presented insufficient evidence to permit it to value the asset; accordingly, the circuit court’s failure to classify the asset did not affect the equitable distribution. Henderson v. Henderson, 2018 Va. App. LEXIS 132 (Va. Ct. App. May 15, 2018).

4.Valuation of businesses, stocks, etc.

Determination of value of stock. —

Trial court did not err in its determination on the evidence that the value of the stock subject to equitable distribution was $664,000; in choosing a figure somewhere between the ceiling price of $800,000 and the lowest estimate provided by the husband’s expert of $425,500 the trial judge appropriately balanced the risks and probabilities accompanying such a potential transaction. Zipf v. Zipf, 8 Va. App. 387, 382 S.E.2d 263, 6 Va. Law Rep. 17, 1989 Va. App. LEXIS 82 (1989).

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, including stock husband unquestionably owned at the time the parties separated; the court properly classified the property as marital and did not err by awarding a portion of its value to wife. Knepp v. Niece, 2003 Va. App. LEXIS 29 (Va. Ct. App. Jan. 28, 2003).

Trial court did not err in valuing the husband’s company stock, in applying the valuation method that it did, or in awarding one-half of that stock to the wife given that the stock was marital property; the valuation was supported by expert testimony and included the husband’s deferred compensation plan stock as part of the valuation. Becker v. Becker, 2007 Va. App. LEXIS 135 (Va. Ct. App. Apr. 3, 2007).

Trial court did not err in its valuation of a husband’s corporate stock because in arriving at its stock valuation, the trial court used the only evidence presented to it by the parties at trial, and both parties had ample time to prepare for the final hearing at which evidence was presented; the trial court found that the business tax return of the corporation, which showed a total of $129,535 in assets and $13,377 in liabilities, was competent evidence and determined the value of the stock was $116,158. Afsoos v. Afsoos, 2011 Va. App. LEXIS 133 (Va. Ct. App. Apr. 19, 2011).

Court must consider stock transfer restrictions in determining stock value. —

When stock is subject to transfer restrictions, the limitation created by the restrictive agreement necessarily affects the actual marketability of the stock, and thus its value; therefore, a bona fide provision or agreement must be considered when a trial court determines the value of stock for purposes of equitable distribution. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

Court must consider nonliquid nature of stock. —

Evidence of the nonliquid nature of wife’s stock in a closely-held corporation that paid no dividends and was completely controlled by the husband, did not support the conclusion that the wife’s stock interest was equal in value to the husband’s interest. Jacobs v. Jacobs, 12 Va. App. 977, 406 S.E.2d 669, 8 Va. Law Rep. 345, 1991 Va. App. LEXIS 190 (1991).

Discounting value of stock. —

Evidence concerning the effect of husband’s minority stock interest was insufficient for the trial court to discount the value of his interest where husband did not produce any evidence about whether or how the stock was to be discounted. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

In valuing a husband’s interests in companies that owned and operated hotels, the circuit court properly declined to discount the value of the husband’s shares using a method for fractional interests because the relevant value for the purposes of equitable distribution under subsection D of § 20-107.3 was the intrinsic value of the property. Patel v. Patel, 61 Va. App. 714, 740 S.E.2d 35, 2013 Va. App. LEXIS 110 (2013).

Value of shares subject to a stock transfer restriction. —

For purposes of making a monetary award, trial court correctly valued the stock of a closely held corporation whose shares were subject to a stock transfer restriction even though the court did not use the price set by the restrictive transfer provision in the corporate by-laws; trial court was not bound by the value established in the by-laws since the sale price set by restrictive provisions on transfer was not conclusive as to the value of the stock. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

Value of stock based on value of corporation’s net assets was proper. —

Where the only evidence presented of stock’s value was that shown on corporate books and the worth of corporation’s only asset, the farm valued at $147,600, the trial court properly rejected the evidence of value offered by husband of book value and his evidence that he sold it for that amount; the trial court’s determination of the value of the stock based on the value of the corporation’s net assets was reasonable and supported by credible evidence. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

Value of stock options fixed on date options exercised. —

A trial court erred in failing to value stock options held by the husband as a result of his employment as of the date of the evidentiary hearing, which was after the husband had exercised the options and the value of the asset had become fixed. Tatum v. Tatum, 2000 Va. App. LEXIS 789 (Va. Ct. App. Dec. 5, 2000).

Court was correct in not considering debt in stock value. —

Trial court was correct in failing to consider husband’s evidence of corporate debt in valuing stock; evidence was sufficient to support the finding of the trial court that the alleged debt was, in fact, capitalization of the corporation. Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104, 6 Va. Law Rep. 196, 1989 Va. App. LEXIS 117 (1989).

Entities with negative value had value of zero for purposes of equitable distribution. —

In assigning value to a husband’s interests in entities that had a negative value, the circuit court properly found that each entity had a value of zero for purposes of equitable distribution under subsection D of § 20-107.3 because there was no indication that any of the companies were insolvent or on a path towards bankruptcy and several of the companies involved brand new hotels or properties that were purchased with the intent to develop new hotels on them. Patel v. Patel, 61 Va. App. 714, 740 S.E.2d 35, 2013 Va. App. LEXIS 110 (2013).

Goodwill value of professional practice. —

If the trial court determines from the greater weight of the evidence that a professional practice has goodwill value, that amount must be subject to valuation as part of the marital property. Russell v. Russell, 11 Va. App. 411, 399 S.E.2d 166, 7 Va. Law Rep. 1106, 1990 Va. App. LEXIS 224 (1990).

Where an individual’s earning capacity exceeds his or her actual earnings, the court may consider this fact in determining the goodwill value of that person’s business. Russell v. Russell, 11 Va. App. 411, 399 S.E.2d 166, 7 Va. Law Rep. 1106, 1990 Va. App. LEXIS 224 (1990).

On appeal, trial court’s decision regarding goodwill will not be disturbed if it appears that the court made a reasonable approximation of the goodwill value, if any, of the professional practice based on competent evidence and the use of a sound method supported by that evidence. Schill v. Schill, 1997 Va. App. LEXIS 378 (Va. Ct. App. June 10, 1997).

Goodwill may be an asset of a professional practice, and if it is, it is subject to valuation for equitable distribution purposes. Howell v. Howell, 31 Va. App. 332, 523 S.E.2d 514, 2000 Va. App. LEXIS 24 (2000).

The value of goodwill can have two components: (1) professional goodwill, also designated as individual, personal or separate goodwill, which is attributable to the individual and is categorized as separate property in a divorce action; and (2) practice goodwill, also designated as business or commercial goodwill, which is attributable to the business entity, the professional firm, and may be marital property. Howell v. Howell, 31 Va. App. 332, 523 S.E.2d 514, 2000 Va. App. LEXIS 24 (2000).

Trial court did not err in ruling that a spouse’s book of business from the spouse’s employment as a financial analyst at a brokerage firm was separate property because the book of business existed prior to marriage. Peck v. Peck, 2014 Va. App. LEXIS 113 (Va. Ct. App. Mar. 25, 2014).

Finding concerning value of property held correct. —

Chancellor did not err in adopting finding concerning value of wife’s interest in business where three experts testified concerning value of property, and commissioner found one of experts to be more credible, and where finding was supported by evidence. Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533, 5 Va. Law Rep. 1301, 1989 Va. App. LEXIS 3 (1989).

Trial court did not abuse its discretion in assessing the value of a townhouse development project by failing to factor in the speculative future compensation of the spouse who retained an interest in the project. Peck v. Peck, 2014 Va. App. LEXIS 113 (Va. Ct. App. Mar. 25, 2014).

Circuit court properly determined that a 30% increase in value of a husband’s interest in his business was marital property because, while it was undisputed that the wife met her burden of proving that the husband made significant contributions of personal effort to the business during the course of the parties’ marriage and that his interest in the property substantially appreciated in value, the judge emphasized that he considered all of the evidence, that his decision was not simply a “formulaic approach,” and that he took into account not only the husband’s percentage ownership interest in the business, but also his managerial role with the company. Herbert v. Joubert, 2018 Va. App. LEXIS 222 (Va. Ct. App. Aug. 14, 2018).

Father’s assertion that the trial court failed to account for his business’s liabilities was disproven by the record because both expert witnesses estimated its liabilities, factored those liabilities into their respective valuations, and discussed those liabilities during trial. The trial court considered the business’s debt in determining its value and equitably distributed the value of the business between the parties. Sizov v. Sizov, 2020 Va. App. LEXIS 299 (Va. Ct. App. Dec. 8, 2020).

Valuation held erroneous. —

Court erred in assigning only $40 to a ring in wife’s possession which prior to the parties’ separation had been “created” by remounting stones from an engagement ring and a ring given to wife by husband after their marriage (appraised at $60), where the $900 cost of the remounting was paid for out of wife’s payroll savings account. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Trial court erred in holding that increase in value of husband’s stock in family-owned newspaper was all due to husband’s efforts, when in fact his brother’s efforts and the growth of the area contributed greatly to the worth. Rowe v. Rowe, 24 Va. App. 123, 480 S.E.2d 760, 1997 Va. App. LEXIS 42 (1997).

Where husband received more than adequate compensation in salary and stock dividends, the entire increase in value of the marital estate would not be allowed, as this would have constituted double recovery for the marital estate. Rowe v. Rowe, 24 Va. App. 123, 480 S.E.2d 760, 1997 Va. App. LEXIS 42 (1997).

Although the trial court properly valued the wife’s orthodontic practice as of the date of the evidentiary hearing based on the wife’s failure to show that the increase in value after the date of separation was due to her post-separation efforts, the trial court erred in valuing the wife’s orthodontic practice based on gross revenue. Ledwith v. Ledwith, 2004 Va. App. LEXIS 488 (Va. Ct. App. Oct. 12, 2004).

Fruits of labor are marital property. —

A partner in a marriage owes his labor during the marriage to the marital partnership, and the fruits of that labor, absent express agreement, are marital property. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Valuation of medical practice. —

Where wife’s efforts began before the medical practice opened and the court found that she made significant contributions to it during the first year, the court could find that the entire value of the medical practice was marital property and thus did not err in classifying the practice as marital property and including its entire value in its calculations of equitable distribution. Silberblatt v. Silberblatt, 1998 Va. App. LEXIS 432 (Va. Ct. App. Aug. 11, 1998), aff'd in part and rev'd in part, No. 1793-97-3, 1999 Va. App. LEXIS 434 (Va. Ct. App. July 13, 1999).

Trial court which heard a husband and wife’s divorce action did not err when it rejected the opinion of a certified public accountant the husband called as an expert witness on the value of his medical practice and accepted the opinion of a doctor the wife offered as an expert witness, or when it awarded the wife, who was married to her husband for 22 years before they separated and who raised four children with him, half the value of her husband’s medical practice. Hoebelheinrich v. Hoebelheinrich, 43 Va. App. 543, 600 S.E.2d 152, 2004 Va. App. LEXIS 376 (2004).

Trial court did not err in rejecting a net assets valuation for a medical practice for purposes of making an equitable distribution award or in rejecting an excess earnings valuation; the trial court had credible evidence to support its award based on a valuation of the practice within the range of values expressed in conflicting expert testimony. Gardner v. Gardner, 2005 Va. App. LEXIS 10 (Va. Ct. App. Jan. 11, 2005).

Valuation of accounting practice. —

On appeal from an equitable distribution of the parties’ assets, an accounting practice’s sloppy corporate recordkeeping allowed the trial court to treat it as a partnership; further, such finding was inconsistent with allowing stock ownership to govern the percentage of the accounting practice that the court classified as a husband’s, or the percentage of the husband’s interest in the accounting practice classified as marital property. Scott v. Scott, 2007 Va. App. LEXIS 454 (Va. Ct. App. Dec. 18, 2007).

Date of evidentiary hearing used to value marital accounts. —

As a former husband did not waste marital assets by using marital accounts to pay his living expenses after the parties separated, and was not required to use his separate property for that purpose, the trial court properly valued the accounts as of the trial date, not the date of separation. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Valuation of law practice. —

In valuing a former husband’s interest in his law practice for purposes of equitable distribution, the trial court did not clearly err in accepting the “bottom-up” methodology used by the former wife’s expert. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Trial court did not err in valuing a former husband’s interest in a law firm because the trial court thoroughly detailed the differing opinions of the parties’ expert witnesses and found that the wife’s expert witness was more persuasive. Brake v. Brake, 2014 Va. App. LEXIS 126 (Va. Ct. App. Apr. 1, 2014).

Trial court erred in failing to assign value to business. —

Trial court erred in not assigning a value to a husband’s business and not including it in the equitable distribution of the marital estate pursuant to § 20-107.3 because the wife presented sufficient, credible evidence on its value; the husband’s business was a marital asset that could be assigned a monetary value. Collins v. Collins, 2013 Va. App. LEXIS 26 (Va. Ct. App. Jan. 22, 2013).

Trial court erred by failing to classify and value a business where although it had understandable doubts as to the husband’s credibility, the professionally limited basis for an expert’s testimony, and the credibility of various tax returns, there was sufficient information in the record from which to value the business. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

Because the trial court found that insufficient evidence of value was presented regarding the value of the business, but inherent in the trial court’s decision to monetarily compensate the wife for her interest in the business was a finding of some value for the business, the trial court’s valuation and distribution decisions were contradictory and could not be reconciled, and the trial court erred either in concluding that the evidence did not allow it to determine a value for the business or in compensating the wife for an asset it had concluded could not be valued because of a lack of evidence. Hassell v. Hassell, 2016 Va. App. LEXIS 310 (Va. Ct. App. Nov. 15, 2016).

Error to accept value based on speculation. —

A trial court’s acceptance of a wife’s valuation of her husband’s business was not supported by substantial, competent and credible evidence where, after initially stating that she did not know the value of the business, the wife gave a specific figure in response to her attorney’s request that she give her “best estimate” and where the wife also testified that she was not involved in the operation of the business, never had access to the books, did not know if the business made a profit, and never saw any proceeds from the business. Snider v. Snider, 2001 Va. App. LEXIS 19 (Va. Ct. App. Jan. 16, 2001).

Burden to present evidence of valuation. —

See Davis v. Davis, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

C.Classification.

1.Burden of proof and marital presumption.

Rebuttable presumption of marital property. —

While property acquired by either party prior to the last separation is presumed to be marital, the presumption is rebuttable, and it may be shown to be separate because it comes within the definition of separate property or because it was not acquired during the marriage. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

All property acquired by either spouse during the marriage and before the last separation of the parties is presumed to be marital property. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

Court erred finding a condominium was separate property under subdivision A 3 d of § 20-107.3 , because, while the husband may have adequately retraced rental payments to accounts used to pay the mortgage payments, he failed, as a matter of law, to retrace the funds as his separate property; the evidence failed to rebut the marital property presumption. Scott v. Scott, 2004 Va. App. LEXIS 4 (Va. Ct. App. Jan. 6, 2004).

Trial court properly awarded a former husband a share of the proceeds from a former wife’s sale of certain real estate because the finding that the residence was maintained as marital property was not plainly wrong; the evidence established that the property was purchased as the parties’ marital home during the marriage and that the husband made substantial repairs to the property as well as contributing over $30,000 in mortgage payments. Budzyn v. Johnson, 2008 Va. App. LEXIS 304 (Va. Ct. App. June 24, 2008).

Because the parties purchased their former marital residence during their marriage, it was presumed to be marital property. Cano v. Davidson, 2014 Va. App. LEXIS 128 (Va. Ct. App. Apr. 1, 2014).

Presumption unrebutted when evidence of interspousal gift lacking. —

When evidence of intent to relinquish all present and future dominion over the property so as to remove it from the marital estate is lacking, the presumption of this section that property acquired by either spouse during a marriage is marital remains unrebutted. Kelln v. Kelln, 30 Va. App. 113, 515 S.E.2d 789, 1999 Va. App. LEXIS 400 (1999).

Effect of marital property presumption. —

Presumption that only property acquired prior to the last separation shall be presumed to be marital property is not simply an evidentiary tool that assigns the burden of proof or burden of going forward with the evidence to a particular party, rather, the presumption is substantive, in that it delineates when the marriage or partnership will be presumed to have ended for purposes of classifying property as marital (partnership) or separate (individual). Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Burden of proof. —

This section mandates that trial courts determine the ownership and value of all real and personal property of the parties, but the litigants have the burden to present evidence sufficient for the court to discharge its duty; when the party with the burden of proof on an issue fails for lack of proof, he or she cannot prevail on that question. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

As for classification of the remaining shares, all property acquired by either spouse during the marriage “is presumed to be marital property in the absence of satisfactory evidence that it is separate property;” but, if the donee presents “sufficient evidence,” and the other party presents no evidence to the contrary, the statutory presumption of marital property is rebutted. Challoner v. Challoner, 1997 Va. App. LEXIS 202 (Va. Ct. App. Apr. 1, 1997).

The party claiming that property acquired during the marriage should be classified as separate has the burden to produce satisfactory evidence to rebut the presumption that such property is marital property. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

Although the burden of proof that the transfer of the former husband’s separate property was a gift was on the former wife because she was seeking to establish the gift, and although no presumption of gift arose from the fact that the former husband and the former wife had his separate property retitled in their names, the language of the deed of gift showed that the former husband clearly intended to transfer the separate property to the marital estate as a gift, and, thus, the appellate court erred in concluding that parol evidence was admissible to determine the husband’s intent in executing the deed of gift, as the wife carried the burden of showing that a gift to the marital estate was intended. Utsch v. Utsch, 266 Va. 124 , 581 S.E.2d 507, 2003 Va. LEXIS 57 (2003).

In a divorce proceeding, an ex-husband argued unsuccessfully that the trial court erred in finding that his interests in two partnerships were marital property and not his separate property. He did not exchange or sell his interest in one partnership to acquire an interest in the two partnerships at issue; therefore there was no exchange, and the ex-husband failed to rebut the presumptions that the two partnerships, which were acquired during the marriage, were marital property. Dougherty v. Dougherty, 2009 Va. App. LEXIS 443 (Va. Ct. App. Oct. 6, 2009).

Appellate court erred in finding that a wife had the burden of proof to show that the increase in value in the husband’s separate brokerage account was due to the husband’s personal efforts for the appreciation to constitute marital property; this section did not include causation as an issue upon which the non-owning spouse had a burden of proof. David v. David, 287 Va. 231 , 754 S.E.2d 285, 2014 Va. LEXIS 24 (2014).

This section does not place an initial burden on the non-owning spouse who seeks to establish that an appreciation in value of separate property during marriage is marital property to prove that significant personal efforts or marital contribution caused a substantial increase in the value of the separate property; this section places the burden of disproving causation on the owning spouse, once the non-owning spouse makes a prima facie showing of the spouse’s personal efforts during the marriage or the contribution of marital property and an increase in value of the separate property, and any portions of the appellate court’s decisions that are inconsistent with this ruling are overruled. David v. David, 287 Va. 231 , 754 S.E.2d 285, 2014 Va. LEXIS 24 (2014).

Trial court did not err in holding that one spouse did not offer competent, credible evidence that any portion of the parties’ house was marital property, and thereby, classifying the house as the other spouse’s separate property. The house was purchased before the marriage in the other spouse’s name and the spouse failed to trace the marital contributions for reductions in principal of the mortgage and home equity line. Emami v. Harlowe, 2014 Va. App. LEXIS 388 (Va. Ct. App. Nov. 25, 2014).

Husband failed to overcome presumption stock was marital property. —

In a divorce action, the former husband’s shares in a professional corporation, purchased in part with marital funds and in part with separate funds, were improperly classified as primarily separate property because the husband’s tracing evidence did not show that, when he sold some of the shares as new doctors joined his medical practice, the remaining shares were maintained as separate property under clause (iii) of subdivision A 1 of § 20-107.3 ; he offered neither direct nor contemporaneous circumstantial evidence to show that he intended to sell only marital shares and to leave his separate shares untouched, and the shares were therefore presumptively marital assets. Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 2006 Va. App. LEXIS 343 (2006).

Trial court had no choice but to classify a husband’s shares of corporate stock as marital property in light of the presumption that property acquired during a marriage was marital property unless shown to be separate property because the husband did not provide enough evidence to allow the trial court to determine what part, if any, of the stock was separate property; the husband received the stock in exchange for a tract of land, and the transfer of a second tract of land into the corporation increased the value of the stock, but the stock was a new asset that came into being and into the husband’s possession during the marriage. Showalter v. Showalter, 2009 Va. App. LEXIS 78 (Va. Ct. App. Feb. 17, 2009).

Trial court erred in its classification of stock as the husband’s separate property because the husband admitted that the stock was purchased during the marriage with family business funds, which were commingled with marital assets, and the husband did not offer evidence that the stock was his separate property; accordingly, the stock was presumed marital. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Burden of proving that property purchased after last separation is marital is on the proponent and the presumption that property is marital ceases on the date of the de facto dissolution of the marital partnership. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Under generally accepted principles, the party claiming property as separate has the burden to produce satisfactory evidence to rebut the presumption that all property acquired by either spouse during the marriage is presumed to be marital property in the absence of satisfactory evidence that it is separate property. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

Burden of party removing joint funds. —

A spouse who removes joint marital funds and converts them to his or her own dominion and control has the burden of establishing by a preponderance of the evidence the purpose. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Burden of proving retraceability. —

Because all property acquired by either spouse during the marriage and before the last separation of the parties is presumed to be marital property, the party claiming a separate interest in transmuted property bears the burden of proving retraceability; if the party claiming the separate interest in transmuted property proves retraceability, the burden shifts to the other party to prove that the transmutation of the separate property resulted from a gift. Von Raab v. Von Raab, 26 Va. App. 239, 494 S.E.2d 156, 1997 Va. App. LEXIS 761 (1997).

The party claiming a separate interest in transmuted property bears the burden of proving retraceability. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000); Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Due to multiple transactions over the years that commingled a husband’s separate property with marital property, the trial court did not abuse its discretion in finding that the husband could not retrace his separate funds. Plasker v. Dean, 2005 Va. App. LEXIS 397 (Va. Ct. App. Oct. 11, 2005).

Although former husband failed to meet his burden to show a separate interest in property equity acquired during his marriage by retracing those funds to separate funds, the husband did meet his burden to show that another property was separate property in that there was no evidence to support a finding of a gift to wife and minimal funds came from marital accounts. Smith v. Thornton-Smith, 2007 Va. App. LEXIS 82 (Va. Ct. App. Mar. 6, 2007).

Burden of proof as to debts. —

In a case in which a husband appealed an equitable distribution ruling of the trial court, he argued unsuccessfully that the trial court erred in finding that $44,000 of the wife’s student loans was marital property and that he should pay wife $11,000 as his share of the debt. While the husband argued that he should not be responsible for the student loans because he would not benefit from wife’s education, he had the burden to prove that $44,000 of wife’s student loans was her separate debt, and the family benefited from the student loans because the funds went toward family expenses. Layne v. Layne, 2009 Va. App. LEXIS 468 (Va. Ct. App. Oct. 20, 2009).

Traditional rules concerning the allocation of the burden of proof apply with regard to marital liabilities because no presumption existed with respect to the classification of debts incurred by spouses during marriage, individually or jointly, under § 20-107.3 .Gilliam v. McGrady, 279 Va. 703 , 691 S.E.2d 797, 2010 Va. LEXIS 48 (2010).

Burden is always on the parties to present sufficient evidence to provide the basis on which a proper determination can be made, and the trial court in order to comply with this section must have that evidence before it before determining to grant or deny a monetary award. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

Burden on party charged with creating encumbrance. —

As with cases involving the dissipation of assets, when an aggrieved spouse shows that marital assets were encumbered by debt at a time when the marriage is undergoing an irreconcilable breakdown, the burden is on the party charged with creating the encumbrance to prove that it was created and used for a proper purpose. Schill v. Schill, 1997 Va. App. LEXIS 378 (Va. Ct. App. June 10, 1997).

Husband did not meet burden of proving that profit-sharing plan was separate property. —

Trial court had discretion to conclude that separation from wife occurred after husband’s profit-sharing plan began and to declare entire plan balance as marital when husband failed to provide evidence sufficient to determine how much of the plan was his separate property. Luczkovich v. Luczkovich, 26 Va. App. 702, 496 S.E.2d 157, 1998 Va. App. LEXIS 105 (1998).

Husband failed to overcome presumption stock was marital property. —

Husband failed to overcome the presumption that certain stock, which was acquired during the marriage, was marital property where his testimony failed to establish that real property proceeds, which were used to purchase the stock, were maintained as separate property. Taylor v. Taylor, 9 Va. App. 341, 387 S.E.2d 797, 6 Va. Law Rep. 1211, 1990 Va. App. LEXIS 11 (1990).

Trial court erred in classifying stock in family business as husband’s separate property, where husband failed to prove by clear and convincing evidence that he acquired stock by gift from his father, rather than by sale. Underwood v. Angle, 1999 Va. App. LEXIS 509 (Va. Ct. App. Aug. 31, 1999).

Husband rebutted presumption that stock given by father was marital property. —

Where husband contended that the 451 shares of stock given during the marriage by father to husband were intended as a gift, where these shares were titled only in his name, and were always intended to be separate property, and where wife presented no evidence contrary to husband’s evidence that the 451 shares from his father’s gift were intended to be separate property, husband rebutted the presumption that the 451 shares of stock from his father given during the marriage were marital property. Huger v. Huger, 16 Va. App. 785, 433 S.E.2d 255, 10 Va. Law Rep. 53, 1993 Va. App. LEXIS 315 (1993).

Presumption of marital property not rebutted where evidence conflicting. —

Where the commissioner in chancery stated that although there was some evidence presented by the husband that the house was separate property, having allegedly been purchased with husband’s parents’ money, but the evidence showed that he commingled debt liability, funds and joint income, with regard to this property, to the point that it was marital property, due to the conflicting evidence presented to the commissioner concerning this issue, the trial court did not err in finding that the husband failed to rebut the presumption that the house was marital property. Corrigan v. Corrigan, No. 1272-85 (Ct. of Appeals Dec. 4, 1986).

Failure to rebut presumption. —

Because the vehicles were acquired during the marriage, and before the last separation of the parties, the husband bore the burden of producing satisfactory evidence to rebut the presumption that these assets were marital property pursuant to subdivision A 2 of § 20-107.3 . Because the husband did not provide any evidence to rebut the statutory presumption, the circuit court erred in classifying the vehicles as the husband’s separate property. Lightburn v. Lightburn, 2009 Va. App. LEXIS 459 (Va. Ct. App. Oct. 13, 2009).

Because accounts came into existence significantly after the parties married, the accounts were presumed to be marital; the record supported the circuit court’s classification of the accounts as marital because the husband did not bear his burden of proving that the funds in the accounts were his separate funds. Henderson v. Henderson, 2018 Va. App. LEXIS 134 (Va. Ct. App. May 15, 2018).

Trial court properly classified the condominium as marital property subject to equitable distribution as the ex-husband acquired the condominium during the marriage, making it presumptively marital property; and the trial court was free to reject the husband’s testimony regarding the down payment of the condominium, which he stated was made with non-marital funds, namely a loan from his father for that specific purpose. Hodges v. Hodges, 2019 Va. App. LEXIS 302 (Va. Ct. App. Dec. 17, 2019).

Trial court did not err in apportioning the husband’s TSP by failing to classify his premarital funds as separate property and implicitly finding he had to trace those funds because the only account statements he produced were dated after the parties were married; he failed to introduce account statements showing the account activity during most of the marriage, preventing the trial court from tracing any separate premarital contributions; and the property was presumed to be marital in the absence of satisfactory evidence that it was separate. Moore v. Moore, 2020 Va. App. LEXIS 260 (Va. Ct. App. Oct. 27, 2020).

Post-separation mortgage payments. —

Husband did not meet his burden of proving, under § 20-107.3 A 3 d, that he made post-separation mortgage payments on marital property from his separate funds. Biviano v. Kenny, 2002 Va. App. LEXIS 157 (Va. Ct. App. Mar. 12, 2002).

Property acquired after separation presumed separate. —

Property acquired after the last separation is presumed to be separate property but a party claiming property acquired after separation can overcome the presumption by establishing that the property was acquired while some vestige of the marital partnership continued or was acquired with marital assets. Ott v. Ott, 2001 Va. App. LEXIS 10 (Va. Ct. App. Jan. 16, 2001).

For personal labor or marital funds contributed to property to be “significant” and to cause or result in a substantial increase in value, without proof to the contrary, the personal labor or marital funds must amount to more than customary care, maintenance, and upkeep. Ott v. Ott, 2001 Va. App. LEXIS 10 (Va. Ct. App. Jan. 16, 2001).

The party claiming property to be separate must: (1) establish the identity of a portion of hybrid property; and (2) directly trace that portion to a separate asset; this tracing does not require the segregation of the separate portion but, even if a party can prove that some part of the asset is separate, if the court cannot determine the separate amount, the unknown amount contributed from the separate source transmutes by commingling and becomes marital property. Ott v. Ott, 2001 Va. App. LEXIS 10 (Va. Ct. App. Jan. 16, 2001).

Separate, personal property in possession of other party. —

Trial court erred in classifying certain personal property as the wife’s separate property because, although economical, the trial court’s resolution of the issue by simply awarding the parties the personal property in their respective possession did not sufficiently account for items of personal property that the parties acknowledged were, at least at one time, the separate property of the husband but were in the wife’s possession; thus, the trial court’s finding that the contested items of personal property in the wife’s possession was her separate property was reversed. Hassell v. Hassell, 2016 Va. App. LEXIS 310 (Va. Ct. App. Nov. 15, 2016).

2.Classification generally.

Trial courts cannot avoid their statutory mandate to classify each asset as marital, separate, or part separate and part marital. The trial court must also place a value on the assets, including the stock. Martin v. Martin, 1995 Va. App. LEXIS 822 (Va. Ct. App. Nov. 7, 1995).

Equitable distribution award could not be reviewed because the trial court failed to classify a credit union account as marital, separate, or hybrid; the equitable distribution award was reversed and the issue was remanded for classification of the account and for further consideration by the trial court using § 20-107.3 as a guide. Whitaker v. Whitaker, 2006 Va. App. LEXIS 494 (Va. Ct. App. Oct. 31, 2006).

Character of property at acquisition governs classification. —

Generally, the character of property at the date of acquisition governs its classification pursuant to this section. Stratton v. Stratton, 16 Va. App. 878, 433 S.E.2d 920, 10 Va. Law Rep. 127, 1993 Va. App. LEXIS 337 (1993).

Trial court erred in classifying the bulk of the husband and wife’s property as marital property, where the parties did not dispute that the property was acquired through use of the husband’s trust income, which was his separate property; the husband was able to retrace those assets to his separate property, the wife did not show that the assets were a gift to the marital estate, and the wife did not show that she substantially improved the value of the assets, and, thus, the assets retained the character at the time he acquired them of being his separate property. Robinson v. Robinson, 46 Va. App. 652, 621 S.E.2d 147, 2005 Va. App. LEXIS 492 (2005).

Classification of property destroyed in fire. —

Trial court did not err in determining value of marital property destroyed in fire based on acquisition dates submitted by husband to insurance company. Cline v. Cline, 1999 Va. App. LEXIS 403 (Va. Ct. App. June 29, 1999).

Interspousal gifts. —

Legislature expressly provided in subdivision A 1 of this section that interspousal gifts be classified as marital property. Silberblatt v. Silberblatt, 1999 Va. App. LEXIS 434 (Va. Ct. App. July 13, 1999).

To establish that a spouse made a gift of separate property so as to transmute the property into marital property, the donee spouse must prove by clear and convincing evidence the intention on the part of the donor spouse to make the gift. Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Wife did not prove that funds in the husband’s investment account, from which he paid a loan on the marital home, were a gift to her, under § 20-107.3 A 3 g, by virtue of the fact that the account was jointly owned or because money from that account was transferred to other accounts which the parties’ jointly owned. Turonis v. Turonis, 2003 Va. App. LEXIS 130 (Va. Ct. App. Mar. 11, 2003).

Because a husband’s mere retitling of separate property into joint ownership did not create a presumption that a gift was intended, the wife did not prove as a matter of law that the husband made a gift of the property. Barnard v. Barnard, 2005 Va. App. LEXIS 440 (Va. Ct. App. Nov. 1, 2005).

Evidence was insufficient that a former husband made a gift to his former wife of an interest in a vehicle because the evidence did not prove the requisite donative intent and it was just as plausible that the husband desired for the wife to have the use of a safe, economical car for her travels and did not intend to make a gift of the car itself or any portion thereof. Smith v. Thornton-Smith, 2007 Va. App. LEXIS 82 (Va. Ct. App. Mar. 6, 2007).

Trial court’s finding that a husband had donative intent with respect to the marital residence was not plainly wrong or without evidence to support it because the residence was jointly titled in the husband’s and wife’s names, the couple agreed together to pay off the mortgage since they “loved the house,” and the husband and wife allocated the way in which they spent their funds to achieve their jointly desired goal; that evidence was sufficient to support the trial court’s finding that the husband intended to gift to the marital estate his separate interest in the funds that were used to purchase and pay off the mortgage on the marital residence. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Trial court erred in classifying a car as a wife’s separate property because the car was properly classified as marital property under § 20-107.3 (A)(3)(f); the car was a gift because the wife testified that she typically drove the car and that the husband asked to borrow the car when he wished to drive it. Pratt v. Pratt, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

In the case of a gift to one of the spouses, if there is credible evidence presented to show that the property was intended by the donor to be the separate property of one of the spouses, the presumption is overcome, and the burden shifts to the party seeking to have the property classified as marital to show a contrary intent on the part of the donor. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

No presumption of gift arises from the fact that the property was retitled. Because the ordinary presumptions to interspousal gifts did not apply, the wife had to prove the existence of a gift. Theismann v. Theismann, 22 Va. App. 557, 471 S.E.2d 809, 1996 Va. App. LEXIS 443 (1996).

A party claiming entitlement to rights and equities in marital property by virtue of an interspousal gift must prove the donative intent of the donor spouse and the nature and extent of the donor’s intention. Lightburn v. Lightburn, 22 Va. App. 612, 472 S.E.2d 281, 1996 Va. App. LEXIS 449 (1996).

Based on the unambiguous language in the trust that upon the death of the wife’s father and his wife’s death, the small farm would pass to his daughter, in its equitable division of property in the parties’ divorce, the trial court did not err in finding that the small farm was the wife’s separate property. Jones v. Jones, 2012 Va. App. LEXIS 317 (Va. Ct. App. Oct. 9, 2012).

Trial court in a divorce case was not plainly wrong in finding that money from a wife’s parents was a gift to both the husband and the wife at the time when it was made because, despite testimony that the money was meant as a gift only to the wife, credible evidence supported the finding that the parents gave the money towards a down payment to allow the husband and wife to purchase a house. Burgess v. Burgess, 2019 Va. App. LEXIS 18 (Va. Ct. App. Jan. 22, 2019).

Donative intent must be established. —

The record failed to support husband’s position that proceeds from three notes constituted gifts to him from his parents and should have been determined his separate property, as the evidence presented proved neither donative intent nor a donative act on the part of his parents. Garrett v. Garrett, 2004 Va. App. LEXIS 513 (Va. Ct. App. Nov. 2, 2004).

Trial court’s conclusion that there was not a corporate intent to gift shares in a corporation held by a husband’s mother to the husband and his brother was plainly wrong and unsupported by the evidence. Notwithstanding the label of a sale in the corporate minutes and the existence of token consideration, a variety of factors indelibly marked its true nature as a gift: (1) The corporate minutes, signed by all three directors, reflected that when the corporation redeemed the stock of the mother, it sold two hundred shares to husband and his brother not at fair market value, but at par value of one dollar per share; (2) All three directors testified they understood the transaction to represent a gift; (3) The trial court specifically found that the mother, as the sole shareholder, intended to make a gift, and the mother’s testimony supported this finding. Sfreddo v. Sfreddo, 59 Va. App. 471, 720 S.E.2d 145, 2012 Va. App. LEXIS 13 (2012).

Interspousal gift may create separate property. —

Where the facts clearly and unambiguously support the conclusion that one of the parties has relinquished all right and interest in marital property and has transferred those rights unconditionally to the other, to the exclusion of the donor’s continuing claim upon the property as marital property pursuant to this section, a separate property right will be found to exist. Kelln v. Kelln, 30 Va. App. 113, 515 S.E.2d 789, 1999 Va. App. LEXIS 400 (1999).

Trial court did not abuse its discretion in awarding a Vermont property to a wife as her separate property as she proved that the property was originally a gift to her and that although it was titled in the parties’ names, it was to be kept separate for the benefit of the family; the wife traced the property from the husband’s sale to non-related buyers directly back to her receiving it as a gift, and her evidence was sufficient for the trial court to find that she overcame the presumption that the property was marital property. Dibich v. Dibich, 2004 Va. App. LEXIS 209 (Va. Ct. App. May 4, 2004).

Commissioner’s report failed to fully specify the marital, separate and hybrid interests of the parties in all properties in dispute, with attendant values, including particulars of the savings plan and residence and related transmutation/tracing issues. Under such circumstances, the court of appeals was unable to conduct a proper appellate review of the disputed award and had to reverse the decree and remand for further consideration by the court, guided by this section. DeWald v. DeWald, 1998 Va. App. LEXIS 65 (Va. Ct. App. Feb. 3, 1998).

Request for percentage distribution was abandonment of separate property request. —

Where husband contended that his contributions were “retraceable” and should have been classified as his separate property, husband’s appellate contention on the issue of classification was belied, and and procedurally barred, by the position he took in requesting the commissioner in chancery to recommend a percentage distribution of both parcels in their entirety. The request for a percentage distribution of the entire value of the parcels was, by its very nature, an abandonment of a request that the commissioner determine certain portions of the parcels to be separate property and thus, by definition, not subject to distribution. Maxey v. Maxey, 1997 Va. App. LEXIS 629 (Va. Ct. App. Sept. 23, 1997).

Assets wasted in anticipation of separation or divorce. —

While it is generally held that only property owned by the parties at the time of the last separation is classified as marital property, in the case of assets wasted in anticipation of separation or divorce, equity can only be accomplished if the party who last had the funds is held accountable for them; once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose. Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257, 7 Va. Law Rep. 78, 1990 Va. App. LEXIS 143 (1990).

While one spouse’s testimony that the spouse spent money from a retirement account on support and legal fees supported the circuit court’s ultimate decision that the spouse did not waste these marital funds, the circuit court did not err in finding that the spouse committed waste of the balance of the marital funds the spouse withdrew when the spouse did not more specifically account for the use of the funds. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Husband’s payment of separate debt with marital property was classified as dissipation. —

When a husband paid a debt acquired after separation, to cover his separate federal tax debt, with marital property, such should have been treated by the trial court as a dissipation of marital property for a non-marital purpose after the last separation; thus, the matter was remanded as to this issue. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Dissipation of assets not found. —

Where expenditures made by husband during the course of his fifteen-year extramarital affair were not specifically for the purpose of depleting the marital estate and where there was no evidence that there was an irreconcilable breakdown of the marriage, the trial court did not err by finding that wife failed to show that husband’s pre-separation expenditures constituted dissipation of marital assets. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

Although statutory and case law permit the wife to receive credit for marital funds expended by husband after the formal marital breakdown, the evidence presented in the instant case was insufficient to justify such an award. Although husband admitted that his paramour accompanied him periodically on trips, he testified that some of these were reimbursed business trips. Wife’s evidence failed to show which post-separation trips involved husband’s paramour and of those that did, whether they were reimbursed business expenses or paid for out of marital funds. Therefore, the trial court did not err in refusing to hold that husband dissipated marital funds either before or after the separation. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

Former wife’s claim that her former husband had committed waste by transferring certificates of deposit to his father before the breakdown of the marriage failed, as the evidence showed that the husband did not own them at the time of separation and that they were not subject to equitable distribution. Scarberry v. Scarberry, 2009 Va. App. LEXIS 28 (Va. Ct. App. Jan. 27, 2009).

Spouse’s use of funds did not constitute dissipation of marital assets because all the evidence showed that the spouse’s use of the funds occurred before the marital breakdown and, in fact, largely precipitated it. Mosteller v. Brooks, 2008 Va. App. LEXIS 565 (Va. Ct. App. Dec. 23, 2008).

The mere fact that husband discontinued gifts to the wife’s family does not mean that the continued gifts to his own family constituted waste. Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407, 10 Va. Law Rep. 203, 1993 Va. App. LEXIS 405 (1993) (see also Decker v. Decker, 22 Va. App. 486, 471 S.E.2d 775, 1996 Va. App. LEXIS 410 (1996)).

A court may not arbitrarily refuse to classify or evaluate marital or separate property where sufficient evidence to do so is in the record. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

Investment of proceeds from sale of husband’s prior home in new home titled to husband and wife did not constitute a gift of those proceeds to the wife. Rowe v. Rowe, 24 Va. App. 123, 480 S.E.2d 760, 1997 Va. App. LEXIS 42 (1997).

Classification of home. —

The mere fact that husband maintained a separate bank account for the funds to be used in the home’s initial construction did not in and of itself transmute the marital property into husband’s separate property. DeHaven v. DeHaven, 1997 Va. App. LEXIS 208 (Va. Ct. App. Apr. 8, 1997).

Despite husband’s contentions, the evidence demonstrated that the home and the land, once deeded to husband and wife, remained marital. Neither party treated it otherwise. At the time of conveyance, or any time thereafter, husband could have documented his interests to reflect his belief of a separate ownership interest. Neither he nor his parents did so. And at no time during the marriage did either party indicate in any way that husband possessed a separate interest in the home or that he possessed a greater share in the home’s value due to his contributions. DeHaven v. DeHaven, 1997 Va. App. LEXIS 208 (Va. Ct. App. Apr. 8, 1997).

Evidence supported the trial court’s finding that a residence was the husband’s separate property where he owned the land and completed a substantial portion of the construction of the home prior to the parties’ marriage, he paid for the home entirely from his separate funds, and the property was titled in his name. St. Clair v. St. Clair, 1999 Va. App. LEXIS 29 (Va. Ct. App. Jan. 19, 1999).

Although a husband contributed almost $30,000 to finance construction of an addition to a house his wife owned, the addition did not become marital property because the parties used their separate property to finance construction, they did not make nonmonetary contributions to construction that substantially increased the value of the house, and the wife refused to retitle the house, and the trial court erred by finding that the addition was marital property and awarding the husband a property interest in the addition when the parties divorced. Fowlkes v. Fowlkes, 42 Va. App. 1, 590 S.E.2d 53, 2003 Va. App. LEXIS 677 (2003).

Circuit court did not err in its valuation of the marital home; the circuit court used husband and wife’s separation date as the classification date and classified the marital home as marital property as of that time, but because the wife made subsequent mortgage payments from her own salary, the circuit court considered those mortgage payments as wife’s separate property and ultimately classified the marital residence as hybrid property. Westfall v. Westfall, 2008 Va. App. LEXIS 34 (Va. Ct. App. Jan. 22, 2008).

Trial court properly found that an earnest money deposit for the purchase of the marital residence came from the wife’s separate property and that the down payment on the marital residence came from marital property where the husband’s contention that the down payment funds were a gift from his parents was not credible. Olsen v. Mackay, 2010 Va. App. LEXIS 155 (Va. Ct. App. Apr. 27, 2010).

Marital residence was acquired during the marriage and titled in both parties’ names and thus, it was presumed to have been marital property under subdivision A 2 of § 20-107.3 . The husband failed to meet his burden of proving that the marital residence was his separate property and accordingly, the trial court did not err in classifying the marital residence as marital property. Harnois v. Riley-Harnois, 2011 Va. App. LEXIS 311 (Va. Ct. App. Oct. 11, 2011).

Trial court erred in classifying a house as marital property because pursuant to § 20-111 , upon dissolution of the marriage, the husband and wife owned the home as tenants in common; because the husband’s undivided one-half interest in the house was acquired prior to the marriage, it was separate property under § 20-107.3 , but the one-half interest the wife owned upon the divorce and obtained by the husband after the marriage was presumptively marital property under § 20-107.3 , and it could not be determined from the record the exact manner by which the husband acquired the wife’s half-interest in the home. Pratt v. Pratt, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

Competent evidence required. —

Finding in favor of the husband in the parties’ action for divorce was proper because the trial court did not err in rejecting certain documents since the national stamp and the certification did not meet the requirements of § 8.01-390 ; the documents were not authenticated as true copies by their custodian or by a person to whom the custodian reported. Without competent evidence of the character of the property, its ownership, and its value, the trial court did not classify or divide it. Parikh v. Parikh, 2011 Va. App. LEXIS 209 (Va. Ct. App. June 21, 2011).

In absence of classification evidence, property is classified as marital. —

If no evidence is presented upon which a chancellor could properly identify and then classify an item as separate or marital property, faced with the statutory presumption and the lack of satisfactory evidence to rebut it, the chancellor must classify the property as marital. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Donative intent to exclude not shown. —

Husband failed to meet the burden to show a donative intent on the part of his mother, when she deeded her home to her sons and daughters in law to exclude wife, as the property was deeded to both husband and wife and was given during the marriage, and thus was presumed to be marital property under subdivision A 1 of § 20-107.3 .Blevins v. Blevins, 2002 Va. App. LEXIS 281 (Va. Ct. App. May 7, 2002).

Parol evidence to show intent wrongly excluded. —

Trial court erred by finding that a husband and wife’s marital residence was wholly marital property based on its conclusion that a deed of gift which the husband executed and which retitled property the husband brought to the marriage to the husband and wife as tenants by the entirety was unambiguous, conclusive on its face, and established donative intent, and by excluding parol evidence which the husband offered to explain the circumstances surrounding execution of the deed. Utsch v. Utsch, 38 Va. App. 450, 565 S.E.2d 345, 2002 Va. App. LEXIS 367 (2002), rev'd, 266 Va. 124 , 581 S.E.2d 507, 2003 Va. LEXIS 57 (2003).

Treatment of separate assets. —

Trial court properly treated an investment account and certain stock as two separate assets because the parties’ experts submitted reports and provided testimony to the trial court that treated them as separate assets, essentially inviting the trial court to treat them separately as well. McConnell v. McConnell, 2019 Va. App. LEXIS 182 (Va. Ct. App. July 30, 2019).

Property titled in names of both parties is marital property, and all marital property is subject to equitable distribution. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Trial court had authority to divide jointly-titled properties. —

Trial court did not err by dividing jointly-titled property into three parcels, one to husband, a second of equal value to wife, and a third to husband and wife as tenants in common, rather than allotting the whole property to husband in exchange for his agreement to purchase wife’s interest at fair market value. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Property titled in one spouse’s name. —

Circuit court did not have the authority to order one spouse to transfer a one percent interest in a commercial real estate partnership to the other spouse because the property was titled only in the one spouse’s name. However, on remand the circuit court was to consider the impact of the partnership interest remaining in the one spouse’s name on the equitable distribution between the parties. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Trial court could take into account contributions of wife and mother to property. —

Trial court’s decision to award wife an equal in-kind share of jointly-titled property was not error in view of her monetary and non-monetary contributions to the acquisition, improvement, maintenance, and construction on the property, including the monetary contributions from her mother, who both parties contemplated was to live on the property for her lifetime. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Business salvaged by spouse deemed marital property. —

As husband’s business had a negative value at the time of the marriage and wife’s administrative and organizational skills and efforts salvaged the business and caused it to increase in value, the entire value of the business was properly deemed marital. Banks v. Banks, 2001 Va. App. LEXIS 452 (Va. Ct. App. July 31, 2001).

Business held not separate. —

Having failed to argue at trial that the husband’s interest in a business was his separate property and having failed to object at trial to the trial court’s classification of his interest as marital property, the husband failed to preserve for appeal the issue that the business was his separate property; thus, the appellate court declined to address the husband’s argument that his interest in the business should not have been classified as marital property. Hassell v. Hassell, 2016 Va. App. LEXIS 310 (Va. Ct. App. Nov. 15, 2016).

Funds withdrawn from business bank account. —

Trial court did not err in refusing to classify and distribute money the wife withdrew from the business’s bank account as it was not an asset of either the husband or the wife. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

Other partner lacks rights in separately acquired property. —

Property acquired by one partner totally separate and apart from the marital partnership does not imbue the other partner or spouse with rights and equities in such property. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Method for classifying bank account funds. —

Trial court erred in using § 6.1-125.3 [now § 6.2-606 ], a banking statute relevant to controversies between the account holders and their creditors, to determine the status of the funds in the account for equitable distribution purposes. Subdivision A 3 d of this section, which allows for retracing of separate contributions to marital property, is the applicable section. Tschippert v. Tschippert, 1995 Va. App. LEXIS 514 (Va. Ct. App. June 13, 1995).

Classification of capital account. —

Because the record did not establish that separate property was commingled with marital property, the trial court’s classification of the post-separation increase in husband’s law firm capital account as marital property was not erroneous. Schill v. Schill, 1997 Va. App. LEXIS 378 (Va. Ct. App. June 10, 1997).

Financial accounts. —

Fashion in which the trial court weighed the subsection E factors in the division of property did not constitute an abuse of discretion regarding: (1) the parties’ joint bank account and individual accounts; and (2) the mortgage loan which was in the husband’s name. Mosteller v. Brooks, 2008 Va. App. LEXIS 565 (Va. Ct. App. Dec. 23, 2008).

Remand of a matter for a circuit court to conduct a retracing analysis was necessary because, following transactions between the parties’ accounts, the court erred in finding that the funds in particular accounts were entirely marital or separate property. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Whether valuable consideration given in exchange for property decides whether gift or sale. —

While equitable distribution is not bound by title, but rather is concerned with the value of whatever interest parties have acquired, whether valuable consideration or marital property is given in exchange for the acquired property interest is significant in deciding whether the conveyance was a gift or a sale. If a gift, then the property interest is generally separate property, unless it has been transmuted; if the conveyance is a sale, the property will generally be considered marital property. Roach v. Roach, No. 0006-92-3 (Ct. of Appeals Sept. 8, 1992).

Where the debt is secured by an encumbrance on specific property which is classified as marital property, the amount of the indebtedness should be deducted from the unencumbered value of such property; the trial courts can then determine the “value” of the “marital” property for purposes of a monetary award. Where the debt is not secured by an encumbrance on the marital property, the debt must nevertheless be considered by the court, but the debt does not reduce the value of the marital property. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

Classification of automobile purchased prior to marriage. —

Where there was both an express, but unfulfilled, agreement to retitle husband’s automobile in both parties names and wife’s greater contributions to and maintenance of the vehicle, the trial court was not plainly wrong in ruling that the automobile purchased by husband prior to the marriage, but ninety percent paid for and maintained by wife, was transmuted into marital property. Largen v. Largen (Hartis), 1997 Va. App. LEXIS 339 (Va. Ct. App. May 27, 1997).

Vehicle was marital property. —

Vehicle, which was purchased during the marriage with proceeds from the sale of an auto parts business, was marital property, where the wife made significant nonmonetary contributions to the business which was operated during the marriage. Hancock v. Hancock, No. 0962-89-3 (Ct. of Appeals Oct. 9, 1990).

Stock purchased with loan from husband’s father was marital property where the parties treated the transaction as a loan; the husband acknowledged the debt in two pretrial depositions, on a written financial profile prepared during the litigation, and in a post-separation conversation with his wife. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Brokerage account. —

There was no dispute that husband owned the brokerage account before the marriage, and therefore, it was presumptively separate property, but that did not end the inquiry. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

Stock options. —

Where stock options through husband’s employer were fully vested at the time of the parties’ separation and were not conditioned on the husband’s continued employment; and although the husband was required to wait for one year before exercising the options, the right to exercise the options at that time was fully vested; the trial judge correctly ruled that the entire value of the stock options was marital property. Donohue v. Donohue, 1997 Va. App. LEXIS 450 (Va. Ct. App. July 8, 1997).

Although the trial court erred in classifying the husband’s stock options, which he earned the right to exercise during the marriage, as separate property, the error was harmless because the court classified the assets purchased with the proceeds as marital property. Ranney v. Ranney, 45 Va. App. 17, 608 S.E.2d 485, 2005 Va. App. LEXIS 38 (2005).

Inclusion of the phrase “whether vested or nonvested” in subdivision G 1 of § 20-107.3 clearly indicates that the date of vesting is not, by itself, dispositive of whether the deferred compensation is marital or separate property; the legislature clearly intended for the delineated plans of compensation to be treated uniformly, and therefore, the marital share of deferred compensation should be calculated in the same manner as the marital share of pensions or other retirement benefits. Schuman v. Schuman, 282 Va. 443 , 717 S.E.2d 410, 2011 Va. LEXIS 215 (2011).

Court of appeals erred in finding that a wife’s stock awards were separate property because it should not have classified the stock awards based solely on the date of vesting; the stock awards were a form of deferred compensation because they were payment for work already performed as well as the work the wife performed until the date of vesting. Schuman v. Schuman, 282 Va. 443 , 717 S.E.2d 410, 2011 Va. LEXIS 215 (2011).

Case was remanded to the trial court for clarification of its holding that a fund was marital property, because it provided no explanation for its holding; because of the limited facts regarding the fund found in the record, the court of appeals unable to determine if the trial court erred in classifying the fund as marital property. Pratt v. Pratt, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

Stock was not properly classified as marital property where there was no evidence to support wife’s claim that husband’s father intended to make a gift of the stock to both parties, stock principal was kept separate after it was received and husband’s father testified that stock was intentionally registered in husband’s name. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Treating a pledge of separately owned stock as an exchange is consistent with the legislative intent behind the statute defining separate property where the stock is pledged to obtain loan proceeds to use for investment purposes; and where no marital property, effort, or credit is involved. A stock pledge is simply a method to use separate property to acquire additional property. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

Since no valuable consideration existed and the husband’s family company intended to make a gift to the husband, the two hundred shares of the company’s stock the husband received represented his separate property from a gift under subdivision A 1 of § 20-107.3 .Sfreddo v. Sfreddo, 59 Va. App. 471, 720 S.E.2d 145, 2012 Va. App. LEXIS 13 (2012).

Husband’s personal injury settlement proceeds were marital property, absent any proof that the settlement funds were exclusively for injuries personal to the husband. Thomas v. Thomas, 13 Va. App. 92, 408 S.E.2d 596, 8 Va. Law Rep. 725, 1991 Va. App. LEXIS 251 (1991).

Husband’s inheritance was traceable as his separate property when deposited into a joint account with the wife in which only three major transactions occurred after the deposit. Whitehead v. Whitehead, 2001 Va. App. LEXIS 381 (Va. Ct. App. June 26, 2001).

Wrongful termination settlement proceeds. —

Trial court properly classified a husband’s wrongful termination lawsuit settlement proceeds as marital property subject to equitable distribution because the clear language of the stipulation addressed only economic losses, including back pay. Olsen v. Mackay, 2010 Va. App. LEXIS 155 (Va. Ct. App. Apr. 27, 2010).

Severance package not marital property. —

Trial court properly found that a wife failed to overcome the presumption that her husband’s post-separation severance package was separate property where: (1) the wife relied on a letter stating that the package was based on the husband’s 22 years of service with the company and his accrued vacation, (2) the parties were married for over 14 of the 22 years that the husband was with the company, (3) the letter did not show that the package was intended by the company to compensate the husband for his efforts while the parties were married, (4) the termination agreement between the husband and the company stated that the package was awarded to the husband to compensate him for completing the remainder of his employment and not to sue or disparage the company in the future, and (5) the letter failed to show when the vacation was earned. Ash v. Ash, 2004 Va. App. LEXIS 120 (Va. Ct. App. Mar. 23, 2004).

Salaries. —

Trial court did not err in concluding that none of the property in dispute was acquired from salaries, which were undeniably marital property, because there was evidence presented that the salaries were completely exhausted by the parties’ routine living expenses; therefore, those funds were not used to acquire any of the property at issue, which was the husband’s separate property. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

Funds from non-compete agreement signed just before marriage. —

Where a husband sold his interest in a business 12 days before his marriage, as his right to $1 million was contingent on his honoring a non-compete provision of the sale agreement and would only be earned for events that took place during the marriage, the money should have been treated as marital, not separate, property. Cirrito v. Cirrito, 44 Va. App. 287, 605 S.E.2d 268, 2004 Va. App. LEXIS 574 (2004).

Evidence sufficient to support finding that property was marital property. —

There was ample support for the trial court’s finding that the farm was marital property, where the evidence showed that the husband purchased the property in October, 1965, and that although the parties lived together at that time they were not married until May, 1967, and that at all times the property was titled in the husband’s name, where husband and wife worked together with joint labor and funds throughout the marriage to improve the property, working many weekends, clearing the fields, building a pond, a bridge, cutting trails and refinishing the existing house. Liming v. Liming, 1988 Va. App. LEXIS 141 (Va. Ct. App. Dec. 20, 1988).

Where a wife deposited money she inherited into the parties’ joint savings account, then transferred it to their joint checking account, and used funds from that account to buy a bed and stock, the trial court erred in classifying the bed and stock as her separate property. Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224, 2003 Va. App. LEXIS 312 (2003).

Trial court did not abuse its discretion by classifying an investment portfolio as marital property, as the identity of the husband’s separate funds had been lost in countless unspecified transactions involving marital funds, resulting in the irreversible transmutation of separate into marital property. Nack v. Dickerson, 2007 Va. App. LEXIS 339 (Va. Ct. App. Sept. 11, 2007).

Mortgage payments made during marriage using income earned during marriage were contributions of marital, not separate, property, and therefore trial court properly viewed reduction in mortgage during marriage as marital contributions. Noell v. Noell, 2000 Va. App. LEXIS 99 (Va. Ct. App. Feb. 15, 2000).

Marital funds paid into real property were significant to the marital relationship, where the marital property in question was the husband’s salary, where it was a major source of the parties’ income during the period when it was placed in husband’s bank account, where funds were drawn from that account to make the mortgage payments on the property, and where there was no evidence supporting husband’s claim that the receipt of rental income lessened the significance of the marital funds used to make the mortgage payments on the property. Taylor v. Taylor, 9 Va. App. 341, 387 S.E.2d 797, 6 Va. Law Rep. 1211, 1990 Va. App. LEXIS 11 (1990).

Property acquired with marital property. —

It is well settled that if an interest in a business is marital, the use of business funds to acquire other property makes such acquired property also marital. Stratton v. Stratton, 16 Va. App. 878, 433 S.E.2d 920, 10 Va. Law Rep. 127, 1993 Va. App. LEXIS 337 (1993).

Date for classification of property. —

In most cases the appropriate date for classification purposes would be the date of last separation. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

By initially not specifically designating in this section when property was to be classified as marital or separate, the silence of the General Assembly evinced an intention to leave such determination to the courts. The statutory amendments made in 1984 and 1986 do not now restrict the exercise of that discretion which the legislature had earlier conferred, other than to limit application of the presumption to the period before the filing of the bill of complaint (1984 amendment) or the period before the last separation of the parties (1986 amendment). Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

The character of property classified pursuant to subsection A of this section is initially ascertained as of the date that it is acquired. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

Property not acquired during marriage. Trial court erred in classifying items not acquired during marriage as marital rather than separate property. Fisher v. Fisher, No. 0687-99-2 (Ct. of Appeals Feb. 8, 2000).

Evidence established that before the parties’ marriage, the former husband’s father gave him two farms and that they remained titled solely in the husband’s name at the time of the divorce. As the former wife did not meet her burden to present sufficient evidence that the value of the farms increased due to the husband’s marital efforts, the farms were properly treated as the husband’s separate property. Scarberry v. Scarberry, 2009 Va. App. LEXIS 28 (Va. Ct. App. Jan. 27, 2009).

Inherited property. —

Property inherited during the marriage must be maintained as separate property in order to retain its character as separate property. Linkous v. Linkous, No. 0938-85 (Ct. of Appeals Apr. 7, 1986).

Where husband used $10,000 of his inheritance and paid off the mortgage on residence jointly owned with his wife, he was not entitled to receive $10,000 upon sale of the property for his contribution from the separate marital proceeds before they were divided between him and his wife, absent proof that he did not intend a gift to his wife. Linkous v. Linkous, No. 0938-85 (Ct. of Appeals Apr. 7, 1986).

Husband’s $10,000 inheritance, which was invested in the parties’ home by way of improving the property, was subject to equitable distribution. Ashley v. Ashley, No. 1479-89-1 (Ct. of Appeals Sept. 18, 1990).

Although the evidence proved that the income the husband and wife received from their interests in the trailer parks was committed to family use, it was equally clear that the husband never surrendered dominion and control of the corpus. The husband’s inherited interests in the trailer parks were separate property when acquired. No evidence proved that his interests were transmuted to marital property. Accordingly, the trial court erred in classifying the husband’s inherited interest in the trailer parks as marital property. The evidence did not prove that the inherited property became transmuted to marital property or was not retraceable by a preponderance of the evidence. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Circuit court did not err by classifying property the husband inherited as marital property; the conveyance of the properties to the husband and wife as tenants by the entirety, together with the wife’s testimony that the husband considered the inherited properties as gifts to both parties and that he wished to share those properties with her, as well as her subsequent access to the income generated by the properties, established the husband’s donative intent. Parsons v. Parsons, 2014 Va. App. LEXIS 402 (Va. Ct. App. Dec. 9, 2014).

Classification of “trust fund tax” debt. —

Trial court erred in ruling that a “trust fund tax” debt due the federal government for payroll taxes that a husband failed to pay during the marriage was a marital debt under § 20-107.3 , as the trial court’s ruling allowed the husband to benefit from his violation of federal law that had potential criminal implications. The trial court had to consider the purpose of the trust fund tax debt, as well as who benefited from it, in order to classify that debt as marital or separate. Gilliam v. McGrady, 53 Va. App. 476, 673 S.E.2d 474, 2009 Va. App. LEXIS 105 (2009), aff'd in part and rev'd in part, 279 Va. 703 , 691 S.E.2d 797, 2010 Va. LEXIS 48 (2010).

Property which is marital may become separate only through “a valid, express agreement by the parties,”; § 20-155 , or as provided in subdivision A 3 d of this section. McDavid v. McDavid, 19 Va. App. 406, 451 S.E.2d 713, 1994 Va. App. LEXIS 768 (1994).

Inclusion of real and personal property purchased by husband after date of couple’s last separation as marital property was reversible error where no evidence was proffered to show use or encumbrance of marital assets for its purchase. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Property acquired after parties’ last separation. —

Presumption that all property acquired during marriage is marital property does not apply to property acquired after parties’ last separation. Morris v. Morris, 1999 Va. App. LEXIS 606 (Va. Ct. App. Oct. 26, 1999).

Trial court erred in determining that shares of stock received by the husband in 2008 and 2009 were marital property because they were received by the husband after the parties’ separation, pursuant to subdivision A 2 of § 20-107.3 , although they were compensation for the sale of a business that occurred before the separation. Shiembob v. Shiembob, 55 Va. App. 234, 685 S.E.2d 192, 2009 Va. App. LEXIS 520 (2009), limited, Schuman v. Schuman, 282 Va. 443 , 717 S.E.2d 410, 2011 Va. LEXIS 215 (2011).

Evidence was unrefuted that the investment property was not marital property because it was not purchased with marital funds, there was no marital sweat equity for the property, the wife acknowledged that she had no role in purchasing or renovating that property, the property was acquired by the husband after the last separation and was presumed to be separate property, and nothing in the record rebutted that presumption. Jirinec v. Jirinec, 2016 Va. App. LEXIS 86 (Va. Ct. App. Mar. 22, 2016).

Attorney fees acquired after separation was separate debt. —

It was error to award wife an award for attorney fees that were accumulated after the parties separated since the parties’ divorce decree did not make such a provision and it was error to consider those fees as part of the marital estate. The attorney fees the wife accumulated after the parties separated was her separate debt. Barrett v. Barrett, 2005 Va. App. LEXIS 168 (Va. Ct. App. Apr. 26, 2005).

IRA accounts. —

In fashioning an equitable distribution award, the trial court failed to properly classify the parties’ Individual Retirement Accounts where it incorrectly attributed the total value of both IRAs to the husband. Tucker v. Wilmoth-Tucker, 2010 Va. App. LEXIS 199 (Va. Ct. App. May 18, 2010).

Circuit court did not err in awarding one spouse 100 percent of the Roth IRA titled in that spouse’s name because the overall distribution of the marital property was equitable. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Trial court erred in failing to equitably divide a husband’s IRA because no equitable distribution ruling was made in spite of the wife’s motion and notwithstanding the evidence presented regarding the IRA and the use of funds; it could be that the IRA could not be classified because it no longer existed due to the husband’s expenditures and that his expenditures did not amount to waste or dissipation, but the trial court’s failure to issue any order as to the IRA was an abuse of discretion. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Evidence insufficient to show that IRA and mutual fund accounts were separate property. —

Trial court cannot be held to have erred in classifying IRA and mutual fund accounts as entirely marital in view of husband’s failure to provide credible evidence establishing the separate nature of at least a portion of the funds. Luczkovich v. Luczkovich, 26 Va. App. 702, 496 S.E.2d 157, 1998 Va. App. LEXIS 105 (1998).

IRA accounts accumulated before marriage held separate property. —

Where wife proved by unrebutted evidence that she accumulated most of the IRA account funds before her marriage to husband, the trial court correctly classified this portion of the IRA accounts as separate property. Tucker v. Tucker, 1993 Va. App. LEXIS 291 (Va. Ct. App. July 20, 1993).

Where husband acquired IRA before marriage and invested no money in it during marriage, IRA was, by statute, presumed separate property. Foreman v. Ketchum, No. 2092-98-4 (Ct. of Appeals July 27, 1999).

Award of IRA to wife reversed where husband proved IRA was funded by separate property. —

In making an equitable distribution award, the trial court erred in failing to comply with the provisions § 20-107.3 after it found that the husband rebutted the marital property presumption by proving he funded an individual retirement account, which was titled solely in the wife’s name, with separate property and after it found that the wife did not prove the IRA was a gift. Given those findings, the appellate court reversed the trial court’s award of the IRA to the wife and remanded for reclassification and distribution of the IRA. Golembiewski v. Anderson-Miller, 2005 Va. App. LEXIS 231 (Va. Ct. App. June 14, 2005).

Classification of sick leave and vacation. —

The trial court did not abuse its discretion in denying wife an award of husband’s accumulated sick leave and vacation time. There is no Virginia case law or statutory authority to support wife’s proposition that accumulated sick leave or vacation leave is a marital asset before it is awarded to the spouse to whom the value is credited. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

Because the values of husband’s leave times — sick leave and vacation time — were only speculative before his retirement, the trial court correctly found that it had no authority with which to award wife half of the values as a marital award. Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24 (Va. Ct. App. Jan. 10, 1995).

Lump sum workers’ compensation award. —

A trial court erred in finding that a wife was entitled to a marital share of her husband’s lump-sum workers’ compensation settlement where the husband had previously received temporary permanent disability benefits and medical benefits and where such sums fully compensated the husband for any recovery attributable to lost wages or medical expenses that accrued during the marriage and before the last separation of the parties; since the lump-sum award was only intended to cover lost wages and medical expenses following the date of separation, no portion of the settlement was subject to distribution as a “marital share.” Tignor v. Tignor, 2000 Va. App. LEXIS 513 (Va. Ct. App. July 18, 2000).

Assets divided pursuant to revocable inter vivos trust not separate property. —

Where a husband and wife had transferred assets into separate shares pursuant to the terms of a revocable inter vivos trust agreement for estate planning purposes, the evidence was not clear and unambiguous that either party intended to relinquish his or her interest in the marital property and to create separate estates; the agreement to divide and place their assets into equal shares was to be viewed in light of the contemplated tax purposes that the agreement was intended to serve and the fact that the parties retained the right to revoke the trust supported the conclusion that neither party had the requisite donative intent to transform marital property into separate property. Kelln v. Kelln, 30 Va. App. 113, 515 S.E.2d 789, 1999 Va. App. LEXIS 400 (1999).

Wire transfer from husband’s father. —

Trial court did not err in finding that the husband failed to present sufficient evidence to prove that a wire transfer of money from the husband’s father was retraceable to the husband’s separate property where the husband’s testimony could reasonably be inferred to prove the wire transfer was a loan, and not a gift. Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135, 1997 Va. App. LEXIS 763 (1997).

Evidence insufficient to prove gift. —

Decree of divorce that found that an investment account, a parcel of real property, and a car were gifts from the husband to the wife and thus marital property, was erroneous, because the wife’s testimony showed the husband’s intent to allow the wife access to or use of the subject property, supporting joint ownership, and was insufficient to prove a gift by clear and convincing evidence. Jones v. Jones, 2009 Va. App. LEXIS 195 (Va. Ct. App. Apr. 28, 2009).

Spouse failed to show that any portion of a farm property, which formerly belonged to the other spouse’s parents, was marital property that was subject to equitable distribution through a gift of that property by the other spouse after attaining title to the property. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Insufficient evidence of gift of separate property. —

Although the parties intended a residence purchased, in part, with separate funds contributed by the wife to be their family and marital home, the husband did not prove by clear and convincing evidence that the wife by words, acts, or conduct intended to gift the funds to him. Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Jewelry as marital property. —

Where the husband testified that he gave his wife jewelry valued at $5,000 during the course of the marriage, but the commissioner omitted the jewelry completely from the property that was valued for purposes of making an equitable distribution award, and the wife argued that the jewelry should have been excluded because it is “personal paraphernalia” and, thus, exempt as a gift under § 55-3, the court rejected the wife’s argument, and classified the jewelry as marital property. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Trial court did not abuse its discretion in finding that jewelry was marital property and subject to equitable distribution because upon hearing the conflicts in the wife’s testimony, the trial court was entitled to discredit the wife’s uncertain testimony and adopt the husband’s testimony that all the jewelry had been commingled and was marital. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

The value of Veteran’s Administration disability benefits, while not included as part of the marital estate, may be considered as a source of income of the disabled spouse in awarding spousal support or child support. Lambert v. Lambert, 10 Va. App. 623, 395 S.E.2d 207, 7 Va. Law Rep. 110, 1990 Va. App. LEXIS 135 (1990).

Medical practice acquired before marriage should have been classified as separate property. Silberblatt v. Silberblatt, 1999 Va. App. LEXIS 434 (Va. Ct. App. July 13, 1999).

Personal injury settlement proceeds. —

As a husband testified that personal injury settlement proceeds were based on the salary that he would have received over the course of his projected 17-year working career, and a worksheet from the Department of Labor, and admitted into evidence in support of the husband’s claims, failed to show any division of the settlement proceeds into economic and non-economic loss, the proceeds reflecting lost salary did not constitute non-economic loss and the trial court did not err in classifying the personal injury settlement proceeds as marital property. Steakley v. Steakley, 2006 Va. App. LEXIS 65 (Va. Ct. App. Feb. 21, 2006).

Refusal to take further evidence as to source of purchase funds held proper. —

It was within the court’s discretion to refuse to take further evidence concerning the source of funds used to purchase a 15-acre parcel claimed by the wife to be separate property, where the request came six weeks after the evidentiary hearing consisting of two full days of testimony during which each party had ample opportunity to present evidence. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

The 1984 amendment was not applicable to pending suit. —

The 1984 amendment to this section, which prior to subsequent amendment in 1986 limited the application of the presumption to the period before the filing of the bill of complaint, was not applicable to a pending suit. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Property held settlement, not award in lieu of support. —

Where the evidence indicated a clear intent to order the conveyance of an interest in marital property as a means of dividing marital property under this section it was a property settlement, and not an award in lieu of spousal support. Roberson v. Roberson, 187 Bankr. 159, 1995 Bankr. LEXIS 1439 (Bankr. E.D. Va. 1995).

Post-separation mortgage payments. —

Trial court did not abuse its discretion when it refused to award husband a credit for his post-separation mortgage payments that increased the equity in the marital property; the husband retained exclusive use of the property after the parties separated, and no evidence established that husband’s source of funds for making the post-separation mortgage payments was actually his separate property. Von Raab v. Von Raab, 26 Va. App. 239, 494 S.E.2d 156, 1997 Va. App. LEXIS 761 (1997).

Nothing in Virginia jurisprudence prevents a court proceeding under § 20-107.3 from classifying, as a recipient spouse’s separate property, mortgage payments a payor spouse makes in lieu of support (whether spousal support, child support, or both types of support) where the spouses entered into a verbal agreement to that effect in 1972 and completed it almost entirely prior to the effective date of Virginia’s marital agreement statute. Barrett v. Gibbs-Barrett, 2008 Va. App. LEXIS 96 (Va. Ct. App. Feb. 26, 2008).

Circuit court did not err in classifying the equity attributable to appellant husband’s 15 years of post-separation mortgage payments as the wife’s separate property, based on the husband’s fully performed agreement to pay the mortgage in lieu of support; the wife had given up the right to seek child and spousal support in exchange for husband’s payment of the mortgage payments on the marital home, and nothing in Virginia jurisprudence prevented such an agreement. Barrett v. Gibbs-Barrett, 2008 Va. App. LEXIS 96 (Va. Ct. App. Feb. 26, 2008).

Property may not be part marital and part separate. —

The trial judge concluded that the value of the husband’s separate interest in stock was $231,000, and the value of the marital interest was $268,800, representing the amount by which the stock had appreciated during the marriage, essentially characterizing this property as part marital, part separate, in contravention of the unitary concept of property. Ellington v. Ellington, 8 Va. App. 48, 378 S.E.2d 626, 5 Va. Law Rep. 2100, 1989 Va. App. LEXIS 24 (1989).

Classification as hybrid properties. —

Circuit court did not err in classifying a commercial real estate partnership interest and a duplex property as hybrid properties because income received from the partnership was received not only because of one spouse’s investment of inherited funds, but also because of the note that the parties together had on the investment, while the marital property and personal efforts of both parties contributed to a substantial increase in value of the duplex property. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Property that the husband purchased as his residence was at least in part hybrid property because it was purchased in substantial part with marital funds as the funds were marital funds because over time, the account containing the proceeds from the husband’s sale of his pre-marital home had been commingled with marital funds, such as his paychecks and his tax returns. Jirinec v. Jirinec, 2016 Va. App. LEXIS 86 (Va. Ct. App. Mar. 22, 2016).

Trial court did not err in classifying stock payments as hybrid and not marital, and applying a coverture fraction to determine which portion was marital; the stock purchase agreement was properly treated as a deferred compensation plan as the stock was acquired and sold during the marriage and the stock’s purchase price was based on the husband’s work. Allen v. Allen, 2017 Va. App. LEXIS 54 (Va. Ct. App. Feb. 28, 2017).

Separate property. —

Because there was evidence to support the trial court’s conclusion that various items were acquired with the husband’s separate property, the trial did not err in its classification of the property; the husband’s expert witness testified extensively about the status of the property at issue, and the wife did not offer any expert or lay testimony to rebut the husband’s expert. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

Salaries, which were marital property were placed in an account that was unquestionably the husband’s separate property, and that resulted in the funds becoming the husband’s separate property, absent an ability to trace the marital assets and find that they remained in the account; the trial court’s decision to credit the husband’s testimony regarding the use of the salaries made it impossible to trace the assets. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

Trial court’s classification of shares of stock as the husband’s separate property was inappropriate because, at trial, the husband’s counsel conceded that husband did not meet the husband’s burden of tracing the funds used to purchase the stock and stated that it was marital. Furthermore, the remaining shares of stock were not entirely the husband’s separate property as the shares of stock were purchased in part with money from payments to the husband from the husband’s employer that were paid to the husband during the marriage. Warme v. Warme, 2020 Va. App. LEXIS 281 (Va. Ct. App. Nov. 17, 2020).

Trial court was not plainly wrong in finding that real property was a husband’s separate property because credible evidence supported the court’s conclusion that the husband used the husband’s premarital funds to make the down payment as the property was purchased less than six months after the parties were married and in the husband’s name only. The husband testified that the specific money the husband used from bank accounts the husband had prior to the marriage to make the down payment was entirely the husband’s money prior to the marriage. Warme v. Warme, 2020 Va. App. LEXIS 281 (Va. Ct. App. Nov. 17, 2020).

Trial judge erred in finding that the entire amount of money that the husband used to make the down payment on a real property was completely the husband’s separate property because the money came from two payments to the husband from the federal government that were paid to the husband during the marriage, and the husband conceded that some of the funds in both payments accrued in part during the marriage. On remand the court was to reclassify what portion of the money was marital property and what portion was the husband’s separate property. Warme v. Warme, 2020 Va. App. LEXIS 281 (Va. Ct. App. Nov. 17, 2020).

Circuit court erred when it classified the $70,020 contribution to the down payment on the marital residence as the husband’s separate property instead of the wife’s separate property because prior to the marriage, the husband’s father transferred the funds to the wife; these funds were the wife’s separate property as they were acquired prior to the marriage. Leyrer v. Hajiha, 2022 Va. App. LEXIS 13 (Va. Ct. App. Jan. 18, 2022).

Failure to classify. —

Circuit court erred in the equitable distribution of property upon the termination of the parties’ marriage as the circuit court did not properly classify and value all of the spouses’ property because the final order concerning equitable distribution contained no findings classifying the ex-wife’s financial assets as marital property, separate property, or hybrid property; the order did not classify any of the ex-husband’s financial assets; the order did not address whether the mortgage on the Norfolk home was separate debt or marital debt; and those omissions, in and of themselves, represented a misapplication or wrongful application of the equitable distribution statute. Frakes v. Frakes, 2017 Va. App. LEXIS 191 (Va. Ct. App. Aug. 1, 2017).

3.Commingled property.

Separate property includes property acquired during the marriage by bequest or devise. If separate and marital property are commingled, resulting in the loss of identity of the property, it may either be transmuted to marital property or retraceable by a preponderance of the evidence to its original classification. Absent evidence that the parties commingled separate and marital property or intended to convert separate property to the marital estate, the separate property cannot be considered transmuted to marital property. In making this determination, great consideration should be given to the actions, or nonaction, of the parties with regard to exercising control over the property in question. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Source of funds doctrine. —

Virginia’s equitable distribution statute does not adopt the source of funds doctrine. Robinette v. Robinette, 10 Va. App. 480, 393 S.E.2d 629, 6 Va. Law Rep. 2705, 1990 Va. App. LEXIS 111 (1990).

Bank account that accumulated rental payments from assets acquired during marriage was marital property. —

Trial court properly classified as marital property bank account that accumulated rental payments from assets that were acquired during the marriage; the fact that a portion of the parties’ income in the bank account was received after the separation does not control the classification of income from jointly titled property whether received before or after the separation. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Classification is ascertained initially according to date of acquisition. —

The classification of property initially is ascertained according to the date of acquisition. Hancock v. Hancock, No. 0962-89-3 (Ct. of Appeals Oct. 9, 1990).

The character of property at the date of acquisition governs its classification pursuant to this section. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Classification of property: multiple source and multiple destination tracing. —

In addition to question of “multiple source tracing,” in which marital and separate property are combined to acquire a single piece of hybrid property, is the problem of “multiple destination tracing,” in which only a portion of hybrid property is used to acquire or invest in additional properties, either simultaneously or successively. To determine whether a party’s separate property can be retraced under such circumstances, courts have adopted widely varying approaches to address the character of withdrawals from hybrid accounts; whatever approach is used however, it is clear that in the absence of sufficient evidence establishing the identity of separate funds throughout the multiple investments and withdrawals, the asset in question must be deemed marital. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Where husband presented insufficient evidence from which the court could determine the identity of his separate funds, and distinguish them from the marital property in the hybrid asset, viz., the parties’ last house, the unknown amount contributed from the separate source transmutes by commingling and becomes marital property. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Wife proved by a preponderance of evidence that marital funds were traceable to air conditioning unit installed in husband’s separately owned home; trial court therefore did not err in awarding wife a one-half share of this marital asset. Bloxton v. Bloxton, 1999 Va. App. LEXIS 255 (Va. Ct. App. May 4, 1999).

Tracing of separate property. —

In an appeal of a divorce judgment, a wife’s challenge to the valuation of her separate interest in the marital home based on collateral estoppel failed, because the husband did not indicate that he would insist on admission of a pretrial exhibit, and thus relieve the wife from persuading the trial court to use the Brandenburg formula, and the trial court thus properly traced the wife’s separate interest in the property. Hosier v. Hosier, 2007 Va. App. LEXIS 62 (Va. Ct. App. Feb. 20, 2007).

Motorcycle was properly classified as marital property under § 20-107.3 as a husband failed to trace the motorcycle purchase funds to the husband’s separate property. Nor was an annuity marital property where husband did not trace the annuity to the husband’s inheritance. Ford v. Ford, 2008 Va. App. LEXIS 505 (Va. Ct. App. Nov. 18, 2008).

In a divorce, a husband was not entitled to a finding that part of the parties’ real estate was the husband’s separate property because the husband did not, pursuant to paragraphs (d) through (f) of subdivision A 3 of § 20-107.3 , sufficiently trace that part of the real estate to the husband’s separate assets, as the husband did not adequately document that the husband kept the husband’s funds used to buy the property separate from marital assets. Riley v. Riley, 2009 Va. App. LEXIS 91 (Va. Ct. App. Mar. 10, 2009).

Finding that a husband contributed $134,788 from his separate funds towards the purchase and construction of the parties’ marital home was error because there was insufficient evidence to show that the husband traced all funds from a loan and from the sale of his separate property to the marital home. Mayhew v. Mayhew, 2011 Va. App. LEXIS 4 (Va. Ct. App. Jan. 11, 2011).

Because the evidence showed that a husband established an investment fund before marriage, with property that was therefore the husband’s separate property, the fund was retraceable to the husband’s separate property; the husband testified that the husband had not contributed to, nor removed money from, the fund during the parties’ marriage. Pratt v. Pratt, 2011 Va. App. LEXIS 410 (Va. Ct. App. Dec. 20, 2011), vacated in part, No. 2394-10-4, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

Because a vehicle was retraceable to a husband’s separate property and was not a gift, it retained its original classification as the husband’s separate property under § 20-107.3 , and the trial court improperly determined that the vehicle was the wife’s separate property. Pratt v. Pratt, 2011 Va. App. LEXIS 410 (Va. Ct. App. Dec. 20, 2011), vacated in part, No. 2394-10-4, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

Husband’s placing his inherited funds in the parties’ joint account did not render those funds marital, as there was no evidence establishing his intention to make those inheritances gifts to his wife. Macione v. Macione, 2013 Va. App. LEXIS 218 (Va. Ct. App. July 30, 2013).

Because a husband failed to trace his separate contributions to the parties’ farm and residence, the circuit court did not err by classifying them as marital property; some of the funds the parties used to purchase the farm and build their home came from marital income, and because the husband failed to establish where he deposited the proceeds of the sale of his stock, he failed to prove those funds were used to purchase the farm or build the parties’ house on that property. Dixon v. Dixon, 2019 Va. App. LEXIS 95 (Va. Ct. App. Apr. 23, 2019).

Evidence supported the circuit court’s findings that a husband traced his separate interest from cabin property into the purchase of the marital residence because he produced documents reflecting the purchase of the cabin property and the marital residence, as well as a bridge loan; the wife did not cross-examine the husband or his brother regarding the cabin property and the marital residence. Daniel v. Daniel, 2020 Va. App. LEXIS 87 (Va. Ct. App. Mar. 31, 2020).

Circuit court did not err in classifying stock in an account as marital property, as the account was opened with marital assets and partially funded with marital assets; while the husband was able to do some tracing and demonstrate that some funds came from post-separation income, he did not satisfactorily demonstrate which stocks, or even which portion of the stocks, were traceable to marital funds and which were traceable to separate funds. Pendli v. Gajula, 2020 Va. App. LEXIS 152 (Va. Ct. App. May 19, 2020).

Real property traced to separate funds. —

Lake house was found to be one spouse’s separate property because the spouse successfully traced the lake house to the spouse’s separate funds. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

In order to trace the separate portion of hybrid property, a party must prove that the claimed separate portion is identifiably derived from a separate asset; this process involves two steps: a party must (1) establish the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000); Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643, 2000 Va. App. LEXIS 637 (2000); Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Inherited farm properly classified as hybrid property. —

Trial court properly classified a farm as hybrid property under subdivision A 3 of § 20-107.3 where: (1) a wife inherited the farm from her father and obtained title to it by paying the estate a lump sum, which she and her husband obtained from a bank loan; (2) the bank required that the farm be given as security for the loan, and that the farm be titled in both parties’ names; (3) the farm was originally the wife’s separate property, but was transmuted into marital property when it was retitled jointly; (4) the wife retraced the farm with the will and the settlement papers, and the husband failed to show that the transmutation resulted from a gift, as he failed to show a donative intent; and (5) the bank loan was secured by 36.6 percent of the farm, making the farm 36.6 percent marital property and 63.4 percent the wife’s separate property. Dotson v. Dotson, 2004 Va. App. LEXIS 204 (Va. Ct. App. May 4, 2004).

Classification of property as part marital and part separate. —

Trial court did not err in classifying automobile as partially marital property and partially separate property of wife. Cline v. Cline, 1999 Va. App. LEXIS 403 (Va. Ct. App. June 29, 1999).

Characterization of a marital home as hybrid property under subdivision A 3 of § 20-107.3 was proper because while the husband owned the property before the marriage, the wife provided non-monetary contributions to the property during the marriage and husband’s after-marriage mortgage payments, made with income earned during the marriage, were contributions of marital not separate property. Wright v. Hamilton-Wright, 2008 Va. App. LEXIS 197 (Va. Ct. App. Apr. 22, 2008).

Evidence was sufficient to support the trial court’s finding that the land value of a parcel was hybrid property, and a judgment equitably distributing property from a marriage was proper. The trial court could properly find that the husband’s parents gave him a gift by forbearing part of the purchase price, and that the husband proved the retraceability of his separate interest in the land value by a preponderance of the evidence. Biernot v. Biernot, 2009 Va. App. LEXIS 88 (Va. Ct. App. Feb. 24, 2009).

Account came into existence prior to the parties’ separation, and thus the account was presumed to be marital, but following the parties’ separation, all subsequent deposits were husband’s separate contributions; the account contained both marital and separate property and the court did not err in classifying the account as hybrid property. Ross v. Ross, 2020 Va. App. LEXIS 221 (Va. Ct. App. July 28, 2020).

Because the wife provided extensive evidence about every transaction in her retirement account, all passive changes in the value of the account, and the periodic rates of growth in her TSP from before the parties’ marriage until immediately before trial, there was evidence to support the trial court’s classification of that account as part separate. Moore v. Moore, 2020 Va. App. LEXIS 260 (Va. Ct. App. Oct. 27, 2020).

The trial judge erred in ordering the conveyance of potential future profits of companies that were marital properties titled solely in the husband’s name. Ellington v. Ellington, 8 Va. App. 48, 378 S.E.2d 626, 5 Va. Law Rep. 2100, 1989 Va. App. LEXIS 24 (1989).

The contribution of separate assets to the marital net worth is a factor which may result in a particularly identified credit to the spouse who is contributing those assets to the marital pool, but this does not mandate a dollar-for-dollar credit as other factors under subsection E may offset this “source of funds” factor. Ellington v. Ellington, 8 Va. App. 48, 378 S.E.2d 626, 5 Va. Law Rep. 2100, 1989 Va. App. LEXIS 24 (1989).

Commingled property. —

Even if the amount of marital property that is commingled with separate property is insubstantial, if it is nevertheless significant to the marital relationship, that contribution is sufficient to trigger the presumption that the separate property has been transmuted to marital property. The possibility of the ultimate property division being inequitable is far less where commingled property is presumed marital rather than separate, since the pool of marital property available for division is greater. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

Supreme Court’s adoption of both the unitary concept of property and the concept of transmuting separate property to marital property by commingling may necessarily suggest, however, that the statutory admonition of subdivision (A) (1) (iii) that income received from, and the increase in value of separate property during the marriage is separate property may not apply to all circumstances. Unquestionably, the statute applies to appreciation in value caused by economic factors. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

Regardless of the original character of the property, if a party mingles separate property with marital property, the right to claim any part of the original property as separate is extinguished. Ashley v. Ashley, No. 1479-89-1 (Ct. of Appeals Sept. 18, 1990).

If a party chooses to commingle marital and non-marital funds to the point that direct tracing is impossible, the claimed separate property loses its separate status. Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135, 1997 Va. App. LEXIS 763 (1997).

The proceeds from the sale of a home owned by a husband as his separate property could not be traced into a home subsequently purchased by the husband and wife where the husband deposited the proceeds from the sale into a joint checking account with wife, commingling separate and marital assets, and unspecified sums of marital funds were thereafter deposited and withdrawn from the account, the balance regularly ebbing and flowing for months; when the parties withdrew from the account those monies necessary to acquire the marital home, the identity of husband’s separate funds had been lost in countless unspecified transactions involving marital funds, resulting in the irreversible transmutation of separate into marital property. Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643, 2000 Va. App. LEXIS 637 (2000).

A trial court did not err in finding that a wife gifted to her husband an interest in the separate funds she had received from members of her family which were ultimately deposited in several investment accounts in her name where the funds were routinely first placed into the parties’ joint marital checking account and commingled with marital funds and then funds would be withdrawn from the marital account and deposited into wife’s separately held accounts, the parties’ joint accounts, or accounts registered solely in husband’s name. Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Because any money that might have been taken from the wife’s separate account was hopelessly commingled with marital funds, the trial court did not err when it classified a boat and a parcel of real property as marital property. Ranney v. Ranney, 45 Va. App. 17, 608 S.E.2d 485, 2005 Va. App. LEXIS 38 (2005).

In entering an equitable distribution award in a divorce action, while the trial judge erred by factoring the post-separation mortgage payments into the Brandenburg calculation, the judge did not err in his classifications of the parties’ Colorado house or the down payment on the marital home, acted appropriately in finding that the reduction of the mortgage on the Colorado house was marital property, and properly found that the down payment on the marital home, which was traceable to the Colorado house proceeds, was partially the husband’s separate property. VanWormer v. VanWormer, 2006 Va. App. LEXIS 221 (Va. Ct. App. May 23, 2006).

Trial court erred in failing to consider whether marital funds used to pay the mortgage on property that was the husband’s separate property lost their classification as marital when they were commingled with husband’s separate property, pursuant to § 20-107.3 .Frye v. Frye, 2011 Va. App. LEXIS 147 (Va. Ct. App. May 3, 2011).

Considering the separate subsections of § 20-107.3 together, when ordering reimbursement of contributed separate property under § 20-107.3 (A)(3)(g), a court shall determine the value of the contributed property as of the date of the evidentiary hearing. Anthony v. Skolnick-Lozano, 63 Va. App. 76, 754 S.E.2d 549, 2014 Va. App. LEXIS 61 (2014).

Pursuant to the plain language of § 20-107.3 , trial courts may consider commingling of property that occurs before the marriage of the parties in fashioning an equitable distribution award. Anthony v. Skolnick-Lozano, 63 Va. App. 76, 754 S.E.2d 549, 2014 Va. App. LEXIS 61 (2014).

Trial court’s equitable distribution award erred because, while the court properly considered a husband’s commingled pre-marital contribution to property accumulated by the parties for the benefit of the marriage eligible for reimbursement, under § 20-107.3 (A)(3)(g), the husband did not prove the value of the husband’s contribution at the time of the evidentiary hearing. Anthony v. Skolnick-Lozano, 63 Va. App. 76, 754 S.E.2d 549, 2014 Va. App. LEXIS 61 (2014).

Post-separation payments of separate funds on marital property presented commingling scenario. —

Trial court did not err when it failed to award husband a credit for his post-separation mortgage payments on farm property. Husband did not contest the trial court’s classification of the farm property as marital. Husband incorrectly couched these payments as the post-separation acquisition of separate property. Instead, because the farm property was marital, any post-separation contribution by husband of his separate funds that increased the value of the farm property presented a commingling scenario. In this case, husband offered no evidence that established the source of the funds he used to make the post-separation payments on the mortgage. Raab v. Raab, No. 0669-97-4 (Ct. of Appeals Dec. 23, 1997).

College tuition accounts funded with marital property. —

Trial court properly ordered the equitable distribution of three college tuition accounts held in the names of the parties’ children and the wife, as said accounts were established during the marriage with marital money, making them marital property, despite the stated purpose; because the wife could withdraw all of the money therein at any time, these accounts were properly held to be de facto savings accounts in the wife’s name, they were subject to equitable distribution. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Partnership efforts. —

Where partnership efforts have contributed nothing to the acquisition or maintenance or preservation of the property, no basis exists for its being classified as a marital asset. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Defunct partnership property. —

When the defunct partnership is dissolved, the property acquired through partnership contributions must be identified and classified as marital property. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Business begun during marriage. —

Because business was begun during marriage using marital assets, it could properly be classified as a marital asset. Noell v. Noell, 2000 Va. App. LEXIS 99 (Va. Ct. App. Feb. 15, 2000).

As a limited liability company in which the wife had a 95 percent ownership interest came into being during the marriage, it was presumed to be marital property under subdivision A 2 of § 20-107.3 .Johnson v. Johnson, 2006 Va. App. LEXIS 442 (Va. Ct. App. Oct. 3, 2006).

Husband’s separate assets in business were transmuted into marital property by commingling. —

Given the complexity of a husband’s sawmill business and the vast commingling of separate and marital funds, a trial court did not err in concluding that the articles of husband’s separate property did not retain their separate classification among the business’s numerous assets and acquisitions. The business was entirely marital property. Campbell v. Campbell, 2011 Va. App. LEXIS 264 (Va. Ct. App. Aug. 9, 2011).

Where husband’s partnership interest was received in exchange for consideration which he provided, whether monetary or otherwise, it cannot be defined as a gift, and does not qualify for treatment as separate property under subdivision (A) (1) (ii). Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

Bonus received after separation held marital property. —

A bonus received by a husband from his employer was marital property even though the husband was required to be employed at the end of the year to qualify for the bonus and the parties’ had separated a month before the end of the year, where the bonus represented compensation for the husband’s labor during the entire year and, thus, was property acquired prior to the separation. Joynes v. Payne, 35 Va. App. 386, 545 S.E.2d 561, 2001 Va. App. LEXIS 235 (2001).

Commingling need not work inequity. —

Finding that separate property has been transmuted into marital property by commingling need not work an inequity to the party who brought the separate property to the marriage because, when making a monetary award under the statute, the trial judge must consider, among other factors, the contribution of each party in acquiring, preserving, and maintaining property. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

The trial court erred when it held the real estate was husband’s separate property. Since the parties treated the real estate as marital property and expressed an intent that it be treated as such in writing, the real estate was transmuted to marital property. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

Premarital equity in home. —

Trial court did not err when it disallowed wife a credit for her premarital interest in parties’ home, which was subsequently retitled to her and her husband jointly. Underwood v. Angle, 1999 Va. App. LEXIS 509 (Va. Ct. App. Aug. 31, 1999).

Any improvements to marital property made during course of marriage become marital property. Leffel v. Leffel, No. 0644-85 (Ct. of Appeals Aug. 26, 1986).

Husband inherited several parcels of land from his family and under § 20-107.3 , the husband’s separate property included those parcels. Two parcels were valued at their fair market values when they were inherited to determine the value of the husband’s separate property and the remainder of the current fair market value was treated as marital property because it was shown that the parcels were improved to a mobile home park using their marital assets or their personal efforts. Fitzgerald v. Fitzgerald, 2005 Va. App. LEXIS 285 (Va. Ct. App. July 19, 2005).

Classification did not change because husband’s mother died after parties separated. —

Trial court did not err by excluding from evidence wife’s proffered exhibits, which were based on a claim that the classification or value of the property may have changed because the husband’s mother died after the parties had separated and after the evidence was last taken in the case; irrespective of any additional interest that the husband may have acquired by virtue of his mother’s death, assuming that before the separation he had only a remainder interest, such additional interest acquired after separation would have been classified as separate property; consequently, because the mother’s death was not relevant to the classification of the property, the proffered documents were likewise not relevant. Roach v. Roach, No. 0006-92-3 (Ct. of Appeals Sept. 8, 1992).

Appreciation in value of separate property acquired during marriage is not marital property nor transmutes separate property to marital property due to the active efforts of the parties during the marriage, since property cannot consist of a portion that is separate and a portion that is through appreciation deemed marital. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

Income from separate property not marital property. —

Trial court erred in ruling that income from a partnership in which the wife held a 95 percent interest, which was used to pay down a mortgage on partnership’s warehouse, was marital property. Under § 20-107.3 , income earned by a spouse’s separate property may be marital property only after it is “received” from the separate property. Johnson v. Johnson, 2006 Va. App. LEXIS 442 (Va. Ct. App. Oct. 3, 2006).

Marital property cannot become separate without agreement. —

Although separate property, by the manner in which it is maintained, may be commuted into marital property, marital property, in the absence of a valid, express agreement by the parties, cannot become the separate property of one of the parties. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407 (1987), aff’d, 15 Va. App. 120, 421 S.E.2d 218 (1992), In accord with bound volume. See Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

Treatment of property as part marital and part separate improper. —

This section contemplates only two kinds of property — marital property and separate property, each expressly defined. It does not recognize a hybrid species of property. Treatment of the husband’s interest in the farm as part marital and part separate was improper under this section and this error required reversal of the decree. The trial court should not have classified a single asset as both marital and separate property. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

To the extent that funds in a savings account initiated by the husband prior to the marriage can be identified as having been “acquired before the marriage,” they are the separate property of the husband. To the extent that the funds can be identified as having been “acquired during the marriage” from the husband’s income from his employment, as opposed to income generated from the funds in the account, they are marital property and not his separate property. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

Bank accounts held as marital property. —

Where the trial judge heard evidence that the bank accounts were opened in order to provide for the children’s education and later used as an account for the deposit of funds for the children’s support and the accounts were maintained in the names of the wife and the children, the evidence permitted the inference that the parties opened the accounts during their marriage; moreover, the record established that the pre-separation amounts in the two accounts were marital property, therefore, there was no error in the trial judge’s classification of the accounts as marital property. Burton v. Burton, 1994 Va. App. LEXIS 233 (Va. Ct. App. Apr. 26, 1994).

Wife’s substantial nonmonetary contributions to marriage and husband’s business. —

Where although husband acquired his interest in an insurance adjuster’s business before marriage, his vocational efforts to support his family throughout eight years of marriage were devoted to working in and establishing the adjusting business and during that same time, the wife made substantial nonmonetary contributions to the marriage, including entertaining the husband’s business associates and accompanying him to business conventions and business-related functions, which he expected for his business purposes, the evidence was sufficient to support the trial judge’s holding that the wife’s nonmonetary contributions to the husband’s business and the marriage, and the husband’s contributing his efforts and earnings throughout the marriage, transmuted his interest, which had been separate property, into marital property. Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294, 9 Va. Law Rep. 1077, 1993 Va. App. LEXIS 72 (1993).

Passive appreciation in family business interest. —

Trial court properly found, under subdivision A 3 a of § 20-107.3 , that 90 percent of the appreciation, during the parties’ marriage, of the value of the husband’s separate property interest in his family’s business was attributable to the efforts of others or passive appreciation, rather than to the husband’s efforts, and was, therefore, the husband’s separate property. Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833, 2003 Va. App. LEXIS 192 (2003).

The trial court erred when it held that the shopping center interest was the wife’s separate property, rather than the marital property of the parties, where the purchase funds were borrowed from the wife’s father, and the father later forgave the note securing the funds. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

Trial court erred in finding that the marital residence was wife’s separate property where wife obtained title as part of an earlier separation agreement which later became invalid as a result of reconciliation; wife obtained title during the marriage and by means other than gift or inheritance. Garland v. Garland, 12 Va. App. 192, 403 S.E.2d 4, 7 Va. Law Rep. 2017, 1991 Va. App. LEXIS 56 (1991).

Property held separate. —

Purchase of a new automobile and furniture using funds from post-separation wages in bank account are classified as separate property. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

The record supported the chancellor’s determination that the property was acquired solely by husband after the parties had permanently separated, accordingly, the classification of the property as the separate property of husband was not error. Lowe v. Lowe, 1994 Va. App. LEXIS 252 (Va. Ct. App. May 3, 1994).

Under this section, passive income earned by or on separate property remains separately classified, including that earned on the separate portion of a retirement plan. Mann v. Mann, 22 Va. App. 459, 470 S.E.2d 605, 1996 Va. App. LEXIS 381 (1996).

Evidence was sufficient to support trial court’s award of fifteen percent of equity in marital residence to husband as his separate property, based on finding that husband contributed $7,500 in separate funds toward purchase of residence. Mumford v. Mumford, 1999 Va. App. LEXIS 613 (Va. Ct. App. Nov. 2, 1999).

Trial court did not err in finding that real estate titled solely in wife’s name was her separate property. Edmonds v. Edmonds, 1999 Va. App. LEXIS 342 (Va. Ct. App. June 15, 1999).

Property, given to the wife during the marriage, was jointly titled and, therefore, presumed marital property, but the wife presented sufficient evidence to trace the purchase of the home to her separate funds; thus, the trial court did not err in finding that the wife’s contributions of separate property, exceeded the value of the jointly-titled real property and that the husband made no separate contribution to the property. Marshall v. Marshall, 2003 Va. App. LEXIS 378 (Va. Ct. App. July 1, 2003).

Trial court properly found that a husband maintained the proceeds received from the sale of a third disputed property as separate property as: (1) the husband did not commingle the proceeds with marital property; (2) he did not retitle the proceeds in the joint names of the parties; (3) no evidence established that husband intended to gift the proceeds to his wife; and (4) the wife cited no authority for her claim that her management of the husband’s separate funds was evidence that the husband did not maintain the proceeds as separate property. Courembis v. Courembis, 43 Va. App. 18, 595 S.E.2d 505, 2004 Va. App. LEXIS 203 (2004).

Trial court properly awarded certain jointly titled real property to a wife in a divorce action as her separate property where the wife rebutted the presumption that it was marital property by proving it was a gift from her father. Ziolkowski v. Ziolkowski, 2004 Va. App. LEXIS 394 (Va. Ct. App. Aug. 17, 2004).

Trial court properly held that the husband in the divorce case presented sufficient credible evidence that the husband’s contributions toward the purchase of the marital home were derived from the husband’s separate property; the husband showed that the husband had three investment accounts before the husband’s marriage, that the husband placed some of the funds from those accounts into one brokerage account in the husband’s sole name, and that those funds went specifically to the realtor and closing agent dealing with the marital home, and, thus, the trial court did not err in finding that the husband contributed a certain amount of the husband’s separate property to the purchase of the marital home. Tesfay v. Tesfay, 2007 Va. App. LEXIS 127 (Va. Ct. App. Mar. 27, 2007).

In divorce proceedings, the trial court did not err in classifying the income derived from a foreign residence as a separate asset under subdivision A 1 of § 20-107.3 as appellee husband’s family managed the property and the husband’s personal efforts did not enhance the asset. Ulka Ghulam v. Ghulam Ali Sidiqi, 2007 Va. App. LEXIS 452 (Va. Ct. App. Dec. 18, 2007).

Property held not separate. —

Father’s initial interest in the pharmacy partnership, when later conveyed to the husband, did not qualify as the husband’s separate property because the evidence does not establish that the gift was maintained as separate property. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

In a divorce action, the wife did not succeed in retracing the wife’s entire separate contribution to a brokerage account; while the wife’s act of depositing marital funds into the wife’s separately titled brokerage account resulted in the presumption that the marital funds were transmuted back into the wife’s separate property, under § 20-107.3 , such contributed property retained its classification as marital, as it was retraceable by a preponderance of the evidence and was not a gift. Zalusky v. Zalusky, 2002 Va. App. LEXIS 690 (Va. Ct. App. Nov. 19, 2002).

Where a former husband had sole possession of the marital property during the parties’ separation and rented it to third parties, the trial court properly considered the fair rental value of the property as part of its equitable distribution award; that the husband held sole legal title to the property while it was being rented was immaterial, as it was undisputed that the property was marital. Anderson v. Anderson, 42 Va. App. 643, 593 S.E.2d 824, 2004 Va. App. LEXIS 110 (2004).

Where a former husband failed to prove that an RV purchased during his marriage was acquired with his separate property, the settlement proceeds from litigation regarding the RV were properly classified as marital property under subsection E. Matthews v. Matthews, 2004 Va. App. LEXIS 314 (Va. Ct. App. July 6, 2004).

Trial court erred in finding that a wife had proven that a portion of the funds she used towards the purchase of the marital residence came from her separate property as evidence that the wife initially deposited separate funds in an account was insufficient to satisfy the Rahbaran test, in light of the hybrid nature of the account, and the wife introduced no evidence as to the deposits and withdrawals that might have occurred from the time she opened the account to the time she withdrew funds from it for the purchase of the marital home; the wife failed to show that the separate funds she used to open the account had not been used for another purpose prior to the purchase of the marital residence, leaving only marital funds in the account at the time she withdrew funds in order to acquire the marital residence. Towner v. Towner, 2006 Va. App. LEXIS 430 (Va. Ct. App. Sept. 26, 2006).

Although the trial court did not consider the wife’s insurance agency as a marital asset, all of the assets of the business were treated as marital property, including the building, and the husband did not prove the insurance business had any goodwill, nor did he provide the trial court with sufficient information to value such an asset. Therefore, while the trial court’s classification of the business as a whole was technically incorrect, the court did properly classify everything of value that was related to the insurance business. Carrington v. Carrington, 2008 Va. App. LEXIS 250 (Va. Ct. App. May 20, 2008).

Separate property used for down payment on marital property. —

Where separate property is used for a down payment on property that becomes marital property, the trial court does not abuse its discretion to make an award that restores the down payment to the contributing spouse. Hauger v. Hauger, No. 1887-93-1 (Ct. of Appeals Feb. 28, 1995).

When a husband contributed substantial separate assets to the down payment on the parties’ marital home, it was error for the trial court, in making an equitable distribution award, not to consider the monetary contributions of each party to the marital home, subdivisions E 2 and E 6. Lesesne v. Zablocki, 2007 Va. App. LEXIS 6 (Va. Ct. App. Jan. 9, 2007).

Trial court erred in not awarding the wife her separate interest in property she and the husband purchased during their marriage because both parties conceded that the wife paid the down payment of the property from her traced separate property. Canedo v. Canedo, 2013 Va. App. LEXIS 61 (Va. Ct. App. Feb. 26, 2013).

4.Transmuted and retitled property.

Transmutation of property. —

When a spouse fails to segregate and instead, commingles, separate property with marital property, the chancellor must classify the commingled property as marital property subject to equitable distribution. Smoot v. Smoot, 233 Va. 435 , 357 S.E.2d 728, 3 Va. Law Rep. 2690, 1987 Va. LEXIS 212 (1987).

Where a spouse fails to keep separate property segregated, but allows it to become commingled with marital property, the commingled property is transmuted to marital property, subject to equitable distribution. Snyder v. Snyder, No. 1790-92-3 (Ct. of Appeals March 30, 1993).

The Supreme Court adopted the doctrine of transmutation in Smoot v. Smoot , 233 Va. 435 , 357 S.E.2d 728 (1987), holding that “when . . . a spouse fails to segregate and instead, commingles, separate property with marital property, the chancellor must classify the commingled property as marital property subject to equitable distribution.” Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

The law in this state recognizes a presumption that property is marital, and when separate and marital property are commingled to create a “new” piece of property, transmutation has occurred. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Even if a party can prove that some part of an asset is separate, if the court cannot determine the separate amount, the unknown amount contributed from the separate source transmutes by commingling and becomes marital property. Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135, 1997 Va. App. LEXIS 763 (1997).

Where a husband sold a home owned by him prior to the marriage and the proceeds had been used to purchase a home for the couple and their growing family, the entire proceeds of the sale of the first home were gifted marital property and were to be treated as such for purposes of equitable distribution. Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908, 2000 Va. App. LEXIS 605 (2000).

Before the husband sold first property, it had been transmuted into marital property when it was retitled and because the wife had contributed her separate property towards its renovation and had expended her own labor on repairing and refurbishing the residence and the husband did not prove that he retained separate interest that was traceable through second property, which was purchased with funds from the sale of the first property, to jointly-owned condominium; thus, the condominium was marital property. Harris v. Harris, 2003 Va. App. LEXIS 372 (Va. Ct. App. July 1, 2003).

Although husband had property prior to marriage and purchased more in his name during the marriage, the parties’ marital funds were hopelessly commingled; as a result, pursuant to subdivision A 3 of § 20-107.3 , the separate properties were transmuted into marital property. Plunkett v. Plunkett, 2004 Va. App. LEXIS 76 (Va. Ct. App. Feb. 17, 2004).

Trial court erred in finding that a wife’s contributions to renovation of a house that was the husband’s separate property transmuted the house from separate to marital property since, even if the entire increase in the house’s value was attributed to the wife’s contributions, the husband would have retained separate funds from the proceeds of the house’s sale; the trial court also erred in finding insufficient evidence to retrace the husband’s separate property from a subsequent marital residence. Harris v. Harris, 2004 Va. App. LEXIS 138 (Va. Ct. App. Mar. 30, 2004).

In a divorce suit, a trial court properly held that funds used as a down payment for marital residence, as well as co-mingled funds in four joint bank accounts controlled by the husband, were transmuted into marital assets under subdivision A 3 because the husband failed to prove by a preponderance of the evidence that the funds were directly traceable to his premarital assets. Patel v. Patel, 2006 Va. App. LEXIS 418 (Va. Ct. App. Sept. 12, 2006).

Trial court did not err in holding that the equity in certain property was marital property, acquired by duly traced marital funds, and in awarding a wife one-half of that equity because the wife traced the infusion of marital funds and proved that the acquired equity in the property derived from marital funds; the wife and husband received rental income from the property, and the mortgage was paid with marital funds. Duva v. Duva, 2011 Va. App. LEXIS 322 (Va. Ct. App. Oct. 25, 2011).

Classification of a home as marital property was neither plainly wrong nor without evidence to support it where the husband failed to satisfy his burden of tracing any identifiable separate interest in the equity in the home that remained from his original separate interest in another home. Mograbi v. Abdellatif, 2012 Va. App. LEXIS 160 (Va. Ct. App. May 15, 2012).

Circuit court properly classified property that a husband purchased before the marriage as wholly marital because the home was jointly titled in both parties’ names in order to allow them to share the debt of the property and of their new property, both parties contributed equally to repairs and improvements, there was insufficient evidence about the source of the funds used to pay the mortgage, it was unclear whether any rental income from the property was used to fund the account or to pay any portion of the mortgage, and the husband’s failure to present evidence relating to value, equity, and cost of repairs prevented the circuit court from determining the precise amount he separately contributed. Jackson v. Jackson, 2018 Va. App. LEXIS 358 (Va. Ct. App. Dec. 26, 2018).

Circuit court did not err by classifying property as the wife’s separate property because the marital contributions transmuted to separate property; the husband failed to trace the marital contributions to a corresponding marital equity in the wife’s separate property. Dixon v. Dixon, 2019 Va. App. LEXIS 95 (Va. Ct. App. Apr. 23, 2019).

Transmutation occurred where the parties commingled separate and marital property to create a “new” piece of property. This same transmutation occurs when the parties make an agreement that separate property shall be marital property. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

When husband made mortgage payments on property from the same account in which he deposited his wages, the property lost its separate character and was transmuted to marital property. Taylor v. Taylor, 9 Va. App. 341, 387 S.E.2d 797, 6 Va. Law Rep. 1211, 1990 Va. App. LEXIS 11 (1990).

Husband inherited property from his family and the property was sold. There was evidence to support the lower court’s conclusion that the property was transmuted by gift into marital property since the note the parties received from the sale of the property listed the husband and wife as payees and since the parties wanted the property to stay in the family when they repossessed it. Fitzgerald v. Fitzgerald, 2005 Va. App. LEXIS 285 (Va. Ct. App. July 19, 2005).

Under § 20-107.3 , the marital funds, by paying the mortgage on the separate property, were commingled with the Rhode Island property (the receiving property) and were transmuted into the separate property; the burden would then be on the wife to trace the contribution for the marital funds to retain the classification of marital property. Duva v. Duva, 55 Va. App. 286, 685 S.E.2d 842, 2009 Va. App. LEXIS 536 (2009).

There was sufficient evidence to the finding that a farm was marital property because the farm was sold to the husband and wife jointly, and the husband did not inherit or receive the property as a gift; the farm became transmuted, untraced marital property following the sale to the husband and wife. Stevens v. Stevens, 59 Va. App. 274, 717 S.E.2d 854, 2011 Va. App. LEXIS 391 (2011).

Circuit court properly determined that the former marital home was the wife’s separate property because a deed, transferring the home from the husband and the wife to the wife only, after the last separation of the parties was a marital agreement, and the husband’s other arguments on appeal were not preserved for review. Oberlander v. Oberlander, 2018 Va. App. LEXIS 209 (Va. Ct. App. July 31, 2018).

Insufficient evidence of transmutation. —

Because a husband paid for the marital residence in full before the marriage, and because its value did not increase from the parties’ significant personal efforts or contributions from marital property, the marital residence maintained its classification as husband’s separate property; therefore, the trial court erred in classifying it as hybrid property. Ranjbar v. Ranjbar, 2011 Va. App. LEXIS 300 (Va. Ct. App. Oct. 4, 2011).

Trial court improperly determined that a wife’s personal efforts transmuted a house from separate to marital property because there was no evidence that the wife contributed legally significant personal efforts that substantially increased the value of the residence; the wife’s personal efforts amounted to no more than customary care, maintenance, and upkeep of the house. Pratt v. Pratt, 2011 Va. App. LEXIS 410 (Va. Ct. App. Dec. 20, 2011), vacated in part, No. 2394-10-4, 2012 Va. App. LEXIS 286 (Va. Ct. App. Aug. 21, 2012).

Trial court did not err in holding that a husband’s property did not transmute to hybrid but was his separate property because the wife failed to carry her burden of proving that the property increased in value during the marriage; the wife did not present any evidence of the value of the husband’s property as of the date of the marriage. Canedo v. Canedo, 2013 Va. App. LEXIS 61 (Va. Ct. App. Feb. 26, 2013).

Using separate property a husband inherited to secure a loan, which was to be used for marital purposes and was subsequently repaid in full using marital funds, did not transmute the pledged property into marital property. Because the discharge of the five loans did not increase the value of the inherited real estate under subdivision A 1 of § 20-107.3 or commingle marital and separate assets, the trial court erred in finding that the inherited property transmuted to marital property. Layman v. Layman, 62 Va. App. 134, 742 S.E.2d 890, 2013 Va. App. LEXIS 172 (2013).

Retitled property. —

Evidence supported finding that, in recording deed of gift, husband intended to make an unconditional gift to his wife of one-half of full equity in house. Foreman v. Ketchum, No. 2092-98-4 (Ct. of Appeals July 27, 1999).

Statutory law concerning division of marital property stated that marital property consisted of all property titled in the names of both parties, including where they were designated as tenants by the entirety, except for one exception that did not apply, and, thus, the former husband’s separate property that he had retitled in his and the former wife’s name as a tenancy by the entirety was marital property. Utsch v. Utsch, 266 Va. 124 , 581 S.E.2d 507, 2003 Va. LEXIS 57 (2003).

Partnership in which a former wife held a 95 percent ownership interest sold a warehouse to a limited liability company, in which she also had a 95 percent interest. Under either subdivision A 3 e or A 3 f of § 20-107.3 , the evidence supported a finding that her ownership interest in the LLC remained unchanged and that she maintained the same percentage of ownership interest in the LLC’s sole asset, the warehouse. Johnson v. Johnson, 2006 Va. App. LEXIS 442 (Va. Ct. App. Oct. 3, 2006).

It was error for a trial court to find that when a husband and wife retitled their marital home to change their interests from tenants in common to tenants by the entirety with right of survivorship the husband made a gift to the wife of his separate interest in the marital home, because retitling the house did not prove a gift, and the wife did not prove by clear and convincing evidence that the husband intended to give her this gift because he testified that he had no such intent and her belief that he did was uncorroborated. Lesesne v. Zablocki, 2007 Va. App. LEXIS 6 (Va. Ct. App. Jan. 9, 2007).

In applying the equitable distribution factors of § 20-107.3 , a trial court erred in equally allocating funds remaining from the sale of property that the husband had owned prior to the marriage, but that the wife had retitled and refinanced solely in her name, although it classified the property as the wife’s separate property. Because the trial court classified the property as separate, the funds from the refinance should have also been distributed as the wife’s separate property. Dunfee v. Dunfee, 2010 Va. App. LEXIS 500 (Va. Ct. App. Dec. 28, 2010).

Trial court did not err in ruling that a wife conveyed any interest that she had in certain property lots to her husband by deed of gift and that the lots were the husband’s separate property because the court’s finding that the signatures by the wife and a notary on a deed of gift were valid was not plainly wrong or without evidence to support it. Burton v. Burton, 2012 Va. App. LEXIS 96 (Va. Ct. App. Apr. 3, 2012).

For purposes of the equitable distribution of property upon the termination of the parties’ marriage, the parol evidence rule did not bar the trial court from considering the ex-husband’s testimony about the Michigan deed of property, including his testimony that he did not realize that he was conveying a present interest in the property to his ex-wife; thus, the trial court did not err in finding that the Michigan property belonged to the husband as his separate property. Frakes v. Frakes, 2017 Va. App. LEXIS 191 (Va. Ct. App. Aug. 1, 2017).

Retitled property — Parole evidence not admissible. —

Since the separate property of the former husband was retitled in the joint names of the former husband and the former wife, the retitled property was deemed transmuted to marital property and, indeed, the language of the deed of gift showed the former husband’s unambiguous intent to make a gift of the property to the marital estate; accordingly, the appellate court erred in finding that parol evidence was admissible to allow for an examination of the circumstances surrounding the execution of the deed. Utsch v. Utsch, 266 Va. 124 , 581 S.E.2d 507, 2003 Va. LEXIS 57 (2003).

The goal of the tracing process is to link a transmuted asset to its primary source, which is either separate property or marital property; whether a transmuted asset can be traced back to a separate property interest is determined by the circumstances of each case, including the value and identity of the separate interest at the time of the transmutation. Von Raab v. Von Raab, 26 Va. App. 239, 494 S.E.2d 156, 1997 Va. App. LEXIS 761 (1997).

Stock received from family was not transmuted into marital property. —

Where evidence revealed that shares of stock given by husband’s father and brother prior to the marriage, and the 451 shares given by husband’s father during the marriage, did not appreciate due to effort of either husband or wife, the evidence failed to support a finding that the shares of stock received from father and brother were transmuted into marital property. Huger v. Huger, 16 Va. App. 785, 433 S.E.2d 255, 10 Va. Law Rep. 53, 1993 Va. App. LEXIS 315 (1993).

Stock husband received upon signing note was marital property. —

Where 1,967 shares of the Lexington Company and 2,160 shares of the Staunton Company transferred from husband’s mother to husband, and where the facts indicated that husband received his mother’s stock upon signing a promissory note for $71,547 bearing interest at seven percent per annum, if husband’s mother called the note, the debt incurred during the marriage would have been paid out of the marital estate; therefore, this exchange was not a gift, and the trial court was correct in concluding that the stock received from the mother was marital property. Huger v. Huger, 16 Va. App. 785, 433 S.E.2d 255, 10 Va. Law Rep. 53, 1993 Va. App. LEXIS 315 (1993).

5.Increase in value, personal efforts, etc.

Increase in value of property. —

If spouse proves that passive factors account for a portion of the increase in the value of his stock, such increase cannot be properly classified as marital property. Similarly, where third parties contribute to the increase in value of separate property, the marital portion is to be reduced proportionately. The increase classifiable as marital should reflect only that attributable to the parties’ personal efforts and not those of others or passive factors. DeHaven v. DeHaven, 1997 Va. App. LEXIS 208 (Va. Ct. App. Apr. 8, 1997).

In order to establish that the increase in the value of the marital residence was marital property, wife had to prove either that contributions of marital property or her personal efforts or both resulted in the increase, and that the personal effort was “significant” and resulted in “substantial appreciation” of husband’s separate property interest in the marital residence. Martin v. Martin, 25 Va. App. 551, 489 S.E.2d 727, 1997 Va. App. LEXIS 568 (1997).

Where wife’s evidence supported conclusion that she made “significant personal effort” which resulted in the substantial appreciation of husband’s separate property and husband put on no evidence to the contrary, the trial court could properly classify as marital property the entire increase in value of husband’s separate property at the time of the purchase. Martin v. Martin, 25 Va. App. 551, 489 S.E.2d 727, 1997 Va. App. LEXIS 568 (1997).

Wife did not support conclusion that she made “significant personal effort” which resulted in the substantial appreciation of husband’s separate property, where other than her conclusory assertion that she had some real estate “acumen,” she offered no evidence to prove the property was more valuable than the price paid or that husband relied upon her “personal efforts” in investing in property. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

Subsection A contemplates a “significant personal effort” that substantially affects the value of the property, not merely a joint decision that may have been influenced by one spouse. “Significant” is defined as having or likely to have influence or effect; deserving to be considered; important, weighty, notable. Therefore, wife’s efforts were not “significant” factors affecting the value of the property where evidence proved nothing more than that she and her husband decided to purchase the property because she thought it would be a good investment. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

A party does not meet the burden of proving that “contributions of marital property were made” under subsection A by merely establishing that marital funds were expended for customary maintenance and upkeep of the property. The term “contribution of marital property” within the meaning of this section contemplates an improvement, renovation, addition, or other contribution which, by its nature, imparts intrinsic value to the property and materially changes the character thereof. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

When subdivisions A 1, A 2, and A 3 a of this section are read together, they provide that where separate property can be retraced from commingled property, the increased value in that separate property is presumed to be separate, unless the non-owning spouse proves that contributions of marital property or personal effort caused the increase in value. Once the non-owning spouse overcomes the presumption of separateness of the increase in value, the burden shifts to the owning spouse to prove that the increase in value or some portion thereof was not caused by contribution of marital property or significant personal effort. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

The trial court erred, as an initial matter, by failing to determine whether and to what extent husband’s separate property interest in home increased in value, attributable to the passive appreciation in the market value of the property, exclusive of improvements or additions resulting from marital contributions or significant personal effort. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

Although Virginia has not adopted an exclusive method for determining how to apportion the increase in value of retraced separate property, the trial court should have applied the “Brandenburg formula” or other acceptable method, to initially calculate the increase in value of husband’s separate property share of the marital residence. Martin v. Martin, 27 Va. App. 745, 501 S.E.2d 450, 1998 Va. App. LEXIS 427 (1998).

The increase in value of separate property becomes marital if the expenditure of marital funds or a married party’s personal efforts generated the increase in value. The significant factor, however, is not the amount of effort or funds expended, but rather the fact that value was generated or added by the expenditure or significant personal effort. Moran v. Moran, 29 Va. App. 408, 512 S.E.2d 834, 1999 Va. App. LEXIS 191 (1999).

The expenditure of marital funds in connection with a separate asset does not, without more, justify classifying an increase in value or appreciation of that asset as marital rather than separate property. Moran v. Moran, 29 Va. App. 408, 512 S.E.2d 834, 1999 Va. App. LEXIS 191 (1999).

The discharge of a debt secured by an asset that results in an increase in equity in the asset constitutes an increase in value. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

To the extent a non-owning spouse claims that an increase in value of separate property was attributable to personal efforts, the non-owning spouse must prove that the personal efforts were “significant” and resulted in “substantial appreciation” of the owning spouse’s separate property interest. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

A trial court erred in treating all of the increase in value of stock in a family business owned by the husband as marital property where it was clear that a significant portion of the increase in value was due to the efforts of the husband’s brother and to passive factors affecting the business; the increase classifiable as marital should have reflected only that attributable to the husband’s personal efforts. Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908, 2000 Va. App. LEXIS 605 (2000).

A trial court erred in refusing to reevaluate stock owned by the husband where, following the initial valuation and while the case was pending on appeal, the husband sold the stock for more than four times the value estimated by the expert witnesses at the time of the initial evaluation. Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908, 2000 Va. App. LEXIS 605 (2000).

Where an asset that is subject to equitable distribution is retained by one of the parties for a period of time after valuation but before the equitable division occurs, and where the asset significantly increases or decreases in value during that time through neither the efforts or fault of either party, neither party should disproportionately suffer the loss or benefit from the windfall; under those circumstances, a trial court abuses its discretion by failing to re-value the property when a party has made a timely motion to do so and is prepared to present evidence on the issue. Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908, 2000 Va. App. LEXIS 605 (2000).

To satisfy the requirements of § 20-107.3 , the record should include evidence of the monetary value of the spouse’s personal efforts as well as evidence of a substantial increase in the value of the property resulting from those efforts. Harris v. Harris, 2004 Va. App. LEXIS 138 (Va. Ct. App. Mar. 30, 2004).

Trial court properly found that the increase in the value of a second disputed property during the parties’ marriage was marital property where: (1) the property was purchased with the husband’s separate property funds; (2) the wife met her burden of showing that the efforts of both the husband and the wife contributed to the increase in value; and (3) the husband did not present any credible evidence to prove that the increase in value was not caused by contributions of marital effort, and conceded that some of the increase in value derived from his efforts to assemble the lots during the marriage. Courembis v. Courembis, 43 Va. App. 18, 595 S.E.2d 505, 2004 Va. App. LEXIS 203 (2004).

Trial court’s finding that a portion of the proceeds from a first disputed property constituted marital property subject to equitable division was not plainly wrong as: (1) the property was acquired by the husband before the marriage; (2) the wife’s contributions to the property of setting up the details of the auction for a couple of days, and helping conduct the auction, were insufficient to convert a portion of the property into marital property as a matter of law; (3) however, the husband’s efforts contributed to the increase in the property’s value as after the husband filed a site plan, the value of the property increased threefold; and (4) a plain reading of subdivision A 3 a of § 20-107.3 confirmed that either party’s personal efforts could contribute to the increase in value and that such an increase in value constituted marital property. Courembis v. Courembis, 43 Va. App. 18, 595 S.E.2d 505, 2004 Va. App. LEXIS 203 (2004).

Husband presented insufficient evidence to prove the husband’s personal contributions increased the value of real property purchased before the parties’ marriage by the wife and the wife’s father to satisfy the husband’s burden under subdivision A 3 of § 20-107.3 . In addition, the trial court was not at liberty to diminish the husband’s burden of proof, as set forth by the legislature in subdivision A 3 of § 20-107.3 .Burstein v. Morriss, 2007 Va. App. LEXIS 303 (Va. Ct. App. Aug. 14, 2007).

Former wife was not entitled to any portion of the value of her former husband’s separate property, as payments for real estate taxes from marital property did not increase the value of the separate property. Stout v. Stout, 2009 Va. App. LEXIS 354 (Va. Ct. App. Aug. 11, 2009).

In fashioning an equitable distribution award, the trial court failed to properly classify an increase in the value of a husband’s separate stock shares where it failed to take the husband’s post-separation personal efforts into account when it found that the entire increase in value of those shares was marital property. Tucker v. Wilmoth-Tucker, 2010 Va. App. LEXIS 199 (Va. Ct. App. May 18, 2010).

Trial court’s finding that the increase in value to one spouse’s business was hybrid property, rather than marital property, was not plainly wrong or without evidence to support it. Burton v. Burton, 2012 Va. App. LEXIS 96 (Va. Ct. App. Apr. 3, 2012).

Trial court did not err in classifying a spouse’s interest in a real estate development project “which was acquired during the marriage” as marital property and dividing it equally between the parties, even though the project increased in value after the parties’ separation, because the spouse’s interest in the project came into being during the marriage and it was, therefore, marital property. Peck v. Peck, 2014 Va. App. LEXIS 113 (Va. Ct. App. Mar. 25, 2014).

Once the wife established that the brokerage account significantly increased in value and that the husband made significant personal efforts with regard to the account, it was incumbent on the husband to prove that the increase in value occurred for reasons other than his personal efforts; the parties declined the opportunity to present additional evidence, and the case was remanded for the trial court to determine based on the record whether the increase in value was caused by the husband’s significant efforts or whether the increase occurred for some other reason. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

Burden of proof. —

Wife had the burden of proving that the brokerage account substantially appreciated during the marriage, and that husband expended significant personal efforts in managing this account, and the burden then shifted to husband to prove that the increase in the value of the account was attributable to something other than his own efforts, like appreciation due to market forces. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

For a portion of the brokerage account to be classified as marital property, the wife had to show that the value of the stock account substantially appreciated during the marriage, and the over $300,000 increase during eight years was substantial; the trial court could rely on the financial statements showing the significant growth in the account’s value to reach a conclusion that the appreciation during the marriage was significant for purposes of the statute. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

Selection of stocks after careful research certainly qualifies as labor, effort, and intellectual skill within the plain meaning of those terms, and in the context of a stock account, routine adjustments to the portfolio, adding to stocks that are performing well and culling underperforming stocks, does not constitute significant personal effort. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

During the eight years of marriage, the husband made 35 trades, which alone was not dispositive, but the trial court could have credited the wife’s testimony about the husband’s extensive research activity and the documents showing the purchase and sale of stocks to conclude that the husband had expended significant personal effort in connection with the brokerage account, and this was not plainly wrong. David v. David, 64 Va. App. 216, 767 S.E.2d 241, 2015 Va. App. LEXIS 19 (2015).

“Personal efforts” not shown. —

Husband’s contribution to building of home, found to be wife’s separate property, was not “significant” in the context of subsection A of § 20-107.3 , as his efforts were largely inadequate and counterproductive, no evidence was presented to prove the husband’s efforts resulted in substantial appreciation in the property, and his negotiations in reducing the construction costs were not the type of “personal efforts” required to transmute a portion of separate property into joint property under subdivision A 3 of § 20-107.3 .Bchara v. Bchara, 38 Va. App. 302, 563 S.E.2d 398, 2002 Va. App. LEXIS 290 (2002).

As there was no evidence that either significant personal efforts or marital property contributed to the increase in the value of a partnership in which the former wife held a 95 percent interest, the trial court properly refused to classify the increase in the partnership’s value as marital property under § 20-107.3 .Johnson v. Johnson, 2006 Va. App. LEXIS 442 (Va. Ct. App. Oct. 3, 2006).

Personal efforts shown. —

Trial court did not err in classifying a corporation as hybrid property because there was sufficient evidence to support the that the husband’s personal efforts were significant and resulted in the increase in value of the company. Starling v. Starling, 2013 Va. App. LEXIS 248 (Va. Ct. App. Sept. 10, 2013).

Stock had not been transmuted to marital property by an “agreement” of the spouses where stock was never made available to anyone other than the husband, and husband never took any action to turn the stock over to the marital estate. Stainback v. Stainback, 11 Va. App. 13, 396 S.E.2d 686, 1990 Va. App. LEXIS 157 (1990).

In this case, the shares of stock owned by husband prior to his marriage were not retitled in the parties’ joint names, commingled with marital property to acquire new property, or commingled with marital property in such a manner as to lose its separate identity. Therefore, the five shares of stock owned prior to marriage were not transmuted and remain husband’s separate property. Challoner v. Challoner, 1997 Va. App. LEXIS 202 (Va. Ct. App. Apr. 1, 1997).

Trial court properly found that the increase in value of an investment account was not marital property and designated it entirely as the husband’s separate property because any increase in value of the account below the increase of the most commonly used benchmark in investing was “passive appreciation.” McConnell v. McConnell, 2019 Va. App. LEXIS 182 (Va. Ct. App. July 30, 2019).

Trial court properly found that the stock at issue was the husband’s separate property because he simply performed mere maintenance on the stock after the marriage in accordance with his pre-marital plan. McConnell v. McConnell, 2019 Va. App. LEXIS 182 (Va. Ct. App. July 30, 2019).

Failure to show increase in value. —

On the husband’s appeal from the parties’ final decree of divorce, the circuit court did not err in declining to consider the hybrid vehicles when determining the equitable distribution award because the husband provided no evidence that the vehicles increased in value; such evidence was required to show what portion of the hybrid vehicles’ value was marital. Leake v. Taylor, 2010 Va. App. LEXIS 126 (Va. Ct. App. Mar. 30, 2010).

Circuit court’s equitable distribution to the wife was improper under subsection A of § 20-107.3 because the wife failed to prove that the husband’s company was a hybrid property. The wife failed to present any evidence of the company’s value prior to the marriage in 1993; because she failed to prove that the company increased in value during the marriage, the circuit court’s classification of husband’s company as hybrid property was plainly wrong and without evidence to support it. Pacot v. Pacot, 2011 Va. App. LEXIS 346 (Va. Ct. App. Nov. 15, 2011).

Evidence proved that the wife acquired the former marital residence by a deed of gift from her father, so it was presumptively her separate property; regardless of any contributions or personal efforts that the husband might have made, he presented no evidence about the value of the former marital residence, and thus he failed to meet his burden of proving that the home’s value increased. The circuit court did not err in classifying the former marital residence as the wife’s separate property, as opposed to hybrid property. Monroe v. Monroe, 2020 Va. App. LEXIS 139 (Va. Ct. App. May 5, 2020).

D.Partition of Marital Property.

In general. —

While subsection C empowers the court to partition marital property in the names of both parties, nowhere else in the statute is the court authorized to assign, allot, or divide marital property titled either in both names or a single name, absent agreement between the parties. The trial court erred in allotting to the wife personal property titled in the husband’s name. McGinnis v. McGinnis, 1 Va. App. 272, 338 S.E.2d 159, 1985 Va. App. LEXIS 98 (1985).

Trial court is required to recognize division that exists in marital property based upon its title and to determine as between the parties their respective rights and interests in the marital property no matter how titled. Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139, 4 Va. Law Rep. 716, 1987 Va. App. LEXIS 226 (1987).

Effect of 1988 amendment. —

The 1988 amendment to subsection C of this section gave the trial judge discretion to order a transfer of the property to one of the parties without first determining whether partition in kind could be conveniently made; thus, under the amended statute, a transferor could be deprived of real property susceptible to partition in kind to which he or she would have been absolutely entitled under § 8.01-83 . Such a fundamental change in the law affects substantive rights and thus the 1988 statutory amendment was not merely procedural. Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432, 7 Va. Law Rep. 1564, 1991 Va. App. LEXIS 22 (1991).

Equitable distribution deviates from traditional views of property ownership in that whether the property is separate or marital is determined by the statutory definition and is not determined by legal title. Lightburn v. Lightburn, 22 Va. App. 612, 472 S.E.2d 281, 1996 Va. App. LEXIS 449 (1996).

The language of subsection C is not mandatory. —

Under subsection C, the trial court had the “authority to apportion and order the payment of the debts of the parties.” However, the language of subsection C is not mandatory. Alphin v. Alphin, 15 Va. App. 395, 424 S.E.2d 572, 9 Va. Law Rep. 624, 1992 Va. App. LEXIS 296 (1992).

Division of marital property not required. —

Subsection C of this section does not require, but merely permits, a court to divide jointly owned marital property. Arends v. Arends, No. 1892-89-4 (Ct. of Appeals, Feb. 5, 1991).

Trial court was not obligated to divide or allocate the parties’ jointly owned parcels of real estate, as they were neither liquid nor suitable for division; since it considered all of the factors in subsection E of § 20-107.3 , it did not abuse its discretion in awarding the parcels to the parties as tenants in common, subject to foreclosure or sale. Fox v. Fox, 61 Va. App. 185, 734 S.E.2d 662, 2012 Va. App. LEXIS 395 (2012).

No presumption of equal distribution. —

There is no statutory presumption of equal distribution under Virginia’s equitable distribution scheme. Edmonds v. Edmonds, 1999 Va. App. LEXIS 342 (Va. Ct. App. June 15, 1999).

Trial court did not err in dividing the equity in the marital residence in favor of the wife, as the evidence in the record supported that decision and there was no presumption in favor of the equal distribution of assets; the ruling was supported by the wife’s testimony that she supplied a greater portion of the down payment for the marital residence and the husband’s testimony also supported the wife’s assertion. Holzberlein v. Holzberlein, 2005 Va. App. LEXIS 312 (Va. Ct. App. Aug. 16, 2005).

A court is not constrained from making an equal division if it finds it appropriate to do so upon consideration of the factors set forth in subsection E. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

Court has discretion to impose protective condition. —

Trial court erred in concluding that it was not authorized to impose a protective condition favoring the former husband on the transfer of the marital residence to the former wife, who had poor credit and always had problems keeping up with her bills, as the trial court had statutory discretion to impose such a condition to make sure that the former wife’s possibility of default did not plague the former husband. Bomar v. Bomar, 45 Va. App. 229, 609 S.E.2d 629, 2005 Va. App. LEXIS 93 (2005).

Allocation of liquid and non-liquid assets. —

While the court is required to consider the liquid or non-liquid character of all marital property, nowhere does the law require parties to receive a proportionate or equal share of the liquid and the non-liquid assets; a trial court’s allocation of liquid and non-liquid assets is a matter of discretion. Iverson v. Iverson, 2000 Va. App. LEXIS 309 (Va. Ct. App. Apr. 25, 2000).

Allotment of specific marital property not titled in names of both parties is not permitted by subsection C. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

Trial court had authority to order partition of the property. Gaynor v. Hird, No. 1393-86-4 (Ct. of Appeals Oct. 4, 1988).

Authority to appoint special commissioner. —

Trial court had authority to enter a post-decree order to appoint a special commisioner to transfer a marital home sold at a public auction for no less than $175,000. Boudwin v. Catania, 2008 Va. App. LEXIS 48 (Va. Ct. App. Jan. 29, 2008).

Appointment of special commissioner proper. —

Order appointing the husband’s lawyer as a special commissioner with the authority to execute documents on behalf of the wife regarding the sale of the parties’ home was proper because the trial court had authority under § 8.01-110 to make the appointment and did not abuse its discretion in doing so; the lawyer provided the necessary accounting and did not charge a fee. Tromza v. Vossburg, 2013 Va. App. LEXIS 125 (Va. Ct. App. Apr. 23, 2013).

This section authorizes partition in the divorce proceeding rather than requiring a separate action; it does not however change the requirements for obtaining partition. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318, 5 Va. Law Rep. 88, 1988 Va. App. LEXIS 75 (1988).

Trial court has only the authority to partition jointly owned property, and this may be done only in a manner that will insure that each owner receives the amount of money or property to which his interest in the property entitles him. Gaynor v. Hird, No. 1393-86-4 (Ct. of Appeals Oct. 4, 1988).

No authority over separate property. —

Under familiar principles of equitable distribution, trial courts have no authority to transfer or divide separate property without the agreement of the parties. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Transfer of separate property. —

The statute did not apply to allow the court to order the wife to deed her purported interest in property back to the husband where the property was determined to be his separate property, but it was titled in both of their names, as subsection C states that the court has no authority to order the transfer of separate property; however, the court could make such an order through its equity power. Moses v. Moses, 1998 Va. App. LEXIS 132 (Va. Ct. App. Mar. 3, 1998).

Transferor not required to await payments at future date. —

This section, which authorizes the transfer of ownership for disposal of jointly owned property, does not empower the trial court to require the transferor to await payments at some future date, and the words “and direct the allocation of the proceeds” do not grant such power. Stroop v. Stroop, 10 Va. App. 611, 394 S.E.2d 861, 7 Va. Law Rep. 93, 1990 Va. App. LEXIS 131 (1990).

Courts not empowered to impress trust against property transferred. —

There is no clear language in this section which empowers divorce courts either to impress a trust against the property being transferred or to delay payment to the transferor of the monies due for the interest one spouse is required to convey. Stroop v. Stroop, 10 Va. App. 611, 394 S.E.2d 861, 7 Va. Law Rep. 93, 1990 Va. App. LEXIS 131 (1990).

Allotment and division of marital assets absent valuation thereof and with no monetary award constituted an impermissible transfer or conveyance of the jointly owned marital property. Eschle v. Eschle, No. 1531-85 (Ct. of Appeals May 1, 1987).

The trial court’s subsequent consideration of the commissioner’s report, and any exception which might be filed to it, satisfy the mandate of subdivision E 5 of this section. Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866, 7 Va. Law Rep. 583, 1990 Va. App. LEXIS 176 (1990).

Court’s adoption of commissioner’s recommendation that husband convey title to the marital home to the wife was error where there was no agreement between the parties concerning the transfer of title to the real estate and absent such agreement the court was restricted to partitioning the real estate titled in both parties’ names, if so requested by the parties. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

A litigant does not have a right to have fault evidence in divorce action heard twice, once before the commissioner and once ore tenus before the court; motions for an ore tenus hearing can be addressed to the court’s sound discretion in cases where the nature of the issue might merit it. Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866, 7 Va. Law Rep. 583, 1990 Va. App. LEXIS 176 (1990).

Partition and monetary awards compared. —

The authority to partition jointly owned property included in this section serves a different purpose than the authority to grant a monetary award included in the same section. The monetary award authorization was included to accomplish an equitable apportionment of the marital property; the partition authorization was included to avoid numerous suits. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

The method of accomplishing partition in a divorce proceeding differs from the method of arriving at a monetary award. The amount of a monetary award is determined after considering 11 specific factors in subsection E, and is based on the equities and the rights and interests of each party in the marital property. On the other hand, partition, an entirely statutory procedure, is governed by § 8.01-81 et seq. since no directions for its implementation are contained in this section. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

No jurisdiction provided by section in partition suit. —

This section provides for equitable distribution jurisdiction upon decreeing the dissolution of a marriage and upon decreeing a divorce from the bond of matrimony. No such jurisdiction is provided by the section in a partition suit. Thurman v. Thurman, No. 0003-85 (Ct. of Appeals Aug. 29, 1985).

Partition must conform to § 8.01-81 et seq. —

Partition as now permitted in the equitable distribution statute is no different from that permitted prior to the adoption of this section, except that it may now be done in the divorce case rather than as a separate proceeding. However, when it is done, it must conform to the mandate of § 8.01-81 et seq. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Where the trial court was empowered to order partition the court had no right to defer such action but must conduct the procedure in the ordinary course of managing its docket. This section does not contain provisions directing how partition shall be conducted; therefore the procedures for distribution of the property and/or the proceeds of its sale, as disclosed by the partition statutes, and court decisions interpreting those statutes, must be followed. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318, 5 Va. Law Rep. 88, 1988 Va. App. LEXIS 75 (1988).

Partition under subsection C of this section is governed by § 8.01-81 et seq. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Partition of real property in a divorce proceeding is governed by § 8.01-81 et seq. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Court may not order spouse to relinquish share without considering § 8.01-81 et seq. —

Trial court erred in ordering wife to relinquish to husband her share of the marital home in an attempt to roughly equalize the assets of the parties. This cannot be done under the guise of partition without considering all of the provisions of § 8.01-81 et seq. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

Trial court erred in requiring wife to pay the entire second mortgage, home equity line of credit, on the parties’ marital home because husband created debt by withdrawing $8,000 from the line of credit. Snyder v. Snyder, 1995 Va. App. LEXIS 523 (Va. Ct. App. June 20, 1995).

Value of assets must be determined. —

In the absence of a monetary award, any transfer of jointly owned property can only be accomplished under the partition provision of the statute, in which case the parties must be treated equally since the division is based solely upon legal title. When the evidence of value is in such conflict, neither an equitable monetary award nor a fair and equal partition can be made without a determination of the value of the assets. Eschle v. Eschle, No. 1531-85 (Ct. of Appeals May 1, 1987).

A marital asset whose value cannot be determined by the trial court when the parties have had opportunity to present evidence as to its value cannot be divided under the equitable distribution statute, § 20-107.3 .Harrison v. Harrison, 2007 Va. App. LEXIS 323 (Va. Ct. App. Aug. 28, 2007).

Failure to divide property. —

Where the trial court failed to divide $65,000 in deferred compensation benefits, where the marital share of the same was 100 percent, based on the court’s duty to classify and divide all marital property under § 20-107.3 , this omission constituted reversible error. Miller v. Miller, 2003 Va. App. LEXIS 401 (Va. Ct. App. July 15, 2003).

Failure to make findings as to valuation. —

A divorce court may not be required, depending on the circumstances, to make a monetary award under this section, in which case jointly owned marital property may be partitioned. However, if partition is ordered, the principles thereof also require a valuation of the property and an equal division according to the coparceners’ legal interests, whether by allotment or sale. The failure of the court to make findings in regard to valuation, when there was such great disparity and conflict in the evidence as to value, fatally flawed either procedure. Eschle v. Eschle, No. 1531-85 (Ct. of Appeals May 1, 1987).

Reversible error found where the record disclosed neither the values of certain real property owned by the wife nor the values of certain real property owned by the husband at the time of the marriage and, therefore, the court’s determination of marital and separate interests in these otherwise separate assets, together with attendant values, was unsupported by evidence and in error. McPherson v. McPherson, 1999 Va. App. LEXIS 149 (Va. Ct. App. Mar. 2, 1999).

Properly supported by evidence. —

Trial court properly reviewed the evidence in determining the value of real property owned by a husband and wife, acquired during the course to their marriage, where both parties submitted worksheets valuing the property at $802,500, but the husband failed to submit supporting evidence of expenses he incurred in management of the property and similarly failed to submit evidence of commissions and settlements paid by him. Vacchiano v. Speier, 2004 Va. App. LEXIS 392 (Va. Ct. App. Aug. 17, 2004).

Equitable distribution giving each of the parties an equal share of the marital estate was upheld where the trial court considered the factors set out in § 20-107.3 , including the wife’s illness, the wife’s adulterous behavior and the parties’ reconciliation thereafter, the wife’s non-monetary contributions to the marriage, and other specific acts of alleged misconduct by both parties. Kincaid v. Kincaid, 2005 Va. App. LEXIS 249 (Va. Ct. App. June 28, 2005).

Since the trial court considered the factors enumerated and since the record reflected that the wife was the primary wage earner during the marriage and made significant monetary and non-monetary contributions to the marriage, the court affirmed an award of 85 percent of the marital equity in the marital residence to the wife. Golembiewski v. Anderson-Miller, 2005 Va. App. LEXIS 231 (Va. Ct. App. June 14, 2005).

Because the trial court considered all the applicable statutory factors, it did not err in valuing and dividing the marital property or in denying the wife’s request for maintenance. Doades v. Doades, 2005 Va. App. LEXIS 435 (Va. Ct. App. Nov. 1, 2005).

Trial court did not abuse its discretion in declining to apply the Brandenburg formula, which would have the harsh and inequitable result of awarding the husband a disproportionate amount of the marital residence’s increased equity despite the fact that a loan that the husband and wife were jointly obligated to pay was largely the source of the funds used to purchase the house, dictating that the wife be awarded a larger share of the equity in the marital residence than that called for under the Brandenburg formula. Keeling v. Keeling, 47 Va. App. 484, 624 S.E.2d 687, 2006 Va. App. LEXIS 30 (2006).

There was no basis for a husband’s claim that the trial court abused its discretion with regard to the equitable distribution of the marital residence pursuant to § 20-107.3 , awarding him fifty-five percent of the equity in the residence. He paid most of the mortgage payments, taxes, and insurance costs for the residence. Roper v. Roper, 2007 Va. App. LEXIS 482 (Va. Ct. App. Dec. 27, 2007).

Although the husband believed that the husband should have been awarded a greater percentage of the marital property, there was no error where the trial court considered all of the requisite factors in § 20-107.3 , prior to announcing its ruling, and the husband did receive a greater share of the marital property, between 52 and 55% of each item. Fadness v. Fadness, 52 Va. App. 833, 667 S.E.2d 857, 2008 Va. App. LEXIS 496 (2008).

Partition and sale of marital home. —

Where there was no offer of voluntary conveyance made by either party in this case, the trial court was correct in ordering the partition and sale of the marital home. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

It was within trial court’s discretionary authority to order sale of marital residence as a reasonable means to divide parties’ equity in the property. Stacey v. Stacey, 1999 Va. App. LEXIS 519 (Va. Ct. App. Sept. 7, 1999).

Use of the Brandenburg formula to determine the parties’ respective shares of the equity of their marital home was not an abuse of discretion, under § 20-107.3 A 3, as the parties had roughly equal incomes when they got a loan on the house, and they made a 20 percent down payment. Turonis v. Turonis, 2003 Va. App. LEXIS 130 (Va. Ct. App. Mar. 11, 2003).

Trial court properly ordered the sale of the parties marital home in a divorce action, because the trial court had wide discretion either to order the sale of marital property or to permit one of the parties to buy out the other’s share, and the trial court acted within its fact-finding discretion in concluding the wife did not possess the ability to purchase the home in a timely manner. Hosier v. Hosier, 2007 Va. App. LEXIS 62 (Va. Ct. App. Feb. 20, 2007).

Trial court did not abuse its discretion in ordering the parties to divide the necessary repairs to sell the marital home and in ordering the sale of the home. Laing v. Laing, 2012 Va. App. LEXIS 165 (Va. Ct. App. May 15, 2012).

Sale price of marital home. —

Trial court’s ruling that the former husband should pay to the former wife one-half of the difference between the firm offer they received from a man to buy the house and the actual amount they received after another party bought the house, and one-half of the realtor’s commission for selling the house, was supported by the evidence where the husband refused to make the sale to man who had made the firm offer, and, as a result, they ended up having to accept a lower offer obtained through the services of a realtor. Burnette v. Burnete, 2005 Va. App. LEXIS 54 (Va. Ct. App. Feb. 8, 2005).

Marital home properly awarded to wife. —

Trial court did not abuse its discretion in awarding wife the marital home and ordering her to pay husband 35 percent of the equity after the husband defaulted on his agreement to purchase the home at an auction; the net effect of the trial court’s decision improved the husband’s financial position from what it would have been had he complied with the contractual duties he had assumed in the auction, and the decision did not prejudice the husband’s rights under the equitable distribution statute. Smith v. Smith, 43 Va. App. 279, 597 S.E.2d 250, 2004 Va. App. LEXIS 270 (2004).

Since, in considering the award of the marital residence to wife, the trial judge found that wife had made the greatest and most substantial contribution, both monetary and non-monetary, to the well-being of the family, that wife’s efforts had led to the reestablishment of the residence following the fire, and that husband’s moving out of the family home had greatly contributed to the dissolution of the marriage, and the court considered the liquid and nonliquid character of the property, the court properly awarded the residence to the wife. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

Trial court did not abuse its discretion in making an equitable distribution because the trial court considered all the factors in § 20-107.3 in awarding the marital residence to one spouse rather than ordering it to be sold. Sheffield v. Sheffield, 2012 Va. App. LEXIS 19 (Va. Ct. App. Jan. 24, 2012).

Jointly-owned condominium. —

Because property consisting of a condominium was jointly owned, the trial court had authority, based upon the factors enumerated in subsection E, to divide or transfer the property. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Trial court properly classified a condominium as transmuted property where: (1) prior to the marriage, the husband owned house # 1; (2) the proceeds from the sale of house # 1 and money from the husband’s separate savings account were used to partly purchase a marital residence (house # 2); (3) a condominium was purchased using only proceeds from the sale of house # 2; (4) the wife contributed her separate funds for the renovation of house # 2; and (5) the proceeds from the sale of house # 2 were a combination of funds contributed by both parties; the fact that husband could retrace his separate contribution did not diminish the trial court’s authority to divide the equity in the condominium according to the proportionate share of each party’s contribution to its purchase. Harris v. Harris, 2006 Va. App. LEXIS 67 (Va. Ct. App. Feb. 21, 2006).

Marital property with negative equity. —

Where trial court found that marital property located in Florida had a negative equity, i.e., the outstanding mortgage attached to the property exceeded its estimated market value, subsection C expressly authorized the trial court to “apportion and order the payment of the debts of the parties.” Therefore, there was no error in the trial court’s calculation of the value of this piece of property based upon its outstanding debt. Moore v. Moore, 1997 Va. App. LEXIS 576 (Va. Ct. App. Sept. 2, 1997).

Sale of parties’ only significant asset to eliminate joint debts. —

Trial court did not abuse its discretion in ordering the sale of the parties’ only significant asset to eliminate their joint debts. Under subsection C, the trial court was authorized to order the parties to sell the jointly owned marital residence in order to reduce their marital debt. While wife sought to remain in the marital residence for the next eight years, she admitted that the home was in danger of foreclosure at least one time, that she earned $75 a week but that she worked sporadically and only approximately twenty hours a month, that she did not want to work full time while her children were in school, and that her oldest child was fifteen and was the first one home from school. Latuche v. Latuche, 1997 Va. App. LEXIS 554 (Va. Ct. App. Aug. 26, 1997).

Trial court did not err in requiring sale of marital residence, where this was a means by which parties could use a joint asset to pay unsecured joint debts. Alberger v. Alberger, 1999 Va. App. LEXIS 351 (Va. Ct. App. June 15, 1999).

Using proceeds from sale of marital home to pay debt. —

Where the testimony of appellant wife and appellee husband indicated that the husband borrowed $50,000 from his employer during the marriage, with the wife’s consent and used most of the money to buy the marital home and used the rest to pay marital debts, the trial court did not abuse its discretion under subsections C and E of § 20-107.3 , in determining that the loan was marital debt and in ordering that it be repaid from the proceeds of the sale of the marital home. Savage v. Savage, 2002 Va. App. LEXIS 733 (Va. Ct. App. Dec. 10, 2002).

Marital home decreased in value. —

Where the husband’s “improvements” to the marital home, as well as his neglect of it when he became its sole occupant, decreased its value, it was proper, under subdivision E 2 of § 20-107.3 , to find that the husband made a negative contribution to the marital estate and to enter an equitable distribution award that granted the wife 95 percent of the marital share of the home’s equity. Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299, 2002 Va. App. LEXIS 642 (2002).

When a husband made negative contributions to the marital estate by his shoddy “improvements” to and neglect of the marital home, there were no time limits, under subdivision E 2 of § 20-107.3 , providing when these negative contributions had to occur in order to be taken into account in making an equitable distribution award. Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299, 2002 Va. App. LEXIS 642 (2002).

Trial court’s decision in awarding husband all of the real estate owned jointly by the parties in one county and ordering him to pay wife for her share within 60 days of entry of the final decree, or, failing to do that, pay nine percent interest on the award from the date of entry of the final decree, was not an abuse of discretion, despite fact that the trial court knew husband was in bankruptcy, had no liquid assets to pay the award, and had no borrowing ability, nor did the trial court err in failing to consider the tax consequences of a sale of real property, about which no evidence was presented. Boyd v. Boyd, 2001 Va. App. LEXIS 520 (Va. Ct. App. Sept. 25, 2001).

The trial court’s decision to make a relatively equal distribution of the gifted property was consistent with this section, and did not constitute an abuse of discretion. Theismann v. Theismann, 22 Va. App. 557, 471 S.E.2d 809, 1996 Va. App. LEXIS 443 (1996).

Purposes unrelated to marriage. —

In order to alter the evaluation for an equitable distribution award under subdivision E 5 of § 20-107.3 , there must be a showing of use of the marital property for the benefit of one spouse and for purposes unrelated to the marriage, in anticipation of divorce or separation and at a time when the marriage is in jeopardy; equitable distribution was affirmed where the wife caused unnecessary delays in agreeing to sell the marital business, requiring it to incur additional debt. Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912, 2002 Va. App. LEXIS 682 (2002).

Partition of jointly owned property where no agreement as to value. —

Trial court did not err in ordering the sale of jointly owned property when the parties were unable to agree on the value of the properties for purposes of an allotment. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Husband did not need to pay where wife retained ownership of property. —

Trial court may not require husband to pay sum equal to one-half value of marital property given to wife when she retained ownership of items during marriage since legislature intended to provide that all marital property be considered in making monetary award but it did not intend that spouse receive award which included percentage of value of property he or she separately owned. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Trial court should not have excluded accrued interest from its consideration of the parties’ marital property. Gaynor v. Hird, No. 1393-86-4 (Ct. of Appeals Oct. 4, 1988).

Improper division of post-separation assets not found. —

Trial court did not abuse its discretion in awarding husband majority of post-separation assets, absent evidence in the record that it believed husband was individually responsible for generating the funds obtained from the sale of marital property. Matthews v. Matthews, 26 Va. App. 638, 496 S.E.2d 126, 1998 Va. App. LEXIS 118 (1998).

Post-separation mortgage payments. —

Court properly refused to award the husband a credit for his post-separation mortgage payments on the marital residence property; § 20-107.3 did not mandate that the trial court had to award a corresponding dollar-for-dollar credit for such contributions. Baxani v. Baxani, 2003 Va. App. LEXIS 380 (Va. Ct. App. July 1, 2003).

Trial court did not err when it considered the marital residence as marital property without awarding the wife a credit for the amount of funds she paid on the mortgage after the parties separated because, although the separate contribution of one party to the acquisition, care, and maintenance of marital property was a factor that the trial court had to consider when making its award of equitable distribution, this statute did not mandate that the trial court award a corresponding dollar-for-dollar credit for such contributions; and the trial court considered the husband’s argument that the payments were made from marital funds and that the wife had exclusive use of the residence after separation. Ross v. Ross, 2017 Va. App. LEXIS 331 (Va. Ct. App. Dec. 19, 2017).

Division of business proper. —

The court properly awarded the husband only one quarter of the value of a restaurant/bar owned by the parties where: (1) the wife was solely responsible for the restaurant/bar from the time of the parties’ separation; (2) although she employed two managers to supervise the restaurant/bar at night, wife was solely responsible for the financial, tax, and licensing aspects of the business; (3) during this period, the husband opened a competing restaurant/bar across the street and began preparations to open a third restaurant/bar on the same street; and (4) as a result of these competing businesses, the gross sales of the restaurant/bar dropped by almost 50 percent. Stewart v. Despard, No. 1570-97-4 (Ct. of Appeals March 31, 1998).

Trial court judgment in a divorce action awarding a wife 25 percent of the husband’s share in a group home enterprise was upheld on appeal, because the enterprise was created by the husband and wife during the marriage, the wife contributed significant amounts of time and effort in establishing the group home, including using the medical license she obtained for the benefit of the home, and the wife’s income from her work as a physician was the family’s sole means of support in the early days of the husband’s development of the enterprise. The valuation of the business was upheld, because the husband failed to offer any independent evidence as to the fact and amount of alleged loans against the enterprise and the trial court had the discretion to expressly accept the testimony of the wife’s expert with regard to the value of the husband’s share. Washington v. Washington, 2005 Va. App. LEXIS 177 (Va. Ct. App. May 3, 2005).

Presumption sailboat was marital property. —

Husband’s contention that the trial court erred in classifying a sailboat as marital property was rejected because he had not carried his burden of producing evidence to show the sailboat was his separate property and had not been purchased using marital funds. Rosedale v. Rosedale, 2008 Va. App. LEXIS 341 (Va. Ct. App. July 22, 2008).

E.Monetary Awards.

Purpose of the monetary award is to provide a mechanism by which the courts may equitably distribute the material fruits of the marriage. Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139, 4 Va. Law Rep. 716, 1987 Va. App. LEXIS 226 (1987).

The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably. The mechanism to accomplish that goal is the monetary award. To allow one spouse to squander marital property is to make an equitable award impossible. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

The underlying purpose of subsection F is to prevent a trial court from considering spousal support before determining the amount of the monetary award. Simultaneous consideration is permitted. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Monetary award must be based upon the equities of the parties and the chancellor is authorized to weigh the equities and make an appropriate award. The judgment of the trial court is presumed to be correct and the party who asserts the contrary is required to overcome the presumption by record proof. Broom v. Broom, 15 Va. App. 497, 425 S.E.2d 90, 9 Va. Law Rep. 671, 1992 Va. App. LEXIS 313 (1992).

Before a monetary award is made, the trial court must examine the equities, rights, and interests of each party in the marital property and determine whether a monetary award is appropriate. McClanahan v. McClanahan, 19 Va. App. 399, 451 S.E.2d 691, 1994 Va. App. LEXIS 720 (1994).

Authority to set date for payment of monetary award. —

In fashioning an equitable distribution award, the trial court had the authority under subsection K to order a husband to pay all monetary sums within 30 days. Tucker v. Wilmoth-Tucker, 2010 Va. App. LEXIS 199 (Va. Ct. App. May 18, 2010).

Lump sum payment. —

Subsection D does not mandate that a trial court use specific formulas to calculate monetary awards in specific factual situations. Instead, the determination of the amount of a monetary award in a given case is within the discretion of the trial court subject to its consideration of the factors of subsection E. Robertson v. Robertson, 1997 Va. App. LEXIS 626 (Va. Ct. App. Sept. 16, 1997).

Equitable distribution statute providing for a monetary award applies to all actions filed after its effective date, regardless of when the cause of action arose, and it applies to property acquired prior to the effective date of the act, unless the parties have agreed otherwise. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Party who is granted a monetary award in an equitable distribution proceeding is in the same position as any other judgment creditor and has the same enforcement remedies available. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Equitable reason must be given if award. —

Trial court erred in giving monetary award to wife who retained ownership of joint interest property since record must affirmatively show equitable reason to base monetary award and no such reason appeared in record. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Expenditure of marital funds for criminal defense was proper. —

There was no abuse of discretion in the trial court’s finding that husband’s expenditure of marital funds for his criminal defense was for a proper purpose. If he had prevailed, it clearly would have been of benefit to his family as his incarceration would have limited his ability to support the family. L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580, 1995 Va. App. LEXIS 153 (1995), cert. denied, 517 U.S. 1124, 116 S. Ct. 1360, 134 L. Ed. 2d 527, 1996 U.S. LEXIS 2241 (1996).

The divorce court is permitted, but not required, to grant a monetary award in favor of one spouse which equitably distributes the wealth acquired by the parties during the marriage based on the recognition of the contributions, monetary and nonmonetary, of both parties. Rexrode v. Rexrode, 1 Va. App. 385, 339 S.E.2d 544, 1986 Va. App. LEXIS 212 (1986).

Assignment or allocation of assets not used to adjust wealth between parties. —

The statutory scheme for distributing marital property under Virginia’s “equitable distribution” statute does not authorize the actual division of the marital assets by assigning or allocating them between the parties. Rather than allowing for the distribution of marital property by transfer, assignment or allotment, this section provides for a monetary award as a method for adjustment of the marital wealth between the parties based upon consideration of their respective interests and equities in the marital property. Eschle v. Eschle, No. 1531-85 (Ct. of Appeals May 1, 1987).

The parties’ bank account should have been included in full to the extent that it contained funds accumulated during the marriage, and while consideration of intangible factors which diminished the account might be proper when the court is determining the amount of a monetary award, neither the commissioner nor the court had the authority to “adjust” what was marital property. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

Both parties deemed to have rights and interests in marital property. —

For purposes of determining a monetary award, both parties are deemed to have certain rights and interests in the marital property. Although these rights and interests do not attach to the legal title of such property, they are to be used as a consideration in determining a monetary award. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

There is no presumption that monetary award must be premised upon equal division of marital property. Instead, the applicable statute requires the trial court to determine the amount of the award and the method of its payment after considering the 11 specific factors. Once it has been determined that a monetary award is appropriate, the trial judge must determine the amount of the monetary award after considering the factors mandated by subsection E. Therefore, proof that the monetary award does not reflect an equal division of marital property is not alone sufficient to reverse the award, provided the trial judge considered all the factors enumerated in subsection E in determining the amount. Lambert v. Lambert, 6 Va. App. 94, 367 S.E.2d 184, 4 Va. Law Rep. 2237, 1988 Va. App. LEXIS 26 (1988).

Subsection B of this section makes it plain that although the parties’s rights and interests in marital property may be used by the court as a consideration in determining a monetary award, those rights and interests shall not attach to the legal title of such property. Lowe v. Lowe, 233 Va. 431 , 357 S.E.2d 31, 3 Va. Law Rep. 2686, 1987 Va. LEXIS 211 (1987).

The law does not state that each party is necessarily entitled to his or her monetary contribution to the acquisition of marital property. Although in certain cases such a contribution may be given great weight, it is still only one factor to be considered by the chancellor, who in the exercise of his sound discretion makes an award based upon all of the factors set forth in subsection E. Linkous v. Linkous, No. 0938-85 (Ct. of Appeals Apr. 7, 1986).

Necessity of consideration of all factors. —

When the trial court orders a monetary award it must be based on all of the factors enumerated in subsection E of this section. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

Trial court did not abuse its discretion in fashioning an equitable distribution award giving a wife a lump sum award in addition to 50 percent of the equity in the marital residence where the trial court reviewed all of the subsection E of § 20-107.3 factors and applied them to the facts, and the evidence supported the trial court’s findings. Olsen v. Mackay, 2010 Va. App. LEXIS 155 (Va. Ct. App. Apr. 27, 2010).

Where the evidence showed that marital funds in excess of $16,000 and marital effort were put into the husband’s separate property and the husband thereby reduced his separate debt which increased his equity, the trial judge did not abuse his discretion in making a $5,000 equitable distribution award, which was less than one-third of the marital funds alone put into the husband’s separate property during the marriage. Anderson v. Anderson, 1996 Va. App. LEXIS 196 (Va. Ct. App. Mar. 12, 1996).

Monetary award is single entity based on subsection E factors. —

This section, both as it read prior and subsequent to the 1985 amendment, contemplates only one monetary award, the amount of which is determined by the careful consideration of the 11 criteria enumerated in subsection E. Although subsection G as it read prior to its amendment required the trial court to identify that portion of the award based upon retirement benefits, that provision cannot be construed as authorizing multiple monetary awards. Furthermore, the statute now clearly indicates that the monetary award is not composed of discrete parts each based upon one of the enumerated factors, but is rather a single entity whose total amount is determined by examination of the subsection E factors. Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139, 4 Va. Law Rep. 716, 1987 Va. App. LEXIS 226 (1987).

Monetary award is equivalent of money judgment. —

To the extent a decree awards a monetary sum pursuant to subsection D, it is the equivalent of a money judgment and must be satisfied as such. The trial court may provide, however, that a monetary award be payable as a lump sum or in periodic fixed amounts. In either instance, the trial court may exercise its discretion in determining when the lump sum award or the periodic fixed amounts are due and payable. If no due date is specified in the decree, or if the award (or any portion thereof) is not satisfied by the payment date set forth in the decree, that award (or portion thereof) becomes the equivalent of a money judgment. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

Satisfaction of monetary award granted under this section is governed by § 8.01-426 . Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

Payment of nonmarital debts allowed. —

The language of this section and its command to consider the factors listed does not restrict the judge’s discretion to order payment of the parties’ nonmarital debts to each other. Hayes v. Hayes, 21 Va. App. 515, 465 S.E.2d 590, 1996 Va. App. LEXIS 11 (1996).

Monetary award determined without regard to support. —

Under this section, the amount of the monetary award must be determined without regard to support considerations. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

Spousal support award and monetary award compared. —

A distinct difference exists between a spousal support award and a monetary award made pursuant to this section. Spousal support involves a legal duty flowing from one spouse to the other by virtue of the marital relationship. By contrast, a monetary award does not flow from any legal duty, but involves an adjustment of the equities, rights and interests of the parties in marital property. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

It was error to offset a husband’s equitable distribution monetary award against the end of a wife’s spousal support award because this effectively conditioned the monetary award on future circumstances assuming the wife would be due spousal support for the full term ordered, contrary to the equitable distribution statute’s purpose, which was different from that involved in awarding support. Dixon v. Dixon, 71 Va. App. 709, 840 S.E.2d 1, 2020 Va. App. LEXIS 85 (2020).

Monetary award considered in determining child support. —

The amount of any monetary award under this section is one of the factors the court must consider in determining child support, and in view of the remand of the monetary award, the trial court must also reconsider its child support award. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

Party has option to convey property to satisfy award. —

Subsection D gives the party against whom the award is made the option of conveying property (or an interest in property) to satisfy the award with the court’s approval. This section does not give that option to the chancellor. Accordingly, the trial court erred in ordering that the monetary award to wife would constitute a lien on husband’s interest in marital residence. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

The obvious reason for subsection D of this section is to enable the parties to make payment of a monetary award by adjustment of their property. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

Trial court did not err in directing a wife to transfer her separately titled limited partnership interest to the husband to satisfy a monetary award because subsection C of § 20-107.3 applied only to the transfer or division of property without any reference to the satisfaction of a monetary award, subsection D of § 20-107.3 controlled a transfer or division of property to satisfy a monetary award, and the trial court correctly noted the distinction. Linton v. Linton, 63 Va. App. 495, 759 S.E.2d 14, 2014 Va. App. LEXIS 238 (2014).

No authority to impose unrelated conditions on right to receive equitable distribution award. —

Trial court erred in ordering a wife’s equitable distribution award to be held in escrow until the wife complied with a Hungarian court’s visitation order because subsection E of § 20-107.3 did not grant a trial court the authority to impose unrelated conditions on one party’s right to receive his or her equitable distribution award; although the language of subsection E of § 20-107.3 permits a trial court to determine the method of payment of an equitable distribution award, it does not permit a trial court to set conditions of payment that are unrelated to the award itself, and without express statutory authorization to condition payment of an equitable distribution award upon compliance with child custody and visitation orders, a trial court is without authority to impose such a condition. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Court may not condition monetary award on conveyance of real property. —

The trial judge erred in conditioning the wife’s monetary award on her conveying her interest in the jointly owned home to the husband. He had authority to make a monetary award as well as authority to partition the jointly owned property, but he had no authority to condition one on the other. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

The trial court erred in ordering the wife to convey her interest in the jointly owned marital home and office building to the husband upon his payment of the monetary award. The trial court did not have authority to order this transfer as part of a monetary award. Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

Transfer is within court’s discretion. —

The granting or the withholding of court approval of the transfer must reflect the exercise of sound judicial discretion in the light of all of the circumstances presented. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

Approval of transfer held abuse of discretion. —

Approval by chancellor of transfer of property in payment of award was an abuse of discretion and would be set aside where wife was required to assume the burden of selling the property, which husband had been unable to do, and she would incur payment of a sales commission, payment of pro-rated taxes and other incidental expenses in connection with the sale reducing her monetary award to the extent of the expenses associated with the sale. Payne v. Payne, 5 Va. App. 359, 363 S.E.2d 428, 4 Va. Law Rep. 1441, 1987 Va. App. LEXIS 248 (1987).

Approval of transfer not an abuse of discretion. —

Trial court did not err in granting a husband’s motion under subsection D of § 20-107.3 to transfer a portion of his marital share of his retirement accounts to satisfy the first installment of a monetary award entered in favor of a wife because the trial court interpreted its own final order of equitable distribution of the parties’ marital assets, particularly the provision in that order stating that subject to approval of the trial court, the husband could satisfy installments of the monetary award through the conveyance of property; the trial court did not abuse its discretion in interpreting its own order approving the husband’s transfer of property to the wife as satisfying the installment payment of its monetary award. Johnson v. Johnson, 56 Va. App. 511, 694 S.E.2d 797, 2010 Va. App. LEXIS 269 (2010).

Where marital property is encumbered with indebtedness which equals or exceeds its value, then for purposes of a monetary award it is essentially of no value. Without value, there is no basis for a monetary award. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

Trial court exceeded its authority in ordering mandatory payment of monetary award under subsection D within 120 days. While it was authorized to fix a date upon which the award was due and payable, the trial court lacked authority to order mandatory payment subject to enforcement by its contempt powers. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

No abuse of discretion in not allowing husband’s method to satisfy wife’s award. —

Trial court, by not approving method by where husband could satisfy wife’s award based upon the pension by a lump sum payment of percentage value, did not abuse its discretion. Wagner v. Wagner, 16 Va. App. 529, 431 S.E.2d 77, 9 Va. Law Rep. 1513, 1993 Va. App. LEXIS 180 (1993).

Segregation of certain real estate from other marital property held error. —

Trial court erred when it segregated farm from other marital property and made a monetary award based solely upon the equities of each party in the retirement benefits. Such a segregation of the property was fatal to the award for several reasons: (1) The statutory factors of subsection E must be applied to all of the marital property that is considered for equitable distribution; (2) the court must consider, among other things, how and when specific items of marital property were acquired and the parties’ contributions, both monetary and nonmonetary, to the acquisition, care and maintenance of the specific items; and (3) the effect of segregating the real estate was necessarily to make an equal division of it apparently without considering the equities of the parties in the real estate. The farm had been in wife’s family since 1793. She acquired title in 1960 and held it as sole owner until the mid-seventies when husband made a monetary contribution to construct a house on the farm — which contribution was small in comparison to the farm’s value. Robinette v. Robinette, 4 Va. App. 123, 354 S.E.2d 808, 3 Va. Law Rep. 2151, 1987 Va. App. LEXIS 170 (1987).

Award for contribution to marital home. —

The chancellor’s order granting a monetary award to the husband for his monetary contribution to the construction of the marital domicile was proper. Smoot v. Smoot, 233 Va. 435 , 357 S.E.2d 728, 3 Va. Law Rep. 2690, 1987 Va. LEXIS 212 (1987).

Award for contribution to gift not authorized. —

Subsection D of this section does not authorize the trial court to revoke irrevocable gift by entry of a monetary award based upon husband’s contribution to that gift. McClanahan v. McClanahan, 19 Va. App. 399, 451 S.E.2d 691, 1994 Va. App. LEXIS 720 (1994).

Nonmonetary contributions of wife were of insufficient value. —

Trial court did not abuse its discretion in determining that whatever nonmonetary contributions the wife may have made to the acquisition of assets in the husband’s law practice, they were of insufficient value upon which to base any portion of the monetary award. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

Award which provided marital home to wife and children and relieved husband of support duty held improper. —

Where the amount and method of payment of monetary award to wife was determined and designed to provide the marital home to her and the children and to effectively relieve disabled husband of his obligation to pay child support, such award could not be permitted to stand. Williams v. Williams, 4 Va. App. 19, 354 S.E.2d 64, 3 Va. Law Rep. 2041, 1987 Va. App. LEXIS 161 (1987).

Award barred by release of future claims prior to adoption of this section. —

The release of future claims contained in the parties’ separation agreement entered into before the adoption of this section barred a monetary award in a divorce decree entered after the adoption of this section. Bragan v. Bragan, 4 Va. App. 516, 358 S.E.2d 757, 4 Va. Law Rep. 207, 1987 Va. App. LEXIS 207 (1987).

Assessment of husband’s interest held correct. —

Where wife argued monetary award was inadequate since judge assessed husband’s interest in company as negative value because of husband’s contract, court was not at liberty to rewrite contract simply because contract appeared to reach unfair result, and therefore, trial court’s judgment was not set aside. Kaufman v. Kaufman, 7 Va. App. 488, 375 S.E.2d 374, 5 Va. Law Rep. 1229, 1988 Va. App. LEXIS 142 (1988).

Monetary award should not have been reduced by mortgage payments. —

Where trial court ordered wife to convey her interest in marital home to husband upon his paying to her an amount equal to one-half of the equity in the property less an amount equal to one-half of the mortgage payment made by the husband from the time the parties separated until the final decree of divorce was entered, no theory supported claim that the amount of the monetary award to the wife should have been reduced by the amount of the mortgage payments; the trial court erred, therefore, in requiring the wife to reimburse the husband for these payments. Nuckols v. Nuckols, No. 0227-90-2 (Ct. of Appeals April 2, 1991).

Modification to allow periodic payments upheld. —

Trial court did not err in modifying the final decree to allow husband to pay the equitable distribution award in four periodic payments rather than in one lump sum, as it had originally ordered in the final decree of divorce. Subsection D of this section permits the court to make any monetary award under this section “payable either in a lump sum or over a period of time in fixed amounts.” No showing of a change in circumstances was required to justify the modification. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

Recovery of interest. —

Version of § 20-107.3 in effect at time divorce matter was commenced did not expressly authorize or prohibit application of § 8.01-382 , requiring interest on judgments, to monetary awards, and therefore husband was precluded from recovering interest on equitable distribution award. Hird v. Gaynor, 2000 Va. App. LEXIS 205 (Va. Ct. App. Mar. 21, 2000).

Trial court did not err in not awarding the wife interest on the monetary award representing the wife’s part of the marital estate, because an award of interest was not required when the trial court “ordered otherwise,” pursuant to § 8.01-382 . Shackelford v. Shackelford, 39 Va. App. 201, 571 S.E.2d 917, 2002 Va. App. LEXIS 678 (2002).

Interest award to compensate for husband's inappropriate transfer proper. —

In seeking to achieve an equitable distribution, statutory factors allowed the trial court to account for husband’s inappropriate transfer of funds from the marital account by increasing the award to wife to allow for interest that would have been earned but for husband’s effective conversion. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

F.Factors for Consideration.

1.Generally.

Subsection E presupposes that monetary award is appropriate. —

Neither subsection D nor E require the trial court to consider the eleven factors of subsection E in determining whether to grant a monetary award. However, subsection E explicitly states that the 11 enumerated factors are to be considered in determining the amount of the award and the method of payment. Subsection E, thus, presupposes that a trial court has already determined that a monetary award is appropriate. Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139, 4 Va. Law Rep. 716, 1987 Va. App. LEXIS 226 (1987).

Subsection E factors applied only after asset classified and evaluated. —

Under the statutory scheme the factors bearing on the amount and method of payment of a monetary award as set out in subsection E are only to be applied after the assets of the parties are classified and evaluated under subsection A. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

Review of commissioner’s report. —

Where the commissioner in chancery recommended that a wife’s grounds for divorce be granted because the husband had not met the burden of proving a credit card forgery allegation, the trial court did not abuse its discretion in hearing the forgery evidence for purposes of equitable distribution because (1) under subsection E of § 20-107.3 , the trial court had the authority to examine evidence regarding the effect of the forgery allegations on the marital property and equitable distribution award, and (2) the commissioner’s scope of referral was limited to answering whether the grounds of divorce alleged in the pleadings were proven. Morrill v. Morrill, 45 Va. App. 709, 613 S.E.2d 821, 2005 Va. App. LEXIS 289 (2005).

Subdivision E 7 of this section provides that the debts of each spouse shall be considered as a factor when determining how to distribute jointly owned marital property or to fashion a monetary award. The purpose and nature of the debt, and for and by whom any funds were used, should be considered in deciding whether and how to credit or allot debt. Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618, 9 Va. Law Rep. 1320, 1993 Va. App. LEXIS 114 (1993).

Future accumulations, needs not to be considered. —

Subsection D of this section provides for the equitable distribution of the accumulated marital wealth between the marital parties; it does not contemplate consideration of the future ability of one spouse to accumulate what will be separate property or the future needs of the other spouse. Rein v. Rein, 1994 Va. App. LEXIS 699 (Va. Ct. App. Nov. 29, 1994).

Equitable distribution considered separately from spousal or child support. —

The clear legislative intent embodied in this section is to maintain an appropriate separation between considerations of child or spousal support and considerations of an equitable division of marital wealth; a trial court determines distribution of marital property without regard for the considerations of support and the factors in § 20-107.1 .Overbey v. Overbey, 2001 Va. App. LEXIS 178 (Va. Ct. App. Apr. 3, 2001).

Record failed to show that the trial court improperly considered child support in granting a wife the right of first refusal to purchase the husband’s share of the marital residence; the trial court stated that it granted the right of first refusal because the wife lived at the home, had primary custody of the children, and the children would benefit by staying in the only house they had ever known. Wiese v. Wiese, 46 Va. App. 399, 617 S.E.2d 427, 2005 Va. App. LEXIS 322 (2005).

Subdivision E 11 may not encompass spousal support payments as factor. —

Where former husband made spousal support payments pursuant to divorce decree which was subsequently reversed, amounts he paid for spousal support could not be considered by the chancellor as a factor under subsection E of this section in determining the amount of monetary award for former wife; within the statutory framework, it is the spousal support award that may be modified based upon the court’s determination of the monetary award, not vice versa; subdivision E 11 of this section may not be interpreted so broadly as to encompass spousal support payments as a factor in making an equitable monetary award. Reid v. Reid, 12 Va. App. 1218, 409 S.E.2d 155, 8 Va. Law Rep. 551, 1991 Va. App. LEXIS 222 (1991).

The trial court is required to consider all of the factors set forth in subsection E in fixing a monetary award. The court need not quantify or elaborate exactly what weight was given to each of the factors. The court’s findings must, however, be based upon credible evidence. Taylor v. Taylor, 5 Va. App. 436, 364 S.E.2d 244, 4 Va. Law Rep. 1758, 1988 Va. App. LEXIS 12 (1988).

All factors in subsection E must be considered by the court in determining the amount of a monetary award and the division of marital property. The statute grants to the trial court considerable latitude in how it exercises its discretion and in considering what weight, if any, to give each factor in arriving at a fair and equitable award. Hancock v. Hancock, No. 0962-89-3 (Ct. of Appeals Oct. 9, 1990).

A trial court, when considering these factors, is not required to quantify the weight given to each, nor is it required to weigh each factor equally, though its considerations must be supported by the evidence. Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432, 7 Va. Law Rep. 1564, 1991 Va. App. LEXIS 22 (1991).

This section requires the court to ground relief under the statute upon consideration of certain specific factors contained in subsection E of this section, but the court need not assign a weight to each or consider them equally; there is no presumption favoring an equal distribution between the parties. Rose v. Rose, 1994 Va. App. LEXIS 741 (Va. Ct. App. Dec. 20, 1994).

Trial court has broad discretion in consideration it gives each statutory factor, and court is not required to articulate the process it follows in considering the statutory factors. Bloxton v. Bloxton, 1999 Va. App. LEXIS 255 (Va. Ct. App. May 4, 1999).

The trial court may not reduce the value of the estate to the benefit of one party by adjusting the value of the marital estate, even if it relies on factors that could permit it to decree an unequal distribution. Burgess v. Burgess, 2000 Va. App. LEXIS 392 (Va. Ct. App. May 23, 2000).

In fashioning any equitable distribution award, the trial court must consider all the enumerated factors of subsection E in exercising its discretion, and it is reversible error for the trial court to fail to do so. Beck v. Beck, 2000 Va. App. LEXIS 658 (Va. Ct. App. Sept. 19, 2000).

Final decree of divorce stated that the trial court considered the factors in § 20-107.3 in making an equitable distribution of property and it was not required to emphasize the factor of the husband’s alleged adultery in making the distribution; accordingly, the wife did not show that the trial court abused its discretion in distributing the parties’ property. Shackelford v. Shackelford, 39 Va. App. 201, 571 S.E.2d 917, 2002 Va. App. LEXIS 678 (2002).

Trial court’s property distribution award under § 20-107.3 was reversed based on the court’s failure to recognize the wife’s contributions toward purchasing the marital home and due to its erroneous division of the marital debt without considering the husband’s negligence. But, the wife was not entitled to attorney’s fees or a portion of a pension bought with marital funds. Sherman v. Sherman, 2008 Va. App. LEXIS 108 (Va. Ct. App. Mar. 4, 2008).

Trial court did not err in making an equitable distribution because the trial court expressly considered the factors contained in § 20-107.3 in fashioning its equitable distribution award. The court’s findings and award were based on the requisite statutory factors and were supported by evidence. Sheffield v. Sheffield, 2012 Va. App. LEXIS 19 (Va. Ct. App. Jan. 24, 2012).

Trial court’s order was summarily affirmed because the trial court examined all of the factors in subsection E of § 20-107.3 , including a husband’s contributions, in determining an equitable distribution award, the husband’s opening brief did not contain the standard of review, principles of law, or citations to legal authorities or the record required by Va. Sup. Ct. R. 5A:20(e). Taylor v. Taylor, 2012 Va. App. LEXIS 362 (Va. Ct. App. Nov. 13, 2012).

Circuit court did not err in its equitable distribution award because the court recognized one spouse’s significant monetary contributions to the marital estate and the other spouse’s greater contributions to the well-being of the family. The court also found that one spouse was physically and verbally abusive to the other spouse and had substance abuse problems and that the one spouse’s treatment of the other spouse was the primary contributing factor in causing the dissolution of the marriage. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Trial court adequately explained how it considered and applied the equitable distribution factors set forth in this section, having noted that the husband made the majority of the positive monetary contributions but that they were negated by the installment of more than $35,000 in debt, the husband committed waste of marital property after separation, and the husband’s misconduct led to the dissolution of the marriage. Ozfidan v. Ozfidan, 2015 Va. App. LEXIS 148 (Va. Ct. App. May 5, 2015).

Evidence supported the trial court’s equitable distribution award because trial court’s letter opinion discussed, in detail, each of the factors in subsection E; the trial court noted that the distribution appeared advantageous to the wife, but it found that the bulk of the debt allocated to the husband came attached to valuable real property. Peake v. Peake, 2015 Va. App. LEXIS 281 (Va. Ct. App. Oct. 6, 2015).

Trial court did not abuse its discretion in making an equitable distribution, as the trial court stated the order was entered, in part, upon consideration of each of the factors set forth in this section, and evidence in the record showed that the trial court considered those factors in dividing the marital property. Rouse v. Rouse, 2017 Va. App. LEXIS 171 (Va. Ct. App. July 18, 2017).

But specific findings of fact not requisite. —

This section requires the court to consider the various factors enumerated in subsection E, but nowhere does it require specific or enumerated findings of fact. Dixon v. Dixon, No. 1080-90-4 (Ct. of Appeals July 23, 1991).

For each item of property at issue in an equitable distribution hearing, a trial court is not bound to make specific findings concerning each of the eleven factors set out in this section; while a trial court must take into consideration those factors presented in this section, trial courts have never been required to engage in automatic recitations of these factors for each item or group of items of property at issue. Barb v. Barb, No. 1177-91-4 (Ct. of Appeals Mar. 31, 1992).

Although the trial court did not state with particularity the degree of consideration it accorded to each of the statutory factors, the court indicated that it had considered all the factors, and the evidence supported that conclusion. The extensive record in this case showed the trial judge questioning witnesses and entreating counsel to deal with each requirement of this section. The trial court made a lump sum award and a division of pension rights, but the court failed to state on the record every item of property raised by the parties. The court added up each finding of value and then specifically inquired of counsel whether there were any other assets or liabilities that the court needed to consider. Husband presented his tax argument to the court and discussed the liabilities of the parties and those liabilities associated with each property. After the court totaled up all the respective values and allowed for the associated liabilities, it determined the appropriate amount of the lump sum award. Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d 666, 1994 Va. App. LEXIS 595 (1994).

Substantive consideration of factors should be incorporated into decision-making process. —

The appropriate consideration of the factors entails more than a mere recitation in the record or decree that all the statutory factors have been considered or reviewed; the enumerated factors are intended to guide the court’s exercise of discretion, and substantive consideration of these factors should be incorporated into the decision-making process. Alphin v. Alphin, 15 Va. App. 395, 424 S.E.2d 572, 9 Va. Law Rep. 624, 1992 Va. App. LEXIS 296 (1992).

Evidence of separate property may be considered. —

The trial court may properly consider evidence of wife’s separate property in light of the statutory factors set out in subdivision E 1 of this section. This provision allows trial courts to consider the monetary contributions of each party to the well-being of the family. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

2.Dissolution of marriage factors.

Impact of fault on award calculation. —

Equitable distribution is predicated upon the philosophy that marriage represents an economic partnership requiring that upon dissolution each partner should receive a fair portion of the property accumulated during the marriage. Therefore, circumstances that affect the partnership’s economic condition are factors that must be considered for purposes of the equitable distribution scheme. Circumstances that lead to the dissolution of the marriage but have no effect upon marital property, its value, or otherwise are not relevant to determining a monetary award, need not be considered. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833, 5 Va. Law Rep. 291, 1988 Va. App. LEXIS 92 (1988).

The rule established in Aster v. Gross , 7 Va. App. 1, 371 S.E.2d 833 (1988), that circumstances leading to the dissolution of the marriage but having no effect on the marital property or its value are not relevant to determining the monetary award, was meant to require proof of some relationship between the fault and the marital estate, to require objectivity to the trial court’s decision making on equitable distribution, and was focused on a couple’s monetary contributions. The purpose was to eliminate arbitrary monetary awards that punished a spouse for his or her fault without showing such a fault had an economic impact on the marriage. O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323, 1995 Va. App. LEXIS 517 (1995).

The ruling in Aster v. Gross , 7 Va. App. 1, 371 S.E.2d 833 (1988) did not establish that the negative impact of marital fault or other behavior could not be considered in light of the other factors, such as the couple’s nonmonetary contributions, under subsection E of this section. Just as marital fault could be shown to have an economic impact on a marriage, i.e., waste or dissipation of assets, it can also be shown to have detracted from the marital partnership in other ways. Thus, as in the instant case, the trial court found not only that appellant made no nonmonetary contributions to the well-being of the family, but that his long-term infidelity and abusive behavior over the course of the marriage actually had a negative impact on the marital partnership. O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323, 1995 Va. App. LEXIS 517 (1995).

Fault is not a “wild card” that may be employed to justify what otherwise would be an arbitrary or punitive award. When fault is relevant in arriving at an award, the trial judge is required to consider it objectively, and how, if at all, it quantitatively affected the marital estate or well being of the family. O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323, 1995 Va. App. LEXIS 517 (1995).

Although IRA account was opened by wife prior to marriage and $4,000 of account was wife’s separate property, trial court did not err in awarding husband fifty percent of account, where remaining balance of $17,935 consisted of funds retraceable as marital property since funds had been earned and contributed by wife during marriage. Mezzy v. Mezzy, 2000 Va. App. LEXIS 21 (Va. Ct. App. Jan. 18, 2000).

While the parties’ marriage did not remain harmonious, the record 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. Therefore, cruelty was not considered in the equitable distribution of assets. Delanoy v. Delanoy, 2014 Va. App. LEXIS 424 (Va. Ct. App. Dec. 30, 2014).

Reduction in award not to be used as punishment for spouse. —

A reduction in the award of an equitable share of the marital wealth is not to be used as a punishment for a spouse who may have committed marital fault which does not affect the marital wealth. Grunow v. Grunow, No. 1364-91-1 (Ct. of Appeals Sept. 8, 1992).

Award of attorney fees for defense of adultery allegations overturned. —

Where a husband’s monthly income was significantly higher than his wife’s and the wife’s pursuit of adultery grounds was not frivolous, it was an abuse of discretion to award the husband attorney’s fees for defending against adultery charges. Snyder v. Snyder, 1995 Va. App. LEXIS 523 (Va. Ct. App. June 20, 1995).

Circumstances contributing to dissolution of marriage may be considered. —

This section, by its plain language, does not limit the trial court to consider only the grounds upon which the divorce was granted. Circumstances and factors which may have contributed to the dissolution of a marriage, regardless of whether they constituted grounds for divorce, may be considered in weighing the equities between parties in determining the amount and method of making a monetary award. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

Property division, which favored appellee husband, was appropriate based on the facts set forth in subsection E of § 20-107.3 as the husband made the primary monetary contributions throughout the parties’ marriage and appellant wife played a pivotal role in the dissolution of the marriage. Ulka Ghulam v. Ghulam Ali Sidiqi, 2007 Va. App. LEXIS 452 (Va. Ct. App. Dec. 18, 2007).

Trial court could consider the circumstances of the dissolution of the marriage, such as the wife’s desertion of the marriage, the wife taking the husband’s business records when the wife left, the wife’s contribution to the marriage, and the wife’s contribution to the husband’s business, in determining the equitable distribution of marital property. As a result, the division of marital property that awarded slightly less than one-half of the marital property was supported by the evidence in the record. McCauley v. McCauley, 2008 Va. App. LEXIS 82 (Va. Ct. App. Feb. 19, 2008).

Trial court did not abuse its discretion in dividing the marital property equally, as it considered both the husband’s predominant financial contributions to the marriage and his fault that ended the marriage as the most significant factors. Macione v. Macione, 2013 Va. App. LEXIS 218 (Va. Ct. App. July 30, 2013).

Marital fault. —

Trial court was not barred from considering effect of marital fault under factors other than subdivision E 5 of this section. Legat v. Legat, 1999 Va. App. LEXIS 497 (Va. Ct. App. Aug. 10, 1999).

Evidence established that wife’s desertion of marriage and relationship with another man had a negative impact on the marital partnership, and trial court did not improperly stress evidence of wife’s fault or use it to punish her in its equitable distribution award. Long v. Long, 1999 Va. App. LEXIS 566 (Va. Ct. App. Oct. 5, 1999).

The statutory directive in subdivision E 5, “specifically including any ground for divorce . . .,” does not limit consideration to grounds for divorce. Therefore it was proper for the trial court to consider evidence of the husband’s adultery, provided it contributed to the dissolution of the marriage, when making an equitable distribution award. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce, are among the factors to be considered in determining the amount of the award. The statute authorizes the commissioner and the trial judge to weigh these circumstances as a factor in arriving at the amount of the monetary award. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

Chancellor in a dissolution of marriage proceeding properly considered the husband’s marital fault and the negative impact of the husband’s repeated infidelities on the well-being of his family when she made her equitable distribution of marital property. Shaffer v. Shaffer, 2003 Va. App. LEXIS 415 (Va. Ct. App. July 29, 2003).

In a divorce action, a commissioner properly divided the parties’ assets on a 65/35 ratio in the husband’s favor; the commissioner’s conclusion that the wife’s romantic relationship with a co-worker was a precipitating factor in the dissolution of the marriage was a permissible consideration under subsection E of § 20-207.3, and in addition to noting the husband’s monetary contributions to the marital estate through his work as a cardiologist, the commissioner specifically addressed each of the subsection E factors and expressly predicated his decision upon them. Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 2006 Va. App. LEXIS 343 (2006).

Trial court did not err in dividing the equity in the marital residence equally between the parties because this section authorized its consideration of the circumstances and factors contributing to the dissolution of the parties’ marriage, which included misconduct by the party who owned the residence before the marriage, and a credibility determination supported a finding that the mortgage payments had been divided equally between the parties during the marriage. Botos v. Botos, 2021 Va. App. LEXIS 200 (Va. Ct. App. Nov. 9, 2021).

Judge need only consider relevant circumstances leading to marriage dissolution. —

Although subdivision E 5 requires the trial judge to consider the circumstances leading to the dissolution of the marriage, the trial judge need only consider those circumstances leading to the dissolution of the marriage that are relevant to determining a monetary award in order to avoid an unreasonable result. Bergdahl v. Bergdahl, No. 1173-91-4 (Ct. of Appeals Nov. 3, 1992).

Circumstances contributing to dissolution of marriage not limited to fault. —

Subdivision E 5 of this section does not confine the circumstances surrounding the breakup of the marriage only to fault that is the specific ground of a divorce. That section states that a court, in making an award, may consider “[t]he circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of § 20-91 (1) , (3) or (6) or § 20-95 .” Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37, 3 Va. Law Rep. 1475, 1986 Va. App. LEXIS 386 (1986).

To be considered, act of misconduct must have added to economic consequences. —

The trial court did not abuse its discretion in refusing to permit wife to amend the bill of complaint and submit evidence pertaining to husband’s misconduct since there was no suggestion that the additional acts of misconduct added to the economic consequences caused by the dissolution of the marriage and the evidence was irrelevant to the determination of a monetary award. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833, 5 Va. Law Rep. 291, 1988 Va. App. LEXIS 92 (1988).

Award not reduced because of fault. —

Subsection E of this section does not mean that if one party is entitled to a divorce on a fault ground, the monetary award due the other party must be reduced by a sum certain. Smoot v. Smoot, 233 Va. 435 , 357 S.E.2d 728, 3 Va. Law Rep. 2690, 1987 Va. LEXIS 212 (1987).

Where the husband’s departure from the marital home, although a legally cognizable fault ground for divorce, was not the cause of the dissolution of the marriage but only the last unhappy event in a marital relationship long since dissolved in fact, the chancellor reasonably decided that it would be unjust to alter the monetary award to which, in light of the other ten statutory factors, the husband was equitably entitled. Smoot v. Smoot, 233 Va. 435 , 357 S.E.2d 728, 3 Va. Law Rep. 2690, 1987 Va. LEXIS 212 (1987).

Affair’s emotional and monetary impact may be considered. —

Under the existing statutory scheme, husband’s pre-separation use of marital funds in pursuit of his extended extramarital affair would be appropriately addressed with the circumstances and factors which contributed to the dissolution of the marriage, as required under subdivision E 5, to the extent that it had any significant impact on the value of the marital estate. The court may also consider the negative impact of the affair on the well-being of the family, and the mental condition of the parties. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

Acts of adultery which occurred following marital separation. —

Since the acts evincing adultery occurred following the marital separation, the alleged misconduct of the husband, although providing a grounds for divorce, was under the circumstances of the case, such that the trial court did not abuse its discretion in refusing to give weight to it as a factor in determining the equitable distribution award. Bragg v. Bragg, Nos. 0852-89-4 (Ct. of Appeals July 3, 1990).

Finding of adultery does not control determination of monetary award. —

While a court is free to consider the circumstances that contributed to the dissolution of the marriage under this section, including adultery, a finding of adultery does not control determination of a monetary award. Barb v. Barb, No. 1177-91-4 (Ct. of Appeals Mar. 31, 1992).

Circumstances that lead to the dissolution of the marriage but have no effect on marital property, its value, or otherwise are not relevant to determining a monetary award, need not be considered by the trial court. Lightburn v. Lightburn, 22 Va. App. 612, 472 S.E.2d 281, 1996 Va. App. LEXIS 449 (1996).

Marital misconduct and husband’s contempt need not be factored in distribution award. —

While trial judge must consider all circumstances that led to the dissolution of the marriage pursuant to subdivision E 5 of this section, the trial judge need only do so to the extent that those circumstances are relevant to a monetary award. Thus, the trial judge correctly determined that neither the wife’s allegations of marital misconduct nor the husband’s contempt citation were proved to have any relation to the value of the parties’ marital property where the evidence failed to prove that those matters needed to be considered as a factor causing a diminution in the equitable distribution award. Belke v. Belke, No. 0317-91-2 (Ct. of Appeals June 2, 1992).

Contempt order proper. —

Since a husband did not include an argument in his questions presented, as required by Va. Sup. Ct. R. 5A:18 and 5A:20, it was not addressed on appeal; accordingly, because he failed to pay a lump sum alimony payment, the trial court’s contempt finding under subdivision K 2 of § 20-107.3 was summarily affirmed. Stoneman v. Stoneman, 2008 Va. App. LEXIS 458 (Va. Ct. App. Oct. 14, 2008).

Fault of husband not considered in award to wife. —

Commissioner based award of entitling two-thirds of marital assets to wife upon the equities and the rights and interests of each party in marital home and upon consideration of all of the factors set forth in subsection E of this section, and although wife pleaded with the commissioner to punish husband for his extra-marital relationship, nothing in the record suggested that the commissioner or the trial judge considered fault as a punitive factor in making the equitable distribution award; the references to husband’s marital fault in the commissioner’s report and in the decree were properly included as grounds for the divorce, and there was no indication that such fault was improperly considered in the equitable distribution award. Crump v. Crump, 1993 Va. App. LEXIS 404 (Va. Ct. App. Sept. 7, 1993).

Husband’s adultery had no economic impact upon value of assets. —

Even though the trial judge may have erred in finding no adultery by the husband, the erroneous finding was of no legal consequence and was harmless; husband’s adultery had no economic impact upon parties’ property nor did it affect the value of marital assets. Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618, 9 Va. Law Rep. 1320, 1993 Va. App. LEXIS 114 (1993).

Wife’s adultery justified distribution decision. —

Equitable distribution of a marital estate 60/40 in favor of a husband was proper since: (1) the wife’s adultery and her less-than-compelling loneliness excuse justified the distribution decision under § 20-107.3 ; (2) the trial court’s consideration of the husband’s parents’ considerable contributions to the marital estate was proper and provided an additional justification for the distribution decision; (3) the trial court considered all the § 20-107.3 factors; and (4) the trial court did not classify the property as marital and then distribute it as if it were non-marital, but took the husband’s family contributions into account in the division. Hamad v. Hamad, 61 Va. App. 593, 739 S.E.2d 232, 2013 Va. App. LEXIS 95 (2013).

Husband’s adultery properly considered. —

Trial court did not fail to consider the statutory factors addressed in subsection E of § 20-107.3 in awarding a wife the marital residence, as the trial court made numerous factual findings concerning the factors, including that the husband’s adultery caused the dissolution of the marriage. Milam v. Milam, 2013 Va. App. LEXIS 134 (Va. Ct. App. Apr. 30, 2013).

Trial court did not abuse its discretion when it considered the impact, economic and otherwise, that the husband’s affair had on the family’s well-being when distributing the marital assets. Wiley v. Wiley, 2017 Va. App. LEXIS 33 (Va. Ct. App. Feb. 14, 2017).

Trial court’s equitable distribution of the marital assets was not plainly wrong or without supporting evidence where expenses related to the affair relationship were not paid solely out of the husband’s post-separation income or assets. Wiley v. Wiley, 2017 Va. App. LEXIS 33 (Va. Ct. App. Feb. 14, 2017).

3.Contributions to family.

Where one party contributes substantially more to a marriage financially, the court may in its discretion, in weighing and balancing all of the factors in this section, give appropriate weight to that factor and make a greater award to the party contributing the most financially. Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675, 7 Va. Law Rep. 221, 1990 Va. App. LEXIS 153 (1990).

Contributions must be quantified by evidence. —

In making a division under this section, the commissioner found that, while the proceeds from the sale of the wife’s previous home were transmuted into marital property, husband failed to present evidence quantifying the value of his post-marital monetary and nonmonetary contributions to that property; thus where the commissioner recommended an award of $16,776 to husband and $50,266.45 to wife from the sale of the marital residence, with any remaining sale proceeds to be divided equally, his findings were “reasoned,” “measured” and “supported by credible evidence.” Edwards v. Edwards, 1997 Va. App. LEXIS 135 (Va. Ct. App. Mar. 11, 1997).

Wife’s testimony that inheritance funds were used toward the home was credible and supported the trial judge’s finding that the wife adequately traced her separate contribution to the home, and the award of equity in the marital home was reasonable. Hanyok v. Hanyok, 2002 Va. App. LEXIS 468 (Va. Ct. App. Aug. 13, 2002).

Trial court did not err in finding that a spouse’s separate contributions to the marital residence were limited to the down payment made from the sale of the spouse’s apartment because, while there was evidence as to the downpayment, there was no additional evidence to establish clearly how much the spouse paid, where the funds came from, and how it increased the value of the former marital residence. Cano v. Davidson, 2014 Va. App. LEXIS 128 (Va. Ct. App. Apr. 1, 2014).

Weight of earnings contribution not sole division factor. —

The equitable division of marital property is not based solely upon which partner contributed more earnings. Bryant v. Bryant, 1994 Va. App. LEXIS 17 (Va. Ct. App. Jan. 11, 1994).

Financial circumstances. —

Although a father argued that the trial court erred by deviating from the child support guidelines and not considering the parties’ current financial circumstances, their ability to pay, and the children’s best interests, the father’s allegation was not supported by the record. Jones v. Jones, 2015 Va. App. LEXIS 307 (Va. Ct. App. Nov. 3, 2015).

Parties’ notion of marriage as equal sharing may be considered. —

Trial court in determining equitable division of marital assets was permitted to consider that the parties’ notion of marriage was an equal sharing of the fruits of their labor and that their assets were jointly titled or kept in joint accounts. Matthews v. Matthews, 26 Va. App. 638, 496 S.E.2d 126, 1998 Va. App. LEXIS 118 (1998).

Neither equitable maxims nor perjury may be considered. —

Upon a finding that a monetary award is proper, the trial judge must determine the amount of the award after consideration of the 11 factors set forth in subsection E of this section. Neither the equitable maxims nor perjury are included among the factors to be considered. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

Both party’s contributions considered. —

Evidence supported a trial court’s decision to award a wife the great majority of the marital estate, under § 20-107.3 , because: (1) the husband’s monetary and nonmonetary contributions to the family were negative because the husband had essentially no income during the last ten years of the marriage, did virtually nothing to help with the work around the house, took no financial responsibility, and depleted the marital estate; (2) both the positive monetary and positive nonmonetary contributions flowed from the wife almost without fail because the wife continued to work for a financial institution throughout the marriage, obtaining a mortgage to purchase the marital home only because of her position and her conscientious effort to keep the family solvent; (3) the wife protected and grew the marital assets for ten years, despite the husband’s reckless spending, irresponsible behavior, and disregard of his wife; and (4) the parties acquired most of their assets during those last ten years because the increase in equity in the house was acquired in the last ten to eleven years of the marriage, and over a third of the wife’s pension, the only other significant asset, was acquired during the last ten years of the marriage. Roberts v. Roberts, 2007 Va. App. LEXIS 477 (Va. Ct. App. Dec. 27, 2007).

Award of equitable distribution based on a 55 percent share to the wife and a 45 percent share to the husband was appropriate because the trial court did not misapply any of the challenged factors of subsection E of § 20-107.3 and the factual findings pertaining to his strained relationship with his stepdaughter and wife were fully supported by the record. The record supported the finding that the wife was a devoted wife, mother, and economic partner with the husband and that she put 110 percent into the relationship. Crater v. Crater, 2013 Va. App. LEXIS 179 (Va. Ct. App. June 11, 2013).

Contribution to liabilities during separation. —

Trial court did not err in refusing to give a husband a credit for paying the mortgage, household expenses, and marital credit cards during the separation or to award him more of the assets; the equal division of the parties’ assets and debts ordered was proper as the subsection E factors were considered, and the court was not required to give a dollar-for-dollar credit in an equitable distribution for payment of debts out of separate property. Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008).

Premarital agreement. —

Trial court erred in awarding a former wife 50 percent of the equity in jointly titled real property, because it did not consider evidence of the former husband’s exclusive contributions to its acquisition, and the parties’ pre-marital agreement provided that all income was the separate property of the party who earned it. As the funds in an account came from a former husband’s income, which, under the terms of the parties’ pre-marital agreement, was to be treated as his separate property. Parsons v. Parsons, 2012 Va. App. LEXIS 79 (Va. Ct. App. Mar. 20, 2012).

Husband entitled to award despite criminal activity. —

Although final decree recited that husband’s “criminal activity ... led up to the parties’ separation,” no evidence tended to prove that the husband’s criminal activity or conviction had any effect upon the value of the real estate or mobile home or had a negative economic impact upon the marital estate. In the absence of any such evidence, the trial judge erred in determining that the husband had no rights or equity in the marital property and was not entitled under subsection E to an equitable award for his share of the marital assets. Morris v. Morris, 1998 Va. App. LEXIS 36 (Va. Ct. App. Jan. 27, 1998).

Husband’s lack of contribution. —

Equitable distribution award of the marital home to a wife and $7,000 worth of furniture to a husband was proper as: (1) the wife was subjected to abuse; (2) the wife presented evidence regarding each of the factors in § 20-107.3 ; (3) the wife used separate funds as a down payment on the house; and (4) the husband did not contribute toward the marital debts during the marriage or during the separation. Weal v. Weal, 2009 Va. App. LEXIS 86 (Va. Ct. App. Feb. 24, 2009).

Negative contributions are to be considered also. —

Just as a court may consider positive contributions to the marriage in making an equitable distribution award, it can also consider “negative” contributions in the form of squandering and destroying marital resources. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Conduct as negative contribution. —

Evidence that a husband’s extra-marital affair foreclosed contact with his school-age son, who was in counseling for his emotional problems, and required the wife to assume most family responsibilities and duties, supported the trial court’s finding that the husband’s actions constituted “negative non-monetary contributions,” and its consideration of that factor in distributing the marital property. Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224, 2003 Va. App. LEXIS 312 (2003).

Pursuant to subdivision E 5 of § 20-107.3 , in light of the trial court’s findings that the wife made a negative non-monetary contribution by squandering marital funds to buy drugs and the husband’s alcohol use did not constitute a negative non-monetary contribution, the trial court was not plainly wrong in dividing the marital estate. Grimes v. Grimes, 2008 Va. App. LEXIS 413 (Va. Ct. App. Sept. 2, 2008).

Husband’s criminal activity justified award heavily favoring wife. —

Trial court did not err in accepting the Commissioner’s grounds in support of dissolving the parties’ marriage and distributing the parties’ marital property in favor of the wife, where the husband refused to accept responsibility for the consequences of his negative conduct and repeated criminal activities, and such caused the wife: (1) substantial stress and turmoil; (2) to become physically ill, requiring counseling and anti-depressants; (3) to lose weight; and (4) to suffer physical abuse, which irreparably harmed the marriage. Budnick v. Budnick, 42 Va. App. 823, 595 S.E.2d 50, 2004 Va. App. LEXIS 176 (2004).

4.Debts and liabilities.

Debts of each spouse must be considered. —

Subdivision E 7 requires the trial court, in determining the amount of the monetary award, to consider the debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities. This provision requires that debts of each spouse must be considered, whether secured or unsecured. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

The “clean hands doctrine” is unavailable to a party when it is asserted in the context of equitable distribution proceedings. Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523, 4 Va. Law Rep. 1770, 1988 Va. App. LEXIS 4 (1988).

The trial judge must consider the debts of the parties when determining equitable distribution awards. Bergdahl v. Bergdahl, No. 1173-91-4 (Ct. of Appeals Nov. 3, 1992).

Ordering a wife to be liable for 25 percent of the marital debt was not an abuse of discretion under subsection C of § 20-107.3 , even though that included liability for an amount incurred on a credit card in the husband’s name, as a substantial amount of the debt on that card was marital debt, and the court could appropriately consider the basis for the debt and any other factors it deemed appropriate, under § 20-107.3 E 7 and 10 [now E 7 and 11]. Turonis v. Turonis, 2003 Va. App. LEXIS 130 (Va. Ct. App. Mar. 11, 2003).

It was not an abuse of discretion for a trial court to equally divide the parties’ debts because: (1) any debt acquired during the marriage was presumed to be marital absent satisfactory evidence that it was separate, which was not produced; and (2) credible evidence supported the trial court’s conclusion that the debts were primarily accumulated for family-related expenses. Lesesne v. Zablocki, 2007 Va. App. LEXIS 6 (Va. Ct. App. Jan. 9, 2007).

There was no evidence that debts were incurred solely for benefit of one party, and thus there was no error in trial court’s decision to require parties to share marital debts equally, despite husband’s greater ability to pay debts due to lottery winnings. Ruffin v. Ruffin, 2000 Va. App. LEXIS 128 (Va. Ct. App. Feb. 22, 2000).

Trial court did not err in classifying debt in overdraft protection account as husband’s separate debt, where husband failed to introduce evidence to show which checks caused overdraft or that checks were written for marital purposes, and husband had complete control over finances during marriage. Cline v. Cline, 1999 Va. App. LEXIS 403 (Va. Ct. App. June 29, 1999).

Debts allocated. —

Husband’s claim that the trial court erred by not addressing his debts on equitable distribution as required by subsection A of § 20-107.3 failed as the trial court allocated the marital debt, including a medical bill, to the husband and made each party responsible for any other debt in his or her name. Kramer v. Kramer, 2013 Va. App. LEXIS 48 (Va. Ct. App. Feb. 12, 2013).

Trial court erred in classifying the post-separation line of credit advances as marital where by increasing the balance on a line of credit and opening a new line of credit encumbering marital property, the husband decreased the marital estate while increasing his personal estate to distort the parties’ financial condition to his advantage. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

Trial court did not err in ordering that the debts on credit cards be divided equally because the evidence was sufficient to prove that the balances on the credit cards were marital debts. Emami v. Harlowe, 2014 Va. App. LEXIS 388 (Va. Ct. App. Nov. 25, 2014).

Court must consider how and when asset was acquired in determining the amount of any monetary award. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

In determining the amount of the award, the trial court is not required to quantify exactly what weight it gives to each of the statutory factors, though the findings must be based on the evidence presented. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Post-divorce mortgage payments. —

Trial court did not err in declining to award a former husband a credit for post-divorce mortgage payments on a house, as it had ordered him to make those payments in order to maintain the status quo pending final resolution of the case, which was acceptable under subdivision E 10 of § 20-107.3 , and the court was merely factoring the payments into the overall distribution of the marital estate. Griffin v. Griffin, 2012 Va. App. LEXIS 179 (Va. Ct. App. May 29, 2012).

Trial court did not abuse its discretion when it awarded a husband property while requiring both the husband and the wife to remain liable on the mortgage because the apportionment of debt reflected the value received during the marriage by both the husband and the wife as a result of the property being used as collateral in the family business. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Liability for forbearance. —

Even though wife might have had exclusive use of the home during separation, husband was credited for his post-separation mortgage payments and use of his separate property for the down payment for the purchase of the home, and the trial court’s equitable distribution of the home was based on its consideration of each of the statutory equitable distribution factors; trial court did not abuse its discretion by concluding that any liability for the forbearance should be split evenly between the parties. Stark v. Dinarany, 73 Va. App. 733, 865 S.E.2d 440, 2021 Va. App. LEXIS 219 (2021).

Student loans. —

Trial court did not abuse its discretion in classifying a husband’s student loans as marital debt, allocating 70% of the student loan debt to the wife, determining the amount of the student loan debt for equitable distribution purposes, and awarding spousal support to husband because it properly analyzed the statutory factors. Kim v. Lee, 2014 Va. App. LEXIS 11 (Va. Ct. App. Jan. 14, 2014).

Wife held solely responsible for debt. —

Wife failed to establish that debt of almost $50,000 she incurred on various credit cards, which she obtained after parties’ separation and in her name only, resulted from her payment of living expenses or some other proper purpose. Ferraro v. Ferraro, 2000 Va. App. LEXIS 164 (Va. Ct. App. Mar. 7, 2000).

In a divorce, it was not error to find an income tax debt was a wife’s separate property because (1) the parties filed separately, (2) the wife incurred the debt, and (3) binding precedent provided that the debt was the wife’s separate property. Pascarella v. McCoy, 2011 Va. App. LEXIS 8 (Va. Ct. App. Jan. 11, 2011).

Court may consider unequal contributions of parties toward acquisition of asset. —

If there is sufficient evidentiary ground to support such a finding, a court may consider the unequal contributions of the parties toward the acquisition of a specific asset and divide that asset accordingly; in so doing, however, the court must be careful to consider all of the criteria set forth in this section. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

Husband’s unsecured debt of $3,200 was subject to equitable distribution; the trial court reviewed the evidence concerning the debt and found husband failed to demonstrate the debt arose from any cause other than his personal needs, and the record supported the court’s ruling. Hopkins v. Hopkins, No. 0895-90-3 (Ct. of Appeals April 9, 1991).

Classification of loan as separate debt was error. —

Finding that a loan incurred during a marriage by the husband was the husband’s separate debt was error because the wife conceded that the money from loan was all used to pay marital expenses; the fact that the loan was the husband’s unilateral act, without the wife’s knowledge, did not make it a separate debt. The debt should have been allocated pursuant to § 20-107.3 .Boisseau v. Boisseau, 2008 Va. App. LEXIS 473 (Va. Ct. App. Oct. 21, 2008).

Classification of loan as marital debt. —

Circuit court did not err in classifying the loan as marital debt because it was incurred in the joint names of the parties before the date of the last separation of the parties; furthermore, the circuit court had the authority to apportion and order the payment of the debts of the parties based upon the factors listed, which the circuit court considered and then determined the amount of the husband’s share of the marital debt. Monroe v. Monroe, 2020 Va. App. LEXIS 139 (Va. Ct. App. May 5, 2020).

Property purchased with proceeds of loans made during marriage held separate. —

As a husband used proceeds from his separate property to buy rental properties during his marriage and to pay the debt incurred to acquire them, the rental units were his separate property even though some of the debt used to acquire them was incurred during the marriage. Simpson v. Simpson, 2005 Va. App. LEXIS 169 (Va. Ct. App. Apr. 26, 2005).

Trial court’s decision to allocate all the marital debt to the husband. —

Circuit court properly considered the statutory factors before it decided to distribute all the parties’ marital debt, which included the costs of the husband’s law school education and the establishment of his law practice after he was fired from his previous employment for misconduct, to the husband where he retained his law firm, which was the only substantial marital asset, and where he retained the marital residence, which was titled solely in his name. Barrett v. Barrett, 2005 Va. App. LEXIS 168 (Va. Ct. App. Apr. 26, 2005).

Apportionment of debt. —

Trial court did not err by ordering husband to pay half the credit card debts incurred by wife to cover marital expenses. Bloxton v. Bloxton, 1999 Va. App. LEXIS 255 (Va. Ct. App. May 4, 1999).

On appeal from an equitable distribution award, while evidence was introduced that both parties had numerous credit card accounts and they transferred balances from old accounts to new accounts, because the commissioner was unable to determine the source and the nature of the debts and whether they were indeed marital debts, the Appeals Court had no choice but to affirm the findings against the husband and find that his appeal from the order entered against him was meritless. Harrison v. Allegretto, 2007 Va. App. LEXIS 32 (Va. Ct. App. Jan. 30, 2007).

Although subsection C permits the trial court to require the receiving party to assume any indebtedness, allocation of debt remains within the sound discretion of the trial court. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Trial court did not err in finding that a wife owed a husband her 40 percent share of medical and other expenses pertaining to one of the parties’ daughters as previously agreed upon because it heard testimony from multiple witnesses and considered the exhibits tendered by the parties and determined that the husband did not present sufficient evidence to substantiate the amount he claimed the wife had to pay. Moret v. Moret, 2018 Va. App. LEXIS 130 (Va. Ct. App. May 8, 2018).

Trial court did not abuse its discretion in assigning marital debt to the husband where the parties established a pattern of living beyond their means supported by the husband’s separate investment account, the husband handled the parties’ finances and refused to discuss finances with the wife, and the loan was solely the product of the husband’s strategy for maximizing his investment returns. Blatz v. Blatz, 2019 Va. App. LEXIS 288 (Va. Ct. App. Dec. 10, 2019).

Trial court did not err in the apportionment of the marital debt because, given the lack of other liquid assets, a division of debt that closely tracked the parties’ respective incomes was appropriate. Gaines v. Gaines, 2021 Va. App. LEXIS 48 (Va. Ct. App. Mar. 30, 2021).

Use of line of credit. —

Because the expenditure of marital funds for items such as voluntary support, living expenses, attorney’s fees, and other necessities of life constituted a valid marital purpose and was not waste, the husband’s use of a line of credit to pay for his attorney’s fees incurred in the divorce proceeding and to pay for other unknown expenditures did not necessarily constitute use for a non-marital separate purpose as the expenditure of marital funds for items under subsection A of § 20-107.3 .Ovissi v. Salemi, 2009 Va. App. LEXIS 378 (Va. Ct. App. Aug. 25, 2009).

Trial court did not abuse its discretion in apportioning children’s therapy debts equally between a husband and wife because the fact that the debts were apportioned in a manner that the wife disagreed with did not demonstrate that the decision of the trial court was plainly wrong or without evidence to support it; the wife cited no authority requiring a trial court to apportion debts proportionate to the parties’ income. Butterman v. Butterman, 2009 Va. App. LEXIS 365 (Va. Ct. App. Aug. 18, 2009).

Mortgage and home equity line of credit. —

While the trial court properly classified the marital residence as marital property and properly valued the residence, the trial court failed to properly account for or apportion the mortgage loan or the home equity line of credit and failed to take into account the negative equity in the marital residence in arriving at its equitable distribution award and therefore, misapplied the mandate in this section. Hughes v. Hughes, 2013 Va. App. LEXIS 247 (Va. Ct. App. Sept. 10, 2013).

The court erred in allocating various pre-separation withdrawals from the parties’ bank accounts and savings bonds to the husband on the basis of waste where there was no evidence that the husband dissipated these assets in anticipation of divorce or separation or that the funds were spent for a purpose unrelated to the marriage; the evidence showed that the funds were used for the marital residence and a truck purchased by the husband, and both of these items were allocated in the equitable distribution award. Davis v. Davis, No. 1819-97-3 (Ct. of Appeals June 2, 1998).

The award of attorney’s fees is not a factor that should be considered by the trial court in determining the amount of a monetary award; a determination of attorneys’ fees may properly be made after a monetary award at the time the trial court has before it evidence of the parties’ respective abilities to pay counsel fees. Caputo v. Caputo, No. 0409-91-4 (Ct. of Appeals, March 17, 1992).

Funds from family to pay attorneys. —

Wife, as defendant in the divorce action, required the assistance of counsel and she secured funds from a family member to pay her attorneys; the trial court appeared to have implicitly found that the loan was incurred for the benefit of the family and sufficient evidence supported this finding, and no error was found in the circuit court’s classification of the debt as marital. Myers v. Myers, 2020 Va. App. LEXIS 111 (Va. Ct. App. Apr. 14, 2020).

Unpaid attorneys’ fees constitute debt and the trial court did not err in considering them. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Unreasonable attorneys’ fees may constitute waste. —

A trial judge might find that the use of marital funds to pay excessive, unreasonable attorneys’ fees constitutes waste. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

Mere delay in recording an encumbrance for an otherwise valid debt does not amount to a deliberate attempt to frustrate this section. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

Equitable distribution of tax liability. —

Trial court did not err in holding that a spouse was responsible for a tax liability which the court found was a marital debt. Wroblewski v. Russell, 63 Va. App. 468, 759 S.E.2d 1, 2014 Va. App. LEXIS 241 (2014).

Trial court did not abuse its discretion in equitably dividing the husband’s tax liability because the tax liability on the family business income, from which both parties benefitted, was incurred prior to the date of separation. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Trial court did not err by assigning the husband sole responsibility for the parties’ tax debt because it was not constrained by the tax code and appropriately considered the relevant factors under this section, including the husband’s role in the dissolution of the marriage and the parties’ relative ability to pay. The wife earned no income during the years that the liability accrued, and the trial court effectively allocated the liability in proportion to each party’s income for the relevant years. Fendley v. Fendley, 2021 Va. App. LEXIS 149 (Va. Ct. App. Aug. 3, 2021).

Unsecured debt. —

Nothing in Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134 (1986), was intended to imply that a valid unsecured debt was not to be considered by the trial court; this section mandates to the contrary. An unsecured debt is not an encumbrance on the property classified as marital property and therefore it simply does not affect the value of such property. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

Trial court did not err in allocating unsecured debt in the husband’s name to the husband as part of its equitable distribution award where he agreed to its classification as marital debt and that it be assigned to him because it was in his name. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

In the case of assets wasted or dissipated in anticipation of separation or divorce, however, equity can only be accomplished if the party who last had the funds is held accountable for them. The funds necessarily must be considered marital assets held by the party guilty of waste. The trial judge then may consider that one party has wasted assets as a factor when the judge determines the amount of the award. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

“Waste” is defined as the dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage is in jeopardy. Brundidge v. Brundidge, 2001 Va. App. LEXIS 43 (Va. Ct. App. Jan. 30, 2001).

Burden of proof as to waste. —

Once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose. Brundidge v. Brundidge, 2001 Va. App. LEXIS 43 (Va. Ct. App. Jan. 30, 2001).

Wasted assets to be included as marital property. —

When waste has occurred, the court must include the wasted assets as marital property and must consider the waste as a factor in determining the monetary award. Brundidge v. Brundidge, 2001 Va. App. LEXIS 43 (Va. Ct. App. Jan. 30, 2001).

Spousal support not waste. —

The trial court erred in determining that the husband committed waste of marital assets, as expenditure of marital funds for court-ordered spousal support did not constitute marital waste. Thomas v. Thomas, 40 Va. App. 639, 580 S.E.2d 503, 2003 Va. App. LEXIS 306 (2003).

Where one party encumbers the marital property with indebtedness in anticipation of divorce and to deliberately frustrate the provisions of this section the trial court would not be precluded from granting an award, notwithstanding the indebtedness secured by the encumbrance on the marital property. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

Transferred property. —

The rights, equities, and interest acquired when one spouse causes property to be transferred and titled in the name of the other must be determined in light of the conditions existing at the time of the acquisition. McClanahan v. McClanahan, 19 Va. App. 399, 451 S.E.2d 691, 1994 Va. App. LEXIS 720 (1994).

Not every conveyance of marital property after the marriage breaks down is waste; dissipation occurs “where one spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Harvey v. Harvey, No. 0524-95-4 (Ct. of Appeal Dec. 29, 1995).

In view of the trial judge’s decision to award the wife 55% of the marital property, most of which was satisfied by a transfer of real estate, there was no error in the trial judge’s decision to deny interest on that portion of the award satisfied by a transfer of property. Smith v. Smith, No. 0131-96-2 (Ct. of Appeals Jan. 7, 1997).

Fraudulent conveyances. —

Trial court’s finding in a fraudulent conveyance action that, in a divorce, the husband’s repayment of certain loans were fraudulent conveyances did not preclude the court, under res judicata, from crediting the husband with these loans when it entered an equitable distribution under § 20-107.3 , because there was not an identity of relief sought between the two actions. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

Husband was not entitled to credit. —

It was not an abuse of discretion to deny a husband’s claim for a credit under § 20-107.3 for invading the husband’s retirement accounts to pay the parties’ mortgage as the husband was voluntarily unemployed and had the capacity to earn a high income; had the husband been working, the husband would have had no need to invade the retirement funds. Ford v. Ford, 2008 Va. App. LEXIS 505 (Va. Ct. App. Nov. 18, 2008).

It was not an abuse of discretion not to give a husband credit for payment on a mortgage the wife was ordered to pay because (1) the court did not have to distribute marital assets equally, (2) the court considered the factors in subsection E, and (3) the evidence supported the court’s conclusions. Mabe v. Mabe, 2016 Va. App. LEXIS 185 (Va. Ct. App. June 14, 2016).

Gifted property. —

The decision of the trial court to award the wife one-third of the value of gifted property was not an abuse of discretion. Lightburn v. Lightburn, No. 2445-97-2 (Ct. of Appeals April 14, 1998).

Contribution of separate funds to maintain marital property. —

Commissioner did not err in failing to credit husband for contribution of separate funds used for routine maintenance and upkeep of marital residence. Stacey v. Stacey, 1999 Va. App. LEXIS 519 (Va. Ct. App. Sept. 7, 1999).

Court did not abuse discretion in balancing monetary and non-monetary contributions of the parties. —

In awarding wife in dissolution proceedings $22.1 million of $50.7 million in total assets, trial court did not abuse its discretion by balancing husband’s greater monetary contribution in the second half of marriage against wife’s substantial contributions to the family business in the first half of marriage and wife’s superior non-monetary contributions throughout the marriage. Matthews v. Matthews, 26 Va. App. 638, 496 S.E.2d 126, 1998 Va. App. LEXIS 118 (1998).

5.Other factors.

Wife’s shooting of husband. —

Even though a wife, on a second appeal of her divorce case, contended that her son, not she, shot her husband, and that she had lied to protect her son, contrary to her testimony in the first hearing, the law of the case doctrine precluded such evidence because the wife caused the material change in facts through her own litigation tactics. The trial court properly considered the evidence relating to wife’s role in the dissolution of the marriage as a factor under subsection E of § 20-107.3 in awarding the husband 62 percent of the marital assets. Campbell v. Campbell, 2011 Va. App. LEXIS 263 (Va. Ct. App. Aug. 9, 2011).

Tax consequences. —

Having considered the tax consequences before reaching its decision on the method of distributing the parties’ marital assets, the court was not required to frame its ruling to minimize or eliminate all negative tax consequences to husband. Newland v. Newland, No. 1837-96-4 (Ct. of Appeals Apr. 8, 1997).

Award of property distribution in favor of the former wife was proper where the record reflected that the trial court understood the relevance of the § 20-107.3 E 9 factor but nonetheless accepted the wife’s argument that the potential tax liability was too conjectural to warrant the requested adjustment. Owens v. Owens, 41 Va. App. 844, 589 S.E.2d 488, 2003 Va. App. LEXIS 639 (2003).

Spouse failed to show that the trial court erred with regard to considering the tax consequences of an award as the trial court expressly stated that it had considered the tax consequences and how much weight the trial court gave to this factor was a matter of discretion for the trial court. Peck v. Peck, 2014 Va. App. LEXIS 113 (Va. Ct. App. Mar. 25, 2014).

Trial court did not abuse its discretion in applying the statutory factors in § 20-107.3 when determining its equitable distribution award because the trial court specifically found that there was no tax consequence in granting one spouse a marital share of the ten percent interest of the other spouse in a law firm. Moreover, the court did not require the other spouse to withdraw funds from a 401(k) account to pay the award. Brake v. Brake, 2014 Va. App. LEXIS 126 (Va. Ct. App. Apr. 1, 2014).

Husband’s ownership interest in the accounting firm was hybrid property and thus subject to equitable distribution and the trial court did not commit reversible error in valuing his ownership interest as of the date of the hearing; the trial court correctly determined that there was a marital component of the ownership interest and husband never sought an alternate valuation date. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

Trial court did not fail to appropriately consider the tax consequences in distributing the marital share of husband’s ownership interest in the accounting firm; although the trial court recognized that the firm’s payment to husband for his interest would be taxable at some point, there were too many uncertainties to calculate with sufficient precision the ultimate effect, and the trial court concluded that the tax consequences are too speculative to reduce the award to wife. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

Trial court did not abuse its discretion in awarding wife half of the marital share to be paid by husband if and when he received pension payments; statute only required the trial court to consider the tax consequences of its award, which it did, and fact that the retirement plan made husband responsible for paying taxes on 100 percent of the marital share even if he received only 50 percent was something the trial court had to consider, but it did not require that the trial court reduce wife’s portion by any specific amount. Sobol v. Sobol, 74 Va. App. 252, 867 S.E.2d 774, 2022 Va. App. LEXIS 18 (2022).

No dollar-for-dollar credit for acquisition or care of marital property. —

Although the separate contribution of one party to the acquisition, care and maintenance of marital property is a factor that the trial court must consider when making its award of equitable distribution, this section does not mandate that the trial court award a corresponding dollar-for-dollar credit for such contributions. Overbey v. Overbey, 2001 Va. App. LEXIS 178 (Va. Ct. App. Apr. 3, 2001).

Duration of the parties’ marriage was properly considered by the trial court where the trial court did not expressly indicate how it weighed the short duration of the parties’ marriage in its overall analysis but, unlike its earlier award of equitable distribution, the court did not consider the relationship between the short duration of the marriage and wife’s “hardships . . . from the divorce, such as the expenses associated with relocating and interruption of her private counseling practice” in determining the amount of its monetary award. Lightburn v. Lightburn, No. 2445-97-2 (Ct. of Appeals April 14, 1998).

Tax consequences of a hypothetical sale were too speculative to be considered by trial judge in determining the present value of husband’s professional practice. Arbuckle v. Arbuckle, 27 Va. App. 615, 500 S.E.2d 286, 1998 Va. App. LEXIS 335 (1998).

Chancellor did not erroneously consider wife’s “future psychological, emotional and financial needs for the marital home” in determining the amount of the award and in ordering husband to convey his interest in the home to her. The only “need” of wife which the chancellor expressly considered under subdivision E 11 was her desire to retain the marital home. While the record contained evidence of wife’s “psychological and emotional needs,” it also contained evidence that husband planned to leave the country for a year and that he had previously indicated a desire for wife to retain the marital home. In this context, it was not error for the chancellor to fashion the equitable distribution of the parties’ marital wealth in such a way that wife would retain the marital home and husband would retain a large portion of his pension. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

Contribution to family business. —

Trial court did not err in considering the husband’s need in making the equitable distribution award because its allocations were not based on the husband’s economic difficulties; the trial court explained that the husband was the face of the family business and contributed more personal equity, financial risk and personal good will than the wife did, and it was in that light that the trial court awarded property, collateral for the business, and proceeds, and a business project to the husband. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Recognition of improvements by wife to marital property. —

Factors two and eleven of subsection E provide ample authority for the court to give recognition to the wife’s improvements that increase the value of the property. However, in recognizing the wife’s improvements, the court should apply these factors to the gross value of the property, rather than assigning the amount by which the wife’s improvements had increased its value as separate property. Leffel v. Leffel, No. 0644-85 (Ct. of Appeals Aug. 26, 1986).

Improvements found unnecessary. —

In a divorce action, the trial court did not abuse its discretion in awarding the wife a credit for four months of mortgage payments without giving the husband a corresponding credit, as the husband had exclusive possession of the marital residence and all rental income therefrom, and furnished evidence of expenses to maintain and improve the property, which the trial court could properly find were unnecessary. Zalusky v. Zalusky, 2002 Va. App. LEXIS 690 (Va. Ct. App. Nov. 19, 2002).

Percentage of monetary contributions toward acquisition of marital property is only one factor to be considered in making a monetary award. Bentz v. Bentz, 2 Va. App. 486, 345 S.E.2d 773, 3 Va. Law Rep. 27, 1986 Va. App. LEXIS 296 (1986).

Even though husband may have contributed considerably more money than his wife to the acquisition of the marital property and the well being of the family, there is nothing in subsection E that requires the judge to allocate financial contributions back to the contributing spouse. Such contributions are one factor for the judge to consider. Jones v. Jones, No. 1027-85 (Ct. of Appeals Sept. 22, 1986).

Source of funds used to acquire marital property. —

While the court in considering a monetary award is required to take into account the source of funds used in the acquisition of marital property, this factor is to be balanced against all other factors, including both monetary and nonmonetary contributions from the other party to the well-being of the family during the marriage. Bentz v. Bentz, 2 Va. App. 486, 345 S.E.2d 773, 3 Va. Law Rep. 27, 1986 Va. App. LEXIS 296 (1986).

Other factors held to offset “source of funds” factor. —

There were other factors favorable to the wife that could have led the trial judge to offset the “source of funds” factor favorable to the husband, where the husband had deserted the wife and there was evidence of nonmonetary contributions made by the wife, such as noncompensable secretarial services for the husband and her responsibility for cooking, cleaning, and laundry. Jones v. Jones, No. 1027-85 (Ct. of Appeals Sept. 22, 1986).

Short duration of marriage not basis for denial of award. —

Where wife was married six years to husband, relatively short duration of marriage did not justify denying wife any value for her rights and interest in $104,000 pension, and on remand court had to apply all factors under subsection E. Keyser v. Keyser, 7 Va. App. 405, 374 S.E.2d 698, 5 Va. Law Rep. 1140, 1988 Va. App. LEXIS 126 (1988).

Financial condition which is no worse is not basis for denial of award. —

Where wife’s financial condition at end of marriage was comparable to her condition at time she entered marriage, fact that party’s financial condition is no worse than when party entered marriage is not proper factor to deny party award based upon property acquired during marriage although condition is factor to be considered in adjusting parties’ equities. Keyser v. Keyser, 7 Va. App. 405, 374 S.E.2d 698, 5 Va. Law Rep. 1140, 1988 Va. App. LEXIS 126 (1988).

Economic hardship after divorce not a factor. —

In granting a divorce based on separation for a year, the trial court erred by awarding a wife all of the equity in the marital residence based on its finding that she would be unable to afford the mortgage after the divorce if the husband, who had chosen to leave the home, were awarded part of the equity. Subsection E of § 20-107.3 did not allow a trial court to consider evidence of economic difficulties following a divorce, although such evidence might be a factor in determining spousal support. Ballard v. Ballard, 2006 Va. App. LEXIS 416 (Va. Ct. App. Sept. 12, 2006).

Wife not entitled to support where previous voidable marriage not voided. —

Substantial spousal nonmonetary and monetary contributions found. —

Wife’s maintenance of the family home, support of the parties’ children, and use of a significant portion of her separate assets for these causes allowed appellant to devote his time and energies to the development of his practice. Therefore, the trial court was not plainly wrong in finding that her nonmonetary and monetary contributions to the marriage were substantial. Silvester v. Silvester, No. 0515-96-3 (Ct. of Appeals Dec. 31, 1996).

Dissipation of marital assets. —

While the trial court, in considering the factors in subsection E of § 20-107.3 , found that a wife had dissipated marital assets, it did not identify what marital assets she dissipated, and as the husband failed to preserve the issue, it had to be remanded for clarification. Neuhs v. Neuhs, 2012 Va. App. LEXIS 392 (Va. Ct. App. Dec. 4, 2012).

Trial court did not abuse its discretion in requiring the wife to reimburse the husband half of the amount that she removed from the account of the family business because the wife failed to prove that the money was spent for a proper purpose; the wife deposited the monies in her personal account, together with monies from her trust fund, and the evidence also demonstrated that the wife expended funds on personal vacations and gifts that contributed to undermining the marriage. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Trial court did not err in considering the husband’s withdrawal of retirement accounts funds prior to the hearing to be a negative contribution affecting the equitable distribution award and finding that the wife was entitled to half of the withdrawn funds because, although the trial court did not make an express finding of waste or dissipation, its ruling signified its conclusion that the husband used the funds for non-marital purposes. Creef v. Creef, 2021 Va. App. LEXIS 140 (Va. Ct. App. July 27, 2021).

Payment of separate debt with marital funds may be considered as a negative monetary contribution by the trial court in fashioning an equitable distribution award. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Although court could consider husband’s support for wife’s children in determining the equitable distribution, his contribution need only be considered under the factors outlined in this section; he is not entitled to a dollar-for-dollar credit. Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240, 1998 Va. App. LEXIS 353 (1998).

Fault for accident. —

Although a wife failed to overcome the presumption that a personal injury recovery was marital property under subsections A and H of § 20-107.3 since her testimony tended to show that her recovery from the insurers was to compensate for lost wages and medical expenses, the error was harmless as the trial court indicated that if the property was marital, it would be awarded to the wife under subdivision E 11 of § 20-107.3 as a husband’s negligence caused the motorcycle accident and injury that led to the recovery. Chretien v. Chretien, 53 Va. App. 200, 670 S.E.2d 45, 2008 Va. App. LEXIS 571 (2008).

Personal property taken in violation of pendente lite order. —

Trial court did not err in valuing and distributing the parties’ personal property in the manner in which it did or in ordering husband to return items he took from the home in October 2012 to wife where the husband engaged in a form of self-help that was in violation of the pendente lite order by entering the marital home without permission and taking purses and jewelry belonging to wife. Hugh v. Hugh, 2014 Va. App. LEXIS 222 (Va. Ct. App. June 3, 2014).

Award held proper. —

The court did not give extraordinary consideration to wife’s adultery in awarding husband the amount of his down payment paid on the couple’s marital home, where the payment was made out of husband’s pre-marital savings. Pommerenke v. Pommerenke, 7 Va. App. 241, 372 S.E.2d 630, 5 Va. Law Rep. 708, 1988 Va. App. LEXIS 99 (1988).

Record supported the trial judge’s determination that the marital property should be equally divided where the judge specifically noted the 25-year duration of the marriage and the monetary and nonmonetary contributions of the parties. Hanyok v. Hanyok, 2002 Va. App. LEXIS 468 (Va. Ct. App. Aug. 13, 2002).

When the trial court apportioned the parties’ tax liability, it properly considered the relevant factors of subsection E of § 20-107.3 and apportioned that liability in direct proportion to the parties’ taxable income for the years involved, and this ruling was both logical and within the trial court’s sound discretion. Zasler v. Zasler, 2003 Va. App. LEXIS 470 (Va. Ct. App. Sept. 9, 2003).

Although the separate contribution of one party to the acquisition, care, and maintenance of marital property is a factor that a trial court must consider when making its award of equitable distribution, a trial court is not mandated to award a corresponding dollar-for-dollar credit for such contributions; a husband’s failure to demonstrate he used his separate funds to pay down the mortgage, his inability to accurately document the amount of his payments, and his exclusive use of the property post-separation supported the trial court’s decision not to grant husband credit for the post-separation payments. Noce v. Noce, 2006 Va. App. LEXIS 149 (Va. Ct. App. Apr. 11, 2006).

Trial court did not err in finding the husband responsible for $100,000 in debt incurred prior to the final separation of the husband and wife, as the husband received that much after the husband and wife signed documents to borrow a greater sum against the marital residence at a time when the husband was thinking of leaving the wife, the wife testified that until the divorce proceedings were underway, the wife did not know the husband had received those funds, and the husband admitted that the husband received $100,000 from the home equity line of credit that was the husband’s separate debt. Cote v. Cote, 2007 Va. App. LEXIS 85 (Va. Ct. App. Mar. 13, 2007).

Record supported circuit court’s decision to award wife all of the relatively small percentage of the property that was marital, as the wife had lived at the subject property with the understanding that the property was hers, and the husband’s course of conduct had suggested that he was compliant with the wife’s full ownership of the subject property. Barrett v. Gibbs-Barrett, 2008 Va. App. LEXIS 96 (Va. Ct. App. Feb. 26, 2008).

Trial court specifically addressed each of the factors set forth in subsection E of § 20-107.3 and expressly based the board’s decision to award the wife 65% of the overall value of the marital assets upon them. The court focused in particular on the monetary and nonmonetary contributions of each party to the well-being of the family, the physical conditions of the parties, and the debts and liabilities of the parties; therefore, the court did not abuse the court’s discretion in awarding the wife 65% of the overall value of the marital assets. Rosedale v. Rosedale, 2008 Va. App. LEXIS 341 (Va. Ct. App. July 22, 2008).

Circuit court did not err regarding an award for negative nonmonetary contributions because it was not duplicitous of an award for waste and dissipation of assets. In addition, the circuit court did not err in its division of the couple’s accounting business by awarding the wife less than half of the value of the husband’s accounting business as there was no presumption that she was entitled to half of the business. Attiliis v. Attiliis, 2009 Va. App. LEXIS 261 (Va. Ct. App. June 9, 2009).

Trial court did not err in taking a 75-year-old husband’s age and his Parkinson’s disease into consideration in dividing the parties’ marital estate 55 percent to the husband and 45 percent to the wife because the husband’s age and health were mandatory considerations under subdivision E 4 of § 20-107.3 .Ay Hwa White v. White, 56 Va. App. 214, 692 S.E.2d 289, 2010 Va. App. LEXIS 178 (2010).

Trial court did not abuse its discretion in dividing the marital property equally because the court considered and noted one spouse’s support of the other spouse while the other spouse obtained a graduate degree and advanced in that spouse’s career. The trial court also noted the one spouse’s separate contributions toward the down payment of the marital residence and the purchase of a vehicle. Cano v. Davidson, 2014 Va. App. LEXIS 128 (Va. Ct. App. Apr. 1, 2014).

Evidence supported the circuit court’s equitable distribution decision because it considered the factors in the statute and found that a disproportionate award concerning commercial rental properties was appropriate; the circuit court based its decision on the husband’s monetary and nonmonetary contributions to the marriage, his successful management of the rental properties throughout the marriage, and the fact that some of the rental properties were acquired from his family. Parsons v. Parsons, 2014 Va. App. LEXIS 402 (Va. Ct. App. Dec. 9, 2014).

Because the wife would only receive her bonuses if she was employed at the time of disbursement, by disparaging the wife, the husband was endangering her bonus payments, and the court was free to consider the husband’s conduct when making the equitable distribution determination in splitting the wife’s bonuses 75% for the wife, and 25% for the husband. Roy v. Roy, 2020 Va. App. LEXIS 261 (Va. Ct. App. Oct. 27, 2020).

Error to consider separate property. —

Trial court’s equitable distribution award was reversed because (1) the court considered the father’s separate property, and (2) the father’s separate property was irrelevant, since the general assembly chose not to include such property as a factor in subsection E of § 20-107.3 .Wiencko v. Takayama, 62 Va. App. 217, 745 S.E.2d 168, 2013 Va. App. LEXIS 207 (2013).

Factors in awarding the family dog. —

Trial court did not abuse its discretion in awarding a husband 45 percent of the parties’ personal property, including the family dog, as: (1) the trial court considered the subsection E factors, (2) the husband located the dog at the animal shelter, (3) he adopted the dog, (4) he had a close bond with the dog, and (5) the wife was awarded 55 percent of the marital estate. Conahan-Baltzelle v. Baltzelle, 2004 Va. App. LEXIS 413 (Va. Ct. App. Sept. 7, 2004).

In a divorce in which a husband contested a trial court’s award of possession of the parties’ dog to a wife, the trial court did not fail to consider the equitable distribution factors because the court considered that: (1) both parties worked during the marriage and contributed to the family’s well being; (2) both parties participated in buying and maintaining the dog; (3) the dog was a gift “between the parties”; (4) it was not error for the trial court to consider evidence of the husband’s affair; and (5) it was not error for the trial court to consider evidence of the parties’ debts and liabilities. Whitmore v. Whitmore, 2011 Va. App. LEXIS 57 (Va. Ct. App. Feb. 22, 2011).

Wife failed to note with specificity which statutory factors were not considered by commissioner, or how those factors would have affected the court’s equitable distribution award. Mezzy v. Mezzy, 2000 Va. App. LEXIS 21 (Va. Ct. App. Jan. 18, 2000).

G.Pension and Retirement Benefits.

Pensions are subject to equitable distribution. —

The legislature intended all pensions, including military pensions, to be personal property and subject to equitable distribution. Sawyer v. Sawyer, 1 Va. App. 75, 335 S.E.2d 277, 1985 Va. App. LEXIS 65 (1985).

When pension benefits comprise a portion of the pool of marital assets, they are clearly contemplated by the scheme of this section. Subsection G of this section authorizes the trial court, in addition to the monetary award made pursuant to subsection D of this section, to direct payment of a percentage of the marital share of any pension or retirement benefits, also based upon consideration of the factors set forth in subsection E. Rose v. Rose, 1994 Va. App. LEXIS 741 (Va. Ct. App. Dec. 20, 1994).

It is well settled in Virginia that all pensions, including military pensions, may be classified as marital property subject to equitable distribution. Havird v. Havird, No. 0954-93-1 (Ct. of Appeals Jan. 3, 1995).

Where a first qualified domestic relations order, as interpreted by a pension administrator, paid a retiree’s first wife benefits from only one portion of the pension, subdivision K 4 of § 20-107.3 permitted the trial court to modify the order to effectuate the expressed intent of the original order, which was to pay the first wife 50 percent of the retiree’s accrued pension benefits before any deduction or reduction. Recker v. Recker, 48 Va. App. 188, 629 S.E.2d 191, 2006 Va. App. LEXIS 173 (2006).

Award to the husband of one-half of the wife’s state university retirement pension, which was earned during the husband and wife’s marriage, was not an abuse of discretion. Pensions that are marital property, such as the wife’s pension, were subject to equitable distribution. McCauley v. McCauley, 2008 Va. App. LEXIS 82 (Va. Ct. App. Feb. 19, 2008).

Awards may be decreed prior to pensioner’s receipt of payments even though future payments may be an expectancy. Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894, 11 Va. Law Rep. 89, 1994 Va. App. LEXIS 526 (1994).

Equitable distribution calculation procedure. —

To ensure an equitable distribution of the marital wealth, the marital share of the pension must be initially determined in accordance with the statute and any award thereof conditioned upon the specific limitations and considerations of subsection E, as well as any subsection D monetary award. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Once the marital share of a pension is ascertained through application of the statutory formula, any percentage award of the marital property constituting such marital share must promote a just allocation of the entire marital estate. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Like a monetary award, retirement benefit awards must be based upon consideration of the factors set forth in subsection E of this section. Brunelle v. Brunelle, 1995 Va. App. LEXIS 49 (Va. Ct. App. Jan. 17, 1995).

Trial court erred in calculating marital portion of husband’s military pension plan. Bloxton v. Bloxton, 1999 Va. App. LEXIS 255 (Va. Ct. App. May 4, 1999).

Trial court could award the wife 75 percent of her pension, because, as long as it considered the factors in subsection E of § 20-107.3 , it did not have to make an equal division of that pension. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

Trial court erred in determining the marital share of a husband’s military pension because it improperly classified the pension as separate property by employing a formula that excluded consideration of property that the husband acquired while he and his wife were only temporarily separated; until the wife moved out of the marital residence, the parties did not view their previous separations as permanent, and under the plain language of subdivision G 1 of § 20-107.3 , the marital share had to be based on the entire time that the parties were married. Reese v. Reese, 2008 Va. App. LEXIS 146 (Va. Ct. App. Mar. 25, 2008).

Trial court’s use of the coverture fraction in its Qualified Domestic Relations Order was not an appropriate method for effectuating the expressed intent of its final decree because the final decree was concerned with the amount of money that actually accrued during a certain time period, and in contrast, the coverture fraction was concerned solely with proportions of time, completely disregarding what may actually accrue during any particular period of time; since the coverture fraction was based on temporal proportions rather than on what actually accrued in an account during a particular time, the trial court effectively altered the terms of the final decree when it entered the order. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

If and when retirement plan benefits were received by a former husband, the marital share of the plan had to be determined by dividing the number of years he had been an equity partner with the law firm before the parties separated by the total number of years he had been an equity partner when he retired and was awarded plan benefits; the former wife’s award could not exceed 50 percent of this amount. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Wife was to repay the husband all payments made to the wife from the husband’s military retirement pension that were paid pursuant to the circuit court’s pendente lite order as it was the result of the improper equitable distribution of an asset by a pendente lite decree (that was also done pursuant to the circuit court’s incorporation of an abrogated and unenforceable separation agreement). Ruane v. Ruane, 2016 Va. App. LEXIS 320 (Va. Ct. App. Nov. 22, 2016).

Use of the coverture fraction to determine a former wife’s benefits was a proper exercise of jurisdiction because it did not substantively modify any term of an equitable distribution order but effectuated the parties’ intent to give the wife 50 percent of the marital share of the former husband’s retirement; the facts did not support using the valuation date referenced in the equitable distribution order because the husband was ineligible for retirement benefits as of that date. Crawley v. Crawley, 2021 Va. App. LEXIS 223 (Va. Ct. App. Dec. 7, 2021).

Pension is property and not expectation of income. —

Trial judge properly found that military pension is property subject to distribution by monetary award and is not merely expectation of income. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

When the trial court was dissatisfied with the evidence presented by either party as to the current value of the wife’s pension, it could, under subdivision G 1 of § 20-107.3 , decline to assign a current value to the pension and, instead, award a percentage of the marital share of the pension, in which case payment was made as the pension was paid. Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

Pensions presumptively marital property. —

Pension or retirement interests embraced within the statutory marital share are presumptively marital property and the party claiming otherwise must present evidence sufficient to overcome this presumption. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Burden of proof. —

Because one spouse failed to provide the trial court with sufficient evidence for the court to value a marital share, if any, in the other spouse’s retirement accounts, the trial court did not err in holding that the retirement accounts were the other spouse’s separate property. Emami v. Harlowe, 2014 Va. App. LEXIS 388 (Va. Ct. App. Nov. 25, 2014).

Where agreement did not label split as either support or property division. —

Where circuit court entered a divorce decree incorporating couple’s separation agreement which set forth a payment scheme by which husband would pay wife fifty percent of husband’s military retirement pension, and where the language of the agreement did not specifically label this split as either spousal support or a property division, the trial court found the agreement to unambiguously reflect the intent of the parties to create a property division and issued a qualified domestic relations order requiring husband to make the appropriate payments. The order did not effect an impermissible substantive change. Wisdom v. Wisdom (Hyler), No. 0368-97-3 (Ct. of Appeals Jan. 13, 1998).

Stipulated agreement waived interest in military pension. —

Though a trial court erroneously considered the unitary support award in denying a wife a marital share in her husband’s military pension, the appellate court affirmed the denial since the husband and wife’s stipulated agreement waived her interest in equitable distribution of the military pension. Ultimately, the trial court reached the right conclusion, but for the wrong reason. Courtney v. Courtney, 2006 Va. App. LEXIS 267 (Va. Ct. App. June 20, 2006).

Passive income earned on pre-marital contributions to defined contribution pension plan is separate property. Therefore, the trial court erred by failing to determine the amount of income from husband’s pre-marital separate investment in the pension fund. Moran v. Moran, 29 Va. App. 408, 512 S.E.2d 834, 1999 Va. App. LEXIS 191 (1999).

Formula employed to determine income or interest on pension plan. —

See Moran v. Moran, 29 Va. App. 408, 512 S.E.2d 834, 1999 Va. App. LEXIS 191 (1999).

Pension benefits accrued after the parties are divorced are not marital property. Wilson v. Wilson, 18 Va. App. 193, 442 S.E.2d 694, 10 Va. Law Rep. 1139, 1994 Va. App. LEXIS 209 (1994).

The funds contemplated and thus included within the provisions of subsection G, whether paid periodically or in lump sum, are funds paid or to be paid upon cessation of employment to the employee by his or her employer as a result of the employment as a means of deferred compensation. Robinette v. Robinette, 10 Va. App. 480, 393 S.E.2d 629, 6 Va. Law Rep. 2705, 1990 Va. App. LEXIS 111 (1990).

Proper valuation date of pension or retirement benefits is the same as other marital property and is within the court’s sound discretion. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987) (decided prior to the 1988 amendment).

Trial court improperly awarded a wife a marital share of her husband’s retirement account based on its value on a date other than the date of the parties’ separation. Webb v. Webb, 2004 Va. App. LEXIS 197 (Va. Ct. App. Apr. 27, 2004).

Equitable distribution award which limited a wife’s marital share of a husband’s Civil Service Retirement System pension to a fixed amount calculated as if the husband retired on the date of the parties’ separation, rather than when he actually retired and became eligible to receive his pension, and which excluded salary adjustments after the date of separation, was error. McGinniss v. McGinniss, 49 Va. App. 180, 638 S.E.2d 697, 2006 Va. App. LEXIS 596 (2006).

Amendment not applicable to pending litigation. —

There is no indication that the legislature intended for its amendment of this section with respect to pension survivor benefits to apply to pending litigation. Havird v. Havird, No. 0954-93-1 (Ct. of Appeals Jan. 3, 1995).

Valuation of pension based on information presented after evidentiary hearing. —

Trial court did not abuse its discretion by refusing to reconsider the value of the marital share of the husband’s pension based on information presented after the evidentiary hearing. Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257, 7 Va. Law Rep. 78, 1990 Va. App. LEXIS 143 (1990).

Propriety of present value calculation. —

A present value calculation is of direct use only when payment of the portion of the monetary award attributable to the pension is to occur immediately rather than over a period of time. Primm v. Primm, 12 Va. App. 1036, 407 S.E.2d 45, 8 Va. Law Rep. 420, 1991 Va. App. LEXIS 192 (1991).

Limitation of a pension award, payable in the future, to a present value calculation denied the benefit of future earnings and adjustments that are attributable to the deferred share and its future appreciation. Because subsection G of this section permits the distribution of benefits to be deferred by the obligor spouse until actual payment of the benefits, it is only fair that both parties share in the increased value of the pension or one will be receiving the increase in value over time which is attributable to the other’s marital interest. Havird v. Havird, No. 0954-93-1 (Ct. of Appeals Jan. 3, 1995).

An award of spousal support entitlement to 50 percent of the husband’s pension benefit did not terminate when the trial court’s determination of the present value of that interest had been paid, because the award intended payments for as long as both parties were alive and the determination of the present value of the wife’s interest was not set in order to limit the husband’s spousal support responsibility, but rather to assist the court in accurately determining the correct amount to be paid every month. Wood v. Chambliss, 2000 Va. App. LEXIS 554 (Va. Ct. App. July 25, 2000).

Enhancement of increased value of pension is clearly a part of the total pension interest component of the marital share equation and obviously distinguishable from a judicial award of interest on a deferred share of a pension. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Interest properly awarded on division of retirement income as marital property. —

Trial court properly assessed interest on a husband’s arrearages for spousal support because the final decree specifically awarded the wife a 45 percent share of the husband’s retirement, which operated as a judgment against the husband because it was for a specific portion of a marital property interest; thus, the trial court had authority to provide for interest on the principal sum awarded, or any part thereof, and fix the period at which the interest commenced. Mihnovets v. Mihnovets, 2004 Va. App. LEXIS 410 (Va. Ct. App. Aug. 31, 2004).

Pension payments received by husband between separation and final decree. —

Trial court did not abuse its discretion by ruling that the wife was not entitled to one-half of the pension payments received by the husband between the date of the parties’ separation and the date of the final decree; the trial judge stated that he chose to keep the pension intact, utilizing a valuation offered at the evidentiary hearing, and award the wife liquid assets and a monetary award; moreover, any pension monies paid to husband after the evidentiary hearing were necessarily presumed by trial court to be included in the total present value affixed to the pension. Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257, 7 Va. Law Rep. 78, 1990 Va. App. LEXIS 143 (1990).

When method of payment pursuant to subsection G determined. —

Subsection G provides a method by which the monetary award granted under subsection D may be satisfied. However, the court should not determine the method of payment pursuant to subsection G until it has fully complied with the previous subsections and requirements of this section, including valuation and a monetary award. Artis v. Artis, 4 Va. App. 132, 354 S.E.2d 812, 3 Va. Law Rep. 2161, 1987 Va. App. LEXIS 171 (1987).

Before a trial court determines to award equitable distribution of pension benefits by periodic installment rather than by lump sum monetary award, there must first be a determination of the pension’s present value. Although some confusion existed with respect to the application of this section with respect to pensions prior to the repeal of subdivision E 8 of this section, the Court of Appeals resolved this issue in Artis v. Artis , 4 Va. App. 132, 354 S.E.2d 812 (1987). There, it was held that the trial court should not determine the method of payment pursuant to subsection G of this section until it has fully complied with the previous subsections and requirements of this section, including valuation and a monetary award. Havird v. Havird, No. 0954-93-1 (Ct. of Appeals Jan. 3, 1995).

Limitation on method of payment. —

In the event that any part of the monetary award is based upon pension or retirement benefits, subsection G provides a limitation upon the method of payment. It places two restrictions upon payment: (1) No part of the award shall become effective until the party against whom such award is made actually begins to receive such benefits; and (2) no such award shall exceed 50 percent of the cash benefits actually received by the party against whom such award is made. Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18, 3 Va. Law Rep. 2186, 1987 Va. App. LEXIS 169 (1987).

Limitation on decree modification provision. —

Based on subdivision K 4 of this section, a trial court had authority to reinstate an equitable distribution decree on its docket in order to make the terms of the retirement or pension provisions effectuate the expressed intent of the original decree. Subdivision K 4 does not, however, allow a court to modify a final divorce decree simply to adjust its terms in light of the parties’ changed circumstances. Caudle v. Caudle, 18 Va. App. 795, 447 S.E.2d 247, 11 Va. Law Rep. 116, 1994 Va. App. LEXIS 540 (1994).

Although trial court has authority to modify the final decree to “effectuate” its express intent regarding pension and retirement benefits, any modification has to be consistent with the substantive provisions of the original decree. Caudle v. Caudle, 18 Va. App. 795, 447 S.E.2d 247, 11 Va. Law Rep. 116, 1994 Va. App. LEXIS 540 (1994).

Entry of an order purporting to change the substance of the original order or provide an interest in a pension that was not provided in the order would contravene the intent of the legislature in enacting this code section. Hoy v. Hoy, 29 Va. App. 115, 510 S.E.2d 253, 1999 Va. App. LEXIS 68 (1999).

By determining the marital fraction of the husband’s union benefit pension, the trial court necessarily declared that pension to be marital property and, by not dividing the post-separation pension, the trial court properly determined it was separate property; the final divorce decree limited the marital share to the union pension, and the trial court’s qualified domestic relations order ruling was consistent with the final decree. Bradley v. Bradley, 39 Va. App. 108, 570 S.E.2d 881, 2002 Va. App. LEXIS 631 (2002).

Trial court did not lose its jurisdiction 21 days after the entry of a final divorce decree to modify an order intended to divide a husband’s pension so as to conform its qualified domestic relations order to effectuate the intent of the original order to divide the husband’s pension equally from the date of the decree. Irwin v. Irwin, 47 Va. App. 287, 623 S.E.2d 438, 2005 Va. App. LEXIS 529 (2005).

Pursuant to subdivision K 4 of § 20-107.3 and Va. Sup. Ct. R. 1:1, the trial court did not err in declining to offset the attorney’s fees awarded the husband against a wife’s share of the husband’s retirement where it had already entered a final decree of divorce specifically stating the amount the wife was to receive, and the final decree did not require an offset for the fees. Khan v. Khan, 2014 Va. App. LEXIS 168 (Va. Ct. App. May 6, 2014).

Circuit court did not lack authority to take corrective action beyond the forty-five days reserved in the Approved Domestic Relations Order because although the ADRO retained jurisdiction for “enforcement” and “to allow time for its approval” by the plan administrator, it did not limit the circuit court’s authority under subdivision K 4 to revise its orders to comply with the language required to effectuate the intended pension award. Jackson v. Jackson, 2019 Va. App. LEXIS 301 (Va. Ct. App. Dec. 17, 2019).

Jurisdiction to modify decree to effectuate parties’ intent. —

When qualifying or maintaining a qualified domestic relations order, courts may modify any order intended to divide any pension plan to revise or conform its terms so as to effectuate the expressed intent of the order but such modification must be consistent with the substantive provisions of the original decree and not simply to adjust its terms in light of the parties’ changed circumstances. Williams v. Williams, 32 Va. App. 72, 526 S.E.2d 301, 2000 Va. App. LEXIS 221 (2000).

Fact that the trial court’s application of the subdivision G 1 formula for determining a former wife’s marital share of her former husband’s pension relied on salary increases he earned after the date of separation did not give the wife a greater pension interest than was legally warranted, as it was only fair that both parties shared in the increased value of the pension. Strausbaugh v. Strausbaugh, 2007 Va. App. LEXIS 198 (Va. Ct. App. May 15, 2007).

Divorce decree entitled a former wife to half of the net pension benefits paid by the former husband’s employer when he started receiving them. As the company that employed the husband when he retired 16 years later was a successor in interest to his former employer, in awarding the wife a share of the pension benefits the husband received from that company, the trial court did not modify the decree in violation of Va. Sup. Ct. R. 1:1, but instead conformed its terms to effectuate the decree’s expressed intent. Strausbaugh v. Strausbaugh, 2007 Va. App. LEXIS 198 (Va. Ct. App. May 15, 2007).

Trial court properly modified a qualified domestic relations order dividing a husband’s civil service annuity pension, under subdivision K 4 of § 20-107.3 , because: (1) the parties’ property settlement agreement plainly intended that the wife was to receive 37.5 percent of the pension, from which the cost of a survivor annuity was to be deducted; (2) the Office of Personnel Management, applying a regulation, interpreted the property settlement agreement to require that the survivor annuity cost be deducted twice; and (3) the Office of Personnel Management’s interpretation did not reflect the parties’ intent in the property settlement agreement, since nothing showed the parties intended to incorporate Office of Personnel Management regulations in the agreement. Craig v. Craig, 59 Va. App. 527, 721 S.E.2d 24, 2012 Va. App. LEXIS 35 (2012).

Where a marital settlement agreement incorporated in a divorce decree provided that funds from one of the former husband’s retirement accounts would be paid to the former wife by a qualified domestic relations order, but he withdrew most of the funds from that account before the order was entered, the trial court had the authority under subdivision K 4 of § 20-107.3 to enter a qualified domestic relations order regarding the husband’s other account, as this would effectuate the intent of the parties’ agreement. Forest v. Forest, 2013 Va. App. LEXIS 80 (Va. Ct. App. Mar. 12, 2013).

When a trial court clarified the trial court’s order regarding division of a husband’s pensions, the trial court had the authority to order the entry of a qualified domestic relations order, even though such an order was not part of the court’s final decree, because subdivision K 4 of § 20-107.3 allowed the court to modify the decree consistent with the parties’ agreement. Allen v. Allen, 2013 Va. App. LEXIS 260 (Va. Ct. App. Sept. 17, 2013).

Because subsection (K)(4) gave the circuit court the authority to modify any order dividing retirement benefits to revise or confirm its terms so as to effectuate the expressed intent of the order, the circuit court had jurisdiction to enter an order recalculating the marital share of retirement benefits owed to a former wife. Crawley v. Crawley, 2021 Va. App. LEXIS 223 (Va. Ct. App. Dec. 7, 2021).

Because Va. Code Ann. § 20-107.3 (K)(4) gave the circuit court the authority to modify any order dividing retirement benefits to revise or confirm its terms so as to effectuate the expressed intent of the order, the circuit court had jurisdiction to enter an order recalculating the marital share of retirement benefits owed to a former wife. Crawley v. Crawley, 2021 Va. App. LEXIS 223 (Va. Ct. App. Dec. 7, 2021).

Court was without authority to substantively modify original order. —

Where trial court entered a Qualified Domestic Relations Order (QDRO) amending the final decree of divorce, the trial court was without authority to substantively modify its original order equitably distributing husband’s pension benefits, irrespective of any agreement by the parties to the contrary. The jurisdiction of the court cannot be established by consent. Wilson v. Wilson, 25 Va. App. 752, 492 S.E.2d 495, 1997 Va. App. LEXIS 662 (1997).

Trial court lacked authority to order changes which substantively modified the original divorce decree by altering both the terms of payment and the amount of total payments to be made by husband, and by imposing an open-ended obligation on husband. Hastie v. Hastie, 29 Va. App. 776, 514 S.E.2d 800, 1999 Va. App. LEXIS 306 (1999).

Settlement agreement which a husband and wife entered stated that the wife would receive half the value of her husband’s employee retirement plan, valued as of July 31, 1989, and the trial court did not err when it refused to issue a qualified domestic relations order which added interest and dividends paid on that amount to the amount the wife received, after it entered a decree which adopted the parties’ agreement. Jafarace v. Jafarace, 2004 Va. App. LEXIS 390 (Va. Ct. App. Aug. 17, 2004).

As a modification reduced a wife’s interest in the husband’s retirement benefits and her monthly payments from the Office of Personnel Management, it modified the substantive terms of prior orders addressing the division of his retirement benefits and exceeded the authority provided by subdivision K 4. Accordingly, the circuit court lacked jurisdiction to modify the prior orders. Meade v. Sowards, 2016 Va. App. LEXIS 204 (Va. Ct. App. July 19, 2016).

Proposed order inconsistent with final equitable distribution order. —

Wife’s motion for entry of a Qualified Domestic Relations Order was properly denied as the wife did not challenge the final equitable distribution order, which awarded the husband 37 percent of the wife’s military retirement benefits, and the wife’s proposed order was inconsistent with the equitable distribution order, as it would have awarded 37 percent of the marital portion of the wife’s military retirement benefits to the husband; no statute authorized the trial court to modify the final decree, and Rule 1:1 prohibited the trial court from modifying the final decree in the manner requested by the wife. James-Dietrich v. Dietrich, 2004 Va. App. LEXIS 287 (Va. Ct. App. June 22, 2004).

Trial court may order distribution of a portion of a pension benefit as well as a monetary award pursuant to subsection G which considers the value of the marital share of a party’s retirement or pension plan. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Cash award proper. —

Trial court properly ordered a husband to pay the wife $275 per month for five years for her interest in the marital share of his 401(k) plan because, while the husband had dissipated all of the funds from the plan after the date of separation, the trial court was statutorily required to determine the value of the plan as of the date of separation and to order the husband to pay the wife for her share. McGarrity v. McGarrity, 2018 Va. App. LEXIS 94 (Va. Ct. App. Apr. 10, 2018).

Authority for awarding a percentage share of a pension, without a limit, save for the 50% limitation, is plainly granted by the statute. Primm v. Primm, 12 Va. App. 1036, 407 S.E.2d 45, 8 Va. Law Rep. 420, 1991 Va. App. LEXIS 192 (1991).

Sufficient evidence required to determine value and percentage of marital share. —

Under either the deferred distribution or immediate offset methods for distributing pension or retirement benefits, the party claiming to be entitled to a share of the fund must present sufficient evidence to enable the judge to determine what percentage of the pension is the marital share or to determine the present value of the marital share. Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618, 9 Va. Law Rep. 1320, 1993 Va. App. LEXIS 114 (1993).

Where both spouses were entitled to military pensions, but the only evidence of value was the wife’s testimony that, as a starting point, her pension was half that of the husband’s, and there was no evidence of the amount either could expect to receive, while the record contained sufficient evidence to allow the trial court to award each party a percentage of the marital share of the other’s pension, its decision not to make an award, based on a lack of evidence of respective values, was also not an abuse of discretion under subdivision G 1 of § 20-107.3 .Turonis v. Turonis, 2003 Va. App. LEXIS 130 (Va. Ct. App. Mar. 11, 2003).

Sufficient evidence existed to determine value and percentage of marital share. —

Trial court erred in determining that the marital portion of the husband’s pension plan could not be calculated and in thus awarding the husband the whole pension, as evidence in the record showed how many years he worked before he was married and how many years he worked after he was married, and, thus, a calculation could be made about what portion of the pension was marital as opposed to the portion that was separate property. Fowler v. Fowler, 2006 Va. App. LEXIS 93 (Va. Ct. App. Mar. 14, 2006).

Circuit court properly calculated and granted a wife a one-third portion of the husband’s railroad retirement benefits multiplied by the sum of the length of their marriage divided by the length of husband’s employment because the record did not reflect when husband began work, and only indicated that he retired at some point in 2016, the record was not clear that the statutory limitation would be exceeded and without evidence in the record to support his assignment of error, husband’s argument amounted to conjecture that could not satisfy the evidentiary standard required to find a clerical error that should have been corrected. Amos v. Amos, 2018 Va. App. LEXIS 211 (Va. Ct. App. July 31, 2018).

Insufficient evidence for court to determine marital portion of pensions. —

Because the wife conceded there was no evidence before the court as to what portion of the military retirement was marital, the trial court did not abuse its discretion in declining to award her any portion of the military pension; likewise, the trial court did not abuse its discretion in declining to award the husband any part of her pension. The trial court considered the factors of subsection E of § 20-107.3 , the evidence, and other circumstances of the case in determining there should be an essentially equal division of the marital property. Shannon v. Shannon, 2008 Va. App. LEXIS 18 (Va. Ct. App. Jan. 15, 2008).

Court-ordered payment required only as benefits payable. —

If the court directs payment of a percentage of the pension, profit-sharing, or retirement benefits in satisfaction of the monetary award, such payments can be required only as such benefits are payable. Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139, 4 Va. Law Rep. 716, 1987 Va. App. LEXIS 226 (1987).

Where the evidence renders a precise determination of a pension’s value practically impossible, an award of pension benefits to a payee spouse as those benefits are received by the payor spouse, may prove the only equitable method of considering the pension benefits in making an award. Johnson v. Johnson, 25 Va. App. 368, 488 S.E.2d 659, 1997 Va. App. LEXIS 526 (1997).

Trial court properly refused to include the preretirement survivor benefits in a qualified domestic relations order, as the parties’ final divorce decree limited the survivor benefits to postretirement benefits, and subdivision G 1 of § 20-107.3 allowed for payment to alternate payees only as such benefits were payable and actually received by the participant. Bradley v. Bradley, 39 Va. App. 108, 570 S.E.2d 881, 2002 Va. App. LEXIS 631 (2002).

Award of specified percentage of future pension benefits would not satisfy section’s mandate. —

Where the parties proffered no evidence which the trial court could use to value wife’s interest in the husband’s pension except for the stipulation as to the pension’s present value, an award of a specified percentage of future pension benefits would not satisfy the mandate of this section. The effect of awarding a percentage of an unknown benefit would have been to postpone the entry of an equitable distribution decree until such time as the pension payments were realized and there is no authority in the divorce statutes which permits trial courts to enter such decrees. Steinberg v. Steinberg, 11 Va. App. 323, 398 S.E.2d 507, 7 Va. Law Rep. 987, 1990 Va. App. LEXIS 209 (1990).

Where the retirement benefits were not payable to the husband for so long as he remained in his present employment, those benefits were not presently payable to the husband at the time of the court’s decree; therefore, the court erred in ordering that the monetary award based on these benefits “be now payable” by the husband to the wife. Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407, 4 Va. Law Rep. 80, 1987 Va. App. LEXIS 192 (1987).

Part of award based on pension benefits must be specified. —

Trial judge must specify separately any part of the monetary award that is based upon pension or retirement benefits and make special provisions for the payment of it in order to conform with payment restrictions. Price v. Price, 4 Va. App. 224, 355 S.E.2d 905, 3 Va. Law Rep. 2567, 1987 Va. App. LEXIS 257 (1987).

It was not error for the court to adopt the valuation figures submitted by wife since it was not required to make any determination of the present value of husband’s pension. King v. King, No. 1111-88-4 (Ct. of Appeals Aug. 29, 1989).

An IRA is not a pension, profit-sharing or deferred compensation within the meaning of subdivision G1 and is subject to present equitable distribution where the evidence discloses it is created with marital funds. Broom v. Broom, 15 Va. App. 497, 425 S.E.2d 90, 9 Va. Law Rep. 671, 1992 Va. App. LEXIS 313 (1992).

Trial court erred in ordering a “rollover” of the husband’s IRA into an IRA owned by the wife, because the husband’s IRA was not jointly titled property. Ozfidan v. Ozfidan, 2015 Va. App. LEXIS 148 (Va. Ct. App. May 5, 2015).

Funds lost character as pension or retirement benefits. —

Where although at the time funds were paid to husband by his employer they were “pension and retirement benefits” as contemplated by subsection G, where at the time the court considered these funds and made its monetary award, husband had deposited them, apparently to defer the payment of taxes upon receipt of them from his employer, and where and they were under husband’s unrestricted control, these funds had lost their character as “pension or retirement benefits” as contemplated by subsection G, and thus, they were not subject to the 50% limitation of that subsection. Robinette v. Robinette, 10 Va. App. 480, 393 S.E.2d 629, 6 Va. Law Rep. 2705, 1990 Va. App. LEXIS 111 (1990).

Military retirement properly based on married years in service. —

Trial court did not abuse its discretion in dividing a husband’s military retirement based on married time in service, rather than the point system proposed by the husband, as the husband failed to present a current, accurate computation of marital and non-marital points; further, the husband’s career periods, both marital and non-marital, were interrelated, influencing both the fraction of retirement benefits to be considered marital and the level of pay to which that fraction applied. Jordan v. Jordan, 2004 Va. App. LEXIS 285 (Va. Ct. App. June 22, 2004).

Military pension held marital property. —

Where the husband’s right to a military pension did not accrue until the day he had served 20 years, which occurred during the marriage, and he began receiving the pension 10 years before he left his wife, the pension was acquired during the marriage, and was, therefore, marital property. Sawyer v. Sawyer, 1 Va. App. 75, 335 S.E.2d 277, 1985 Va. App. LEXIS 65 (1985).

Trial court properly held that a wife could share in a husband’s military career status bonus as it was in the nature of retirement pay, would reduce the husband’s military retirement, and was a retirement benefit, rather than post-separation income, as those terms were used in the parties’ separation agreement, which had been incorporated into their divorce decree. Boedeker v. Larson, 44 Va. App. 508, 605 S.E.2d 764, 2004 Va. App. LEXIS 596 (2004).

Calculation of marital share of military retirement. —

Trial court properly calculated the marital share of a husband’s military retirement because the December 23, 2016 amendment to the Uniformed Services Former Spouses’ Protection Act required it to use the date of divorce as the hypothetical date of retirement in calculating the martial share of a military pension, the trial court was precluded by the Act from considering any military service or pay increases after the date of divorce, and since the husband had not yet retired, the wife would receive her interest in his retired pay when he actually retired. Starr v. Starr, 70 Va. App. 486, 828 S.E.2d 257, 2019 Va. App. LEXIS 134 (2019).

Because the record clearly established that the marriage overlapped with husband’s military service for approximately four years, the circuit court was plainly wrong in finding that there was not enough evidence before it to determine whether any portion of husband’s Army pension was marital property because the circuit court had all of the information necessary to apply the marital-share fraction. Stark v. Dinarany, 73 Va. App. 733, 865 S.E.2d 440, 2021 Va. App. LEXIS 219 (2021).

Indemnification provision pertaining to military pension upheld. —

Pension award not barred by marriage length less that statutory requirement. —

Although husband and wife had not met the ten-year marriage requirement contained in 10 U.S.C. § 1408, that was not a barrier to court’s division of the former spouse’s military retirement pay. It was but a factor in determining how the entitlement is to be collected. While 10 U.S.C. § 1408 prevents direct payment to the divorced wife, it was not error for the trial court to declare husband’s military pension to be marital property and award wife 17 percent of that pension upon his receipt of pension payments. Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894, 11 Va. Law Rep. 89, 1994 Va. App. LEXIS 526 (1994).

Stock option agreement within purview of section. —

Husband’s stock options were a part of a deferred compensation plan; the stock option agreements permitting the purchase of stock in the employer were offered to “key employees,” the options could be exercised only by the employee in the amounts and at the times prescribed by the agreements, and the options lapsed at specified intervals following the termination of the husband’s employment, thus, the husband’s stock options were part of a plan of deferred compensation that should have been considered under this section providing for the division of pension, profit-sharing or deferred compensation plan. Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463, 10 Va. Law Rep. 379, 1993 Va. App. LEXIS 513 (1993).

Disability pensions subject to equitable distribution. —

Clearly, the all-inclusive language of subsection G permitting the court to direct payment of a percentage of the marital share of “any pension” does not suggest the exclusion of disability pensions from the statutory scheme. Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643, 2000 Va. App. LEXIS 637 (2000).

Husband’s disability benefits are a function of his compensation during a marriage and are properly divisible as they replace his retirement benefit. A trial court erred in rejecting a wife’s qualified domestic relations order seeking a portion of her ex-husband’s disability allowance, which was paid to the ex-husband in place of his retirement benefit from a transit authority as a result of an injury he received, because the disability allowance was a retirement benefit as contemplated by subsection G. Navas v. Navas, 43 Va. App. 484, 599 S.E.2d 479, 2004 Va. App. LEXIS 348 (2004).

Circuit court did not err in classifying a husband’s line of duty disability benefits as marital property subject to equitable distribution because they were pension or retirement benefits; the retirement plan’s terms set out multiple ways in which the husband was entitled to receive benefits, including through regular retirement and disability, and the benefits functioned like traditional retirement benefits in terms of their wage replacement purpose. Henderson v. Henderson, 2018 Va. App. LEXIS 134 (Va. Ct. App. May 15, 2018).

No error in decision finding disability retirement benefit marital asset. —

There was no error in trial court’s decision finding husband’s disability retirement benefit a marital asset subject to equitable distribution or in its calculation of the percentage to be paid. Bennett v. Bennett, 1997 Va. App. LEXIS 611 (Va. Ct. App. Sept. 23, 1997).

A husband’s disability award from the Virginia Retirement System (VRS) constituted a retirement benefit contemplated by the statutory VRS plan, which expressly permitted any member to retire for disability upon specified terms and conditions, and was properly distributed as a “pension” or “retirement benefit” consistent with the intent of subsection G. Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643, 2000 Va. App. LEXIS 637 (2000).

Veterans’ disability benefits are expressly exempted from division in equitable distribution by federal law. Asgari v. Asgari, 33 Va. App. 393, 533 S.E.2d 643, 2000 Va. App. LEXIS 637 (2000).

Burden not met that funds were exempted retired disability pay. —

Trial judge did not err in considering funds in husband’s bank accounts as marital property subject to distribution by monetary award where funds consisted almost entirely of exempted retired disability pay since husband did not carry his burden in establishing that sources of his bank account funds were his disability pay. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387, 5 Va. Law Rep. 1259, 1988 Va. App. LEXIS 131 (1988), cert. denied, 493 U.S. 852, 110 S. Ct. 153, 107 L. Ed. 2d 111, 1989 U.S. LEXIS 4256 (1989).

Offset to jointly owned non-pension property. —

Where husband argued that the value of his pension benefits was used to determine the amount of the monetary award in favor of wife and he was required to satisfy that award by transferring his interest in the marital home to her, and where he argued that this amounted to wife’s receipt of a portion of his pension benefits prior to his actual receipt of those benefits, the chancellor did not err in the application of subsection G. The chancellor did not order the transfer of pension property solely owned by husband to satisfy the subsection D award. Rather, the chancellor reduced the share of property that wife would otherwise have been entitled to receive as an offset to the jointly owned non-pension property which husband was required to transfer to her. Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635, 8 Va. Law Rep. 3072, 1992 Va. App. LEXIS 150 (1992).

After reviewing the factors in subsection E, and within the scheme of the entire equitable distribution, the chancellor was authorized to consider the unequal efforts made by the husband and wife toward the acquisition of their deferred compensation plans and, accordingly, to grant their respective plans to the parties. Wilmott v. Wilmott, 1997 Va. App. LEXIS 47 (Va. Ct. App. Feb. 4, 1997).

Speculation by court as property valuation not mandated. —

Considering the factors set forth in subsection E, the trial court found that the husband could suffer substantial tax consequences if he sold the rental property. Contrary to the husband’s assertions, the trial court was not obliged to speculate as to the hypothetical value of the rental property or to speculate as to future tax liability and assessments. Wilmott v. Wilmott, 1997 Va. App. LEXIS 47 (Va. Ct. App. Feb. 4, 1997).

Contrary to the husband’s assertions, he was not entitled to any of the wife’s military retirement pension as of right, and even if the husband had presented evidence of what the marital share of the wife’s military pension would be, it was within the sound discretion of the trial court to choose to award part or none of it to husband, so long as the overall distribution of the marital property was equitable. Epps v. Epps, 2015 Va. App. LEXIS 76 (Va. Ct. App. Mar. 10, 2015).

Failure to classify. —

While the circuit court did not strictly adhere to the statute by not classifying or assessing the value of the wife’s military pension, the husband failed to offer adequate evidence of the pension to provide the circuit court with the basis to make a proper classification; at no point did the husband ever establish the time frame of the wife’s military service, and the husband could not complain now that the circuit court erred in failing to classify the pension. Epps v. Epps, 2015 Va. App. LEXIS 76 (Va. Ct. App. Mar. 10, 2015).

Marital portion. —

Wife’s disability retirement benefits were properly held subject to equitable distribution; trial court erred in failing to determine marital portion of such benefits, however, requiring remand. Godwin v. Godwin, No. 2790-98-1 (Ct. of Appeals Oct. 26, 1999).

Trial court erred by awarding a former wife 25 percent of the total value of her former husband’s retirement plan (when and if it vested) instead of awarding her the marital share of the plan. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Trial court abused its discretion by awarding the entirety of the marital share of a husband’s military pension to the wife becuase it made an error of law; the trial court did not have authority to award more than fifty percent of the marital share of the pension. Garrett v. Garrett, 2017 Va. App. LEXIS 104 (Va. Ct. App. Apr. 18, 2017).

Award of portion of husband’s pension. —

Under the facts, an award to wife of a sum equal to approximately 40% of the value of husband’s pension was an equitable distribution, and the trial court did not err in holding that the award was to be paid without interest and that any portion of the monetary award which was not paid at husband’s death would not be a charge against his estate. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d 535, 3 Va. Law Rep. 1, 1986 Va. App. LEXIS 293 (1986).

Where the trial court awarded wife a 50 percent interest in the portion of husband’s pension benefits that represented the marital share and the marital share of the pension was represented by a fraction equal to the period of husband’s employment with company during the marriage divided by husband’s total period of employment with company, the court complied with subdivision G 1 of this section when it adopted this method of awarding wife her marital share of husband’s pension. Herron v. Herron, No. 1824-93-1 (Ct. of Appeals Apr. 5, 1994).

The trial court properly awarded the wife the maximum share of the husband’s 401K pension authorized by the statute where the trial court found: (1) that the husband’s post-separation adultery was the cause of the parties’ divorce; (2) that the husband’s adultery occurred “within hours or days of his departure from the marital home” with a woman to whom he admitted he had an emotional attachment even before the parties separated, and (3) that the separation was disabling for wife, who incurred over $13,000 in medical expenses as a result of her emotional problems resulting from the separation. Mitchell v. Mitchell, No. 2283-97-3 (Ct. of Appeals April 14, 1998).

A trial court properly followed a commissioner’s recommendation in awarding a husband 65 percent of his military and civil service pensions and the wife 35 percent of such pensions where the commissioner had considered the factors set forth in subsection E of this section and had discussed how those factors applied to distributing the pensions, giving particular weight to the fact that the husband was the sole monetary and nonmonetary contributor to the accumulation, acquisition and maintenance of his pensions. McGay v. McGay, 2000 Va. App. LEXIS 628 (Va. Ct. App. Aug. 29, 2000).

Because there was a check to provide a traceable record, the trial court properly made a finding, based on the evidence submitted by a husband and wife in a dissolution proceeding, that the wife contributed $5,000 to her husband’s retirement fund, and was therefore entitled to an equitable credit in the separation of property. Catlett v. Catlett, 2004 Va. App. LEXIS 401 (Va. Ct. App. Aug. 24, 2004).

Trial court did not err in awarding a wife fifty percent of the marital share of a husband’s Virginia Retirement System (VRS) benefits when, as, and if the husband became eligible to receive them because the record supported the trial court’s finding that the husband’s VRS benefits would be divided according to a certain formula, with the numerator as the number of years from the date of marriage to the date of separation, and the denominator as the number of years that the husband was employed until retirement; the formula would not be limited by the husband’s salary as of the date of separation, and it took into consideration the pre-marital and post-marital contributions because the fraction diminished the marital share in relation to the number of years that pre- and post-marital contributions were made. Cassell v. Billips, 2008 Va. App. LEXIS 323 (Va. Ct. App. July 15, 2008).

Trial court did not err, in providing in the related qualified domestic relations order, that to the extent the designated agent was prohibited by law or regulation from paying the entire amount awarded to the wife, the husband would personally pay any shortfall to the wife because the trial court had the authority to order the husband to make any payments due but not payable directly from his military pension. Cusack v. Cusack, 53 Va. App. 315, 671 S.E.2d 420, 2009 Va. App. LEXIS 21 (2009).

Trial court erred in ordering that a wife was to receive her share of a husband’s military retirement benefits commencing on the date of the husband’s retirement, which occurred after the parties separated but before the wife’s complaint for divorce and prior to the equitable distribution hearing, because the date of commencement should have been the date of the evidentiary hearing; the wife advanced no argument that the husband dissipated the retirement funds he received prior to the evidentiary hearing, and the trial court made no such finding. Cusack v. Cusack, 53 Va. App. 315, 671 S.E.2d 420, 2009 Va. App. LEXIS 21 (2009).

Award of 25% interest in stock and military pension upheld. —

Evidence supported trial courts fashioning of monetary award which reflected husband’s greater contribution to the acquisition and maintenance of stock and husband’s completion of his educational training at the naval academy as the primary factor which established the marital standard of living, rather than the nonmonetary contributions of the wife, and hence it was not an abuse of discretion where wife was awarded only 25% interest in stock and military pension. Zipf v. Zipf, 8 Va. App. 387, 382 S.E.2d 263, 6 Va. Law Rep. 17, 1989 Va. App. LEXIS 82 (1989).

Award of 30% of each spouse’s pension benefits to the other. —

Under subdivision G 1, the trial court was authorized to award wife no more than 50% of the marital share of husband’s pension. Both husband and wife worked during the marriage and both parties had earned pension benefits in their own names. The trial court considered the parties’ marital property, including wife’s separate pension benefits, and awarded wife 30% of husband’s monthly pension benefits. Similarly, the trial court awarded husband 30% of wife’s pension. Therefore, because the trial court considered the statutory factors, based its decision upon the evidence, and did not abuse its discretion, there were no grounds for reversing the court’s decision concerning wife’s share of husband’s pension. Moore v. Moore, 1997 Va. App. LEXIS 576 (Va. Ct. App. Sept. 2, 1997).

Award of 50% of each spouse’s benefits to the other. —

Trial court did not abuse its discretion in awarding husband 50% of the wife’s retirement funds where such funds were acquired during the marriage and the court also awarded the wife 50% of the husband’s pension. Silcox v. Silcox, No. 0938-97-2 (Ct. of Appeals March 3, 1998).

Wife not entitled to any part of husband’s pension. —

Trial court properly awarded a wife only five percent of the marital home, and properly ordered her to pay the husband the difference in retirement benefits he would have received had the wife not refused to sign the paperwork unless the husband chose an option which provided benefits for the wife after his death; the husband already owned the home, and the wife rarely stayed there even after the husband made her a tenant in the entirety, and the wife contributed nothing to the husband’s retirement, as the husband was only one month from retirement when the parties married. Ghods v. Musick, 2005 Va. App. LEXIS 103 (Va. Ct. App. Mar. 15, 2005).

Because a wife failed to meet her burden of proof to show what portion of a pension the husband might receive from the Army reserves was marital, and due to the unlikelihood that he would realize any benefit therefrom, awarding the benefits to him had no effect on the wife’s award. Jacobson-Kaplan v. Kaplan, 2005 Va. App. LEXIS 494 (Va. Ct. App. Dec. 6, 2005).

Circuit court properly divided the parties’ marital property because, even assuming the three pages attached to the wife’s motion were actually pages from an immigration Form I-864, the pages were never actually admitted into evidence, and the wife was not entitled to part of the marital portion of the husband’s retirement account due to the short duration of the marriage, the relative economic and non-economic contributions of the parties and other factors, including the wife’s refusal to present any evidence as to her earnings or expenses. Wigley v. Wigley, 2018 Va. App. LEXIS 299 (Va. Ct. App. Oct. 30, 2018).

Wife entitled to her marital share of husband’s unvested retirement plan benefits. —

That a former husband had to remain an equity partner at his law firm to become potentially eligible to receive retirement plan benefits did not preclude his former wife from receiving her marital share of the plan, if and when he received benefits. Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519, 2013 Va. App. LEXIS 53 (2013).

Trial court incorrectly limited the marital share of pension benefits to values at age 55 since that result denied to each party a full participation in the statutory marital share of the other’s entire pension. Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229, 10 Va. Law Rep. 595, 1993 Va. App. LEXIS 562 (1993).

Trial judge erred by exceeding the authority granted by subdivision K 4 of this section because the judge changed the substantive terms of the final decree by delaying for several years the time when ex-spouse would be paid her part of the marital share of the retirement benefits after her former husband began receiving his share of the benefits. Caudle v. Caudle, 18 Va. App. 795, 447 S.E.2d 247, 11 Va. Law Rep. 116, 1994 Va. App. LEXIS 540 (1994).

Trial court did not abuse its discretion in awarding wife 30% of the marital share of husband’s state government pension. In light of husband’s substantial monetary contributions to the marriage, the 70%/30% division was not an abuse of discretion. Snyder v. Snyder, 1995 Va. App. LEXIS 523 (Va. Ct. App. June 20, 1995).

There was no abuse of discretion in awarding wife 40% of pension, as almost all of the financial contributions of the marriage were made by husband. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (Va. Ct. App. Nov. 29, 1994).

Award exceeded bounds of relief expressly requested. —

Having expressly requested only 50% of the present value of a husband’s 401(k) account, the wife relinquished any claim to more than 50% of the present value of that account. Therefore, to the extent it exceeded the bounds of the relief expressly requested by the wife, the trial court’s sua sponte award to the wife of 65% of the present value of the 401(k) account constituted an abuse of the court’s discretion. Rosedale v. Rosedale, 2008 Va. App. LEXIS 341 (Va. Ct. App. July 22, 2008).

Trial judge erred in considering the parties’ future earning capacities in determining the equitable distribution of the value of husband’s IRA. —

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 erred in considering the parties’ future earning capacities in determining the equitable distribution of the value of husband’s IRA; the fact that wife’s employment could be terminated at any time and the fact that wife would not receive retirement pay in connection with her current job had no bearing on the marital wealth accumulated by the parties during the marriage. Kennedy v. Kennedy, 2006 Va. App. LEXIS 471 (Va. Ct. App. Oct. 24, 2006).

The chancellor’s award without first determining the present value of the pension denied husband the opportunity to immediately satisfy the award in whole or in part. Havird v. Havird, No. 0954-93-1 (Ct. of Appeals Jan. 3, 1995).

The husband argued that valuing the deferred compensation plans as of the date of the evidentiary hearing was unfair because he continued to place funds into his deferred compensation plan after the date of separation, while the wife depleted the funds in her plan. While the dissipation of marital assets could justify an alteration of the valuation date, the court concluded that the wife’s plan withdrawals constituted reasonable living expenses that were necessitated by the husband’s desertion. Wilmott v. Wilmott, 1997 Va. App. LEXIS 47 (Va. Ct. App. Feb. 4, 1997).

Supplement to retirement benefits. —

Trial court erred in excluding supplement to husband’s retirement benefits from marital assets subject to distribution. Long v. Long, 1999 Va. App. LEXIS 566 (Va. Ct. App. Oct. 5, 1999).

Military retirement pay reduced by survivor benefit premium. —

Where trial court ruled that husband’s military retirement pay subject to proportional distribution to the parties would first be reduced by the amount of wife’s survivor benefit premium, and thus, made both parties bear a portion of the cost of this benefit, in the same proportion as they received a share of the military retirement pay, the trial court acted within its express statutory authority, and there was no error in the court’s decision to have the parties bear a proportional share of the costs of this benefit to wife. Quinn v. Quinn, 1997 Va. App. LEXIS 573 (Va. Ct. App. Sept. 2, 1997).

Improper classification of pension not harmless. —

Trial court’s error in including a husband’s pension as marital property in making an equitable distribution award was not harmless as the pension comprised nearly 10 percent of the marital assets and the appellate court could not say that including the pension in the division of marital property did not affect the trial court’s determination of the marital award. Gardner v. Gardner, 2005 Va. App. LEXIS 10 (Va. Ct. App. Jan. 11, 2005).

Pension distribution proper. —

Trial court did not err in dividing the wife’s retirement benefits on a basis of 60 percent for the wife and 40 percent to the husband, as the wife made substantial monetary contributions to the marriage, the wife’s nonmonetary contributions were more significant than the husband’s nonmonetary contributions, the wife had insufficient funds to pay the wife’s expenses, and the wife had a chronic medical condition while the husband did not. Cote v. Cote, 2007 Va. App. LEXIS 85 (Va. Ct. App. Mar. 13, 2007).

Circuit court did not abuse its discretion in leaving the decision to maintain the wife as beneficiary of a survivor benefit plan to the husband where although he was incapacitated, he was represented by a conservator, and given the conservator’s statutory powers and duties, there was no reason to assume that the conservator’s decision was likely to work a hardship on the couple’s children. Pederson v. Pederson, 2016 Va. App. LEXIS 217 (Va. Ct. App. Aug. 2, 2016).

Circuit court properly awarded a wife her marital share of the husband’s monthly annuity from his federal retirement because it considered each of the statutory factors, and ordered that “payment be made as such benefits were payable.” Garza v. Garza, 2018 Va. App. LEXIS 352 (Va. Ct. App. Dec. 18, 2018).

Ex-wife entitled to qualified domestic relations order. —

Ex-wife was entitled to a qualified domestic relations order enforcing a property settlement agreement that she had reached with a defined benefit plan participant under which the children of the marriage would be named as the beneficiaries as: (1) the ex-wife’s interest in the plan or her right to obtain a qualified domestic relations order was established under state law at the time of the divorce decree; (2) it was permissible under both federal and state law to revise the domestic relations orders so that they could become a qualified domestic relations order; (3) federal law had not held that the benefits of a plan excepted from 29 U.S.C.S. § 1055 vested in the surviving spouse at the participant’s death; and (4) the Commonwealth’s law had not been pre-empted. Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574, 2014 Va. App. LEXIS 16 (2014), aff'd, 289 Va. 189 , 771 S.E.2d 660, 2015 Va. LEXIS 15 (2015).

H.Considerations on Appeal and Remand.

Standard for reversal. —

A decision regarding equitable distribution will not be reversed unless it is plainly wrong or without evidence to support it. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

Appellate courts rely heavily on trial judge’s discretion. —

This section contains no presumption favoring equal division of marital property. In reviewing an equitable distribution award, appellate courts rely heavily on the trial judge’s discretion in weighing the particular circumstances of each case and only under exceptional circumstances will appellate court interfere with the exercise of the trial judge’s discretion. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833, 5 Va. Law Rep. 291, 1988 Va. App. LEXIS 92 (1988).

In reviewing an equitable distribution award on appeal, the Virginia Supreme Court has recognized that the trial court’s job is a difficult one, and it relies heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case. Anderson v. Anderson, 29 Va. App. 673, 514 S.E.2d 369, 1999 Va. App. LEXIS 268 (1999).

Law of the case. —

As the trial court’s equitable distribution determination had been reversed in whole, the law of the case doctrine did not apply and the court was therefore not precluded on remand from dividing the parties’ marital property and debts in a manner it deemed equitable. Griffin v. Griffin, 2012 Va. App. LEXIS 179 (Va. Ct. App. May 29, 2012).

Unless the record shows that the judge has abused his or her discretion by misapplying the statutory factors, the judge’s determination will not be reversed on appeal. Anderson v. Anderson, 29 Va. App. 673, 514 S.E.2d 369, 1999 Va. App. LEXIS 268 (1999).

Error in property distribution should have been corrected. —

Trial court chancellor plainly erred when he failed to correct an indication in the findings by the commissioner who heard the parties’ divorce action that an investment fund was considered for valuation of the marital estate for purposes of equitable distribution, as the commissioner had found that the fund was separate property; upon the matter having been brought to the chancellor’s attention, a correction should have been made. McKinnon v. McKinnon, 2006 Va. App. LEXIS 97 (Va. Ct. App. Mar. 21, 2006).

This section requires the court to determine the ownership and value of all real and personal property of the parties. Given the complexity inherent in rendering these determinations, appellate courts rely heavily on the trial court’s discretion. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833, 5 Va. Law Rep. 291, 1988 Va. App. LEXIS 92 (1988).

The court must be able to determine from the record that the trial court has given substantive consideration to the evidence as it relates to the provisions of this section. Donnell v. Donnell, 20 Va. App. 37, 455 S.E.2d 256, 1995 Va. App. LEXIS 280 (1995).

Adequacy of record. —

Record established that the trial made the requisite findings and considered the evidence adduced at the original hearing, as well as the relevant statutory factors, in determining that an even distribution of the husband’s retirement plan would be equitable, and, thus, the appellate court affirmed that even distribution on appeal. Neveln v. Neveln, 2006 Va. App. LEXIS 35 (Va. Ct. App. Jan. 24, 2006).

Record did not contain sufficient evidence for the court of appeals to review a wife’s claim that property was a gift to her because the wife did not submit any information to support her claim that the property was her separate property. Barker v. Barker, 2019 Va. App. LEXIS 155 (Va. Ct. App. July 2, 2019).

Deference to chancellor’s resolution. —

Like spousal support, the review of an equitable distribution order pursuant to this section requires deference to the chancellor’s resolution of the conflicting equities, and the decision will be disturbed only if it fails to comport with the statutory scheme, is without support in the evidence, or reflects an abuse of discretion. Rose v. Rose, 1994 Va. App. LEXIS 741 (Va. Ct. App. Dec. 20, 1994).

Findings must be supported by the evidence. —

In determining whether to grant a monetary award or in determining the amount of the monetary award, if the court’s findings are not supported by the evidence in the record, the court has abused its discretion, and the court’s determination must be reversed. Trivett v. Trivett, 7 Va. App. 148, 371 S.E.2d 560, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (1988).

A trial court’s division of property in accordance with the recommendations in a commissioner’s report was proper where the report was a careful, ordered and complete recitation of the steps taken in weighing the evidence and in deciding upon a fair and equitable distribution of the marital estate accumulated during the long marriage, and where the commissioner determined the legal title, ownership and value of the real and personal property, identified the marital and separate property, presented a clear, concise and cogent review and analysis of the evidence that embraced each factor in subsection E and, in orderly sequence, gave a complete presentation of the salient details of the marriage and fully evaluated all factors specified in that subsection. McGay v. McGay, 2000 Va. App. LEXIS 628 (Va. Ct. App. Aug. 29, 2000).

While the circuit court properly determined that an insurance policy was marital property where it was purchased during the marriage and its accrued cash value could be apportioned to the parties during equitable distribution, the court erred in finding the husband in contempt for wasting or improperly dissipating marital assets because a loan that he obtained from the insurance policy occurred several months before the court’s pendente lite order was entered. Campbell v. Campbell, 2014 Va. App. LEXIS 274 (Va. Ct. App. Aug. 5, 2014).

Conditions necessary for reversal of chancellor. —

Unless it appears from the record that the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor’s equitable distribution award will not be reversed on appeal. Smoot v. Smoot, 233 Va. 435 , 357 S.E.2d 728 (1987), In accord with bound volume. See Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723, 6 Va. Law Rep. 1715, 1990 Va. App. LEXIS 38 (1990).

No authority to change terms of equitable distribution. —

Trial court lacked authority under this section to enter an order changing a critical term of the equitable distribution, such as the amount of the payment or the calculation used to value the wife’s share, as the wife was already receiving payments. Jackson v. Jackson, 69 Va. App. 243, 817 S.E.2d 676, 2018 Va. App. LEXIS 225 (2018), aff'd, 298 Va. 132 , 835 S.E.2d 68, 2019 Va. LEXIS 149 (2019).

Substantive modifications not permitted. —

The statute does not empower trial courts to make substantive modifications in a final divorce decree. Jarvinen v. Votaw, No. 1763-98-4 (Ct. of Appeals Mar. 9, 1999).

Decree invalidating antenuptial agreement not appealable. —

An interlocutory decree invalidating an antenuptial agreement is not an appealable order. Webb v. Webb, 13 Va. App. 681, 414 S.E.2d 612, 8 Va. Law Rep. 2077, 1992 Va. App. LEXIS 61 (1992).

Expert witness secured at spouse’s expense. —

Where the wife “informally” moved for leave to secure an expert in the field to evaluate husband’s pension and retirement plan at his expense, and the trial court made no ruling, indicating that no formal motion was made to employ an expert, the issue could not be raised on appeal. While the evaluation of a pension plan may be difficult, the Court of Appeals was not required to decide whether the trial court abused its discretion in failing to require the husband to provide funds for the wife to secure an expert witness. Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546, 4 Va. Law Rep. 301, 1987 Va. App. LEXIS 218 (1987).

Reconsideration of equitable distribution where incorrect standard of proof applied. —

Where the trial court applied an incorrect burden of proof standard in finding that the wife had not proven “with reasonable certainty” that her husband had deserted her, the equitable distribution award was required to be reconsidered after the trial court applied the preponderance of the evidence standard to the proof that husband deserted the marriage. Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37, 3 Va. Law Rep. 1475, 1986 Va. App. LEXIS 386 (1986).

Decree held final upon its entry. —

The trial court’s retention of the cause on the chancery docket for 60 days to clarify the qualified domestic relations order (QDRO) provisions involved purely ministerial acts related to the QDRO, rather than alteration of its substantive provisions, therefore, the trial court did nothing more than retain the matter on the docket so that it could more easily exercise the jurisdiction granted under subdivision K 4 of this section and the decree was final upon its entry. Newsome v. Newsome, 18 Va. App. 22, 441 S.E.2d 346, 10 Va. Law Rep. 1048, 1994 Va. App. LEXIS 105 (1994).

The trial judge could not act upon a substantive issue after entry of a final order. Decker v. Decker, 22 Va. App. 486, 471 S.E.2d 775, 1996 Va. App. LEXIS 410 (1996).

Post-decree bifurcation of military benefits not affecting wife’s share. —

Where a settlement agreement gave a former wife a vested property right to one-half of her former husband’s monthly payments from the military, his post-decree bifurcation of the payments into retirement and disability portions (which reduced the monthly payments) could not alter that right; the trial court properly ordered him to pay her the difference between the former and the new military payments. Hubble v. Hubble, 2002 Va. App. LEXIS 459 (Va. Ct. App. Aug. 6, 2002).

Spousal support reexamined upon remand for new marital property award. —

Section 20-107.1 directs the court to consider various factors, including the provisions made with regard to the marital property under this section. Since the provisions with regard to marital property may be changed on remand, the trial court must necessarily reexamine spousal support in the light of the new marital property award. Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18, 3 Va. Law Rep. 2186, 1987 Va. App. LEXIS 169 (1987).

One of the factors to be considered under § 20-107.1 in determining spousal support and maintenance is what provisions are made with regard to the marital property under this section. Where the disposition of marital property is to be considered on remand, the court must necessarily reexamine spousal support in light of new or different findings resulting from the additional proceedings. Robinette v. Robinette, 4 Va. App. 123, 354 S.E.2d 808, 3 Va. Law Rep. 2151, 1987 Va. App. LEXIS 170 (1987).

Revaluation not necessary on remand. —

Trial court did not abuse its discretion in retaining the same valuation date for the pension fund as was used for all other items of marital property previously distributed. Revaluation of the pension fund using the remand date would have been inequitable because husband has used the fund and had decreased its value during the intervening years. Gwathmey v. Gwathmey, No. 1759-93-2 (Ct. of Appeals Nov. 15, 1994).

Revaluation where trial court was reversed on appeal. —

Where its order classifying a condominium as the former husband’s separate property was reversed on appeal, after remand the trial court properly ordered a reappraisal of the condo, rather than relying on the value stipulated at the prior equitable distribution trial. Scott v. Scott, 2004 Va. App. LEXIS 603 (Va. Ct. App. Dec. 7, 2004).

Consideration on remand of how and when property acquired after property previously misclassified. —

Where the trial court misclassifies the marital home as separate property, the equitable distribution award must be set aside and reconsidered. On remand, classification of the property as marital does not, however, preclude the trial judge from giving consideration to how and when the property was acquired in determining the amount of and method for paying a monetary award. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

All assets must be valued and classified prior to making equitable distribution. —

Trial court failed to follow the procedure set forth in § 20-107.3 in that it failed to classify and value the husband’s military benefits and to equitably distribute the marital portion of that asset; while the evidence on the issue was confusing, the uncontradicted evidence was sufficient to classify and value the benefit. Latimer v. Latimer, 2004 Va. App. LEXIS 35 (Va. Ct. App. Jan. 28, 2004).

In failing to distinguish spousal support from property distribution as required by the statutory framework, the trial court committed reversible error; such treatment not only reflects an erroneous application of the law, but also precludes principled review. Dotson v. Dotson, 24 Va. App. 36, 24 Va. App. 40, 480 S.E.2d 131, 1997 Va. App. LEXIS 3 (1997).

Trial court may not enter a decree inconsistent with a valid agreement between the parties; therefore it erred in accepting commissioner’s recommendation to include husband’s post-separation income from rental property in the equitable distribution award because the parties’ post-separation income had already been distributed according to the terms of the separation agreement. Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496, 1998 Va. App. LEXIS 189 (1998).

Untimely appeal. —

Although the trial judge had authority under subsection K to enter additional orders as necessary to effectuate and enforce an equitable distribution, because the husband’s objections to the decree did not toll the appeal period, pursuant to Va. Sup. Ct. Rules 5A:3(a) and 5A:6(a), the husband’s untimely notice of appeal was dismissed for lack of jurisdiction. Price v. Price, 2007 Va. App. LEXIS 75 (Va. Ct. App. Mar. 6, 2007).

Extension of deadline. —

Trial court properly extended a deadline for a husband to purchase the marital home from the wife in order to prevent the wife from nullifying the trial court’s earlier decree by refusing to cooperate and execute the documents of title. Williams v. Williams, 2006 Va. App. LEXIS 146 (Va. Ct. App. Apr. 11, 2006).

Deduction of appeal costs. —

A trial court does not err by failing or refusing to deduct costs awarded on appeal from trial court’s monetary equitable distribution award in divorce. Estate of Cummings v. Greenwood, No. 1361-99-3 (Ct. of Appeals Feb. 29, 2000).

Failure to preserve issue for appeal. —

Court of appeals was barred from considering a wife’s claim that the circuit court erred in granting a decree of divorce because the wife argued for the first time on appeal that the circuit court erred in granting the decree of divorce without evidence that the parties, or one of them, intended to separate with the intent that the separation be permanent; the wife failed to object to the sufficiency of the evidence regarding the parties’ intent to separate and that the separation be permanent. Friedman v. Smith, 68 Va. App. 529, 810 S.E.2d 912, 2018 Va. App. LEXIS 64 (2018).

H.Considerations on Appeal and Remand.

Standard for reversal. —

Appellate courts rely heavily on trial judge’s discretion. —

Law of the case. —

Error in property distribution should have been corrected. —

Adequacy of record. —

Deference to chancellor’s resolution. —

Findings must be supported by the evidence. —

Conditions necessary for reversal of chancellor. —

No authority to change terms of equitable distribution. —

Substantive modifications not permitted. —

The statute does not empower trial courts to make substantive modifications in a final divorce decree. Jarvinen v. Votaw, No. 1763-98-4 (Ct. of Appeals Mar. 9, 1999).

Decree invalidating antenuptial agreement not appealable. —

An interlocutory decree invalidating an antenuptial agreement is not an appealable order. Webb v. Webb, 13 Va. App. 681, 414 S.E.2d 612, 8 Va. Law Rep. 2077, 1992 Va. App. LEXIS 61 (1992).

Expert witness secured at spouse’s expense. —

Reconsideration of equitable distribution where incorrect standard of proof applied. —

Decree held final upon its entry. —

The trial judge could not act upon a substantive issue after entry of a final order. Decker v. Decker, 22 Va. App. 486, 471 S.E.2d 775, 1996 Va. App. LEXIS 410 (1996).

Post-decree bifurcation of military benefits not affecting wife’s share. —

Spousal support reexamined upon remand for new marital property award. —

Revaluation not necessary on remand. —

Revaluation where trial court was reversed on appeal. —

Consideration on remand of how and when property acquired after property previously misclassified. —

All assets must be valued and classified prior to making equitable distribution. —

Untimely appeal. —

Extension of deadline. —

Deduction of appeal costs. —

Failure to preserve issue for appeal. —

CIRCUIT COURT OPINIONS

Purpose. —

Husband’s request in his divorce case for a monetary award based primarily on the amount of money he expended for the benefit of his wife during the marriage was denied; equitable distribution of the parties property was not designed to allow one spouse to recoup from the other spouse monies expended during the marriage that benefited the other spouse. Becker v. Becker, 2005 Va. Cir. LEXIS 76 (Loudoun County June 7, 2005).

Jurisdiction. —

Although the separation agreement was ineffective to confer jurisdiction to modify the equitable distribution award, the court’s incorporation of that provision in a decree did not make the award itself void for lack of subject matter jurisdiction, nor did the court’s lack of subject matter jurisdiction to modify the decree render the agreement void. Hansen v. Hansen, 102 Va. Cir. 120, 2019 Va. Cir. LEXIS 260 (Chesapeake May 6, 2019).

Failure to provide value of property. —

No equitable distribution can be made without knowing the value of the property being equitably distributed. Where neither a divorcing husband nor wife provided any evidence of the value of various personal property, including furniture, household furnishings, and other tangible personal property, the trial court refused to consider the property for equitable distribution. McNicholas v. McNicholas, 2004 Va. Cir. LEXIS 117 (Loudoun County June 14, 2004).

Wife failed to have the value of the property, a car lot, classified as marital property as she did not present sufficient evidence of the fair rental value of the property; the witness who testified on the issue only had experience with residential property, and not commercial property, and any declaration of the fair rental value of the property would have been speculative. Smith v. Smith, 2005 Va. Cir. LEXIS 271 (Nelson County Dec. 20, 2005).

Valuation of personal property derived from insurance policy. —

Court derived personal property values, at the wife’s unrebutted suggestion, from the parties’ insurance policy, which came to a total of over $ 1.8 million. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Burden was not met to change valuation date. —

It was not necessary for the court to set an alternative valuation date in order to attain a just result under the circumstances of the parties’ marriage dissolution action, as the wife’s argument that for purposes of the proceedings a home appraised at $1.4 million should be treated as having only $343,000 in loans against it so that its “true” equity value exceeded $1 million dollars was illogical; a recently-completed residence valued at $1.4 million had not had time to appreciate in value by a million dollars, and the husband contended the property was burdened with debt equal, or almost equal, to its value. Elieff v. Elieff, 2005 Va. Cir. LEXIS 4 (Spotsylvania County Jan. 25, 2005).

Request for alternate valuation date denied. —

Based on an amendment to subsection E of § 20-107.3 by the General Assembly to include a new factor 10 allowing direct consideration of dissipation of marital funds without the need to reconstitute the marital estate, the circuit court declined to grant an alternate valuation date upon a wife’s motion, and instead addressed the argument thereon in factoring the distributions. Toth v. Toth, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

Since the parties carried on their marital status after the date the husband argued the marriage effectively ended, about seven years prior to the date he filed for divorce, the husband was not entitled to an alternative valuation date for the marital property. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

How property was divided. —

Trial court determined that based on the parties’ marital property, their debt, their contributions to the marriage, and their education and work experience that: (1) the husband would retain the house and relieve the wife from any liability in the house; (2) the wife would receive one-half of the husband’s Marine pension; (3) the husband would assume and pay all marital debts listed; and (4) the husband would pay the wife the sum of $50,073 by way of monetary award. Takehara v. Takehara, 2004 Va. Cir. LEXIS 237 (Fairfax County Sept. 3, 2004).

Property equally divided. —

Equal division of parties’ marital property was ordered after the factors in § 20-107.3 were considered because the parties had been married for almost 20 years, for the last several years of the parties’ marriage, the husband had provided all the income for the family while the wife was the primary caregiver for the parties’ son, and the funds used to acquire the marital residence were marital funds. Since the wife withdrew $84,500 from the parties’ jointly owned savings account and used almost all the money on her own expenditures, the court ordered the wife to pay the husband $30,000 to reimburse him for his portion of the funds expended. Capco v. Capco, 2005 Va. Cir. LEXIS 263 (Loudoun County Dec. 5, 2005).

Parties’ marital property was divided equally, considering that the husband furnished the marital home and had other financial assets that were utilized during the marriage, that the wife was the primary wage earner in the family for many years after the husband lost his banking position, and that the wife incurred unusually high credit card debts during the marriage, some of which the husband was still paying; the husband received a credit for the amount he was paying on his equity credit line deed of trust to pay the wife’s credit card expenses. Joachim v. Joachim, 2005 Va. Cir. LEXIS 278 (Nelson County July 19, 2005).

In a divorce ending a marriage of 23 years, the marital residence was ordered sold, and the proceeds split, although the parties were allowed to buy from the other for half of the marital equity; the court also entered orders equally dividing the parties’ pensions, Thrift Savings Plans, investment and bank accounts as of the date of separation, and dividing the parties’ vehicles, and other property. Marital debts were to be paid out of the proceeds from the sale of the marital residence. Sherman v. Sherman, 2007 Va. Cir. LEXIS 4 (Fairfax County Jan. 11, 2007), aff'd in part and rev'd in part, No. 0853-07-4, 2008 Va. App. LEXIS 108 (Va. Ct. App. Mar. 4, 2008).

In equitably distributing the property of a husband and a wife, the court applied all the dictates of § 20-107.3 , as amended, and all of the factors listed in subsection E of § 20-107.3 and determined that equity called for their marital assets being divided equally between them as the parties shared everything during their marriage, and they both worked full time and devoted their entire income and energies to their marriage and to the acquisition and maintenance of their marital assets. Ellis v. Ellis, 2012 Va. Cir. LEXIS 1 (Salem Jan. 20, 2012).

Husband’s motion to strike the wife’s case was granted because after considering the statutory factors the circuit court found that both parties made equal and significant monetary contributions to the marriage and developed successful careers, and both parties contributed equally to the non-monetary well being of the family. Windsor v. Windsor, 2019 Va. Cir. LEXIS 439 (Madison County Sept. 6, 2019).

Net short-term capital loss. —

Trial court refused to classify a net short-term capital loss carryover for income tax purposes as property where its value was speculative because it must be based upon future uncertain factors such as taxable income and other available deductions, exemptions, and credits and it lacked a reasonably reliable basis for an equitable distribution. McNicholas v. McNicholas, 2004 Va. Cir. LEXIS 117 (Loudoun County June 14, 2004).

Presumption that property purchased by either spouse during the marriage is marital property. —

Husband’s motion for reconsideration was granted and the court found that jewelry was marital property rather than the wife’s separate property, as the wife failed to rebut the presumption that property purchased by either spouse during the marriage was marital property. McCreery v. McCreery, 71 Va. Cir. 418, 2005 Va. Cir. LEXIS 131 (Fairfax County July 6, 2005).

Personal property presumed marital. —

Parties presented little evidence or argument as to personal property, the court had no evidence of title for any personal property, and except for the cars, there was no evidence of acquisition dates; therefore, the court presumed all personal property was marital and jointly owned. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Property not acquired during the marriage. —

Trial court ruled that the husband’s interest in a cardiology group that he purchased 14 months after he separated from the wife was separate property; it so concluded because it found that the interest was purchased with funds that he either earned or borrowed after the separation, and, thus, was acquired through use of his separate property. Mohammed v. Williams, 67 Va. Cir. 196, 2005 Va. Cir. LEXIS 162 (Roanoke County Apr. 22, 2005).

Where the wife sought to have the husband pay for credit card debt acquired prior to the separation, the trial court, considering the factors, noted that the debt was incurred for living expenses before the date of separation and found that the husband was responsible for half of the debt. Alexander v. Alexander, 2006 Va. Cir. LEXIS 100 (Portsmouth July 31, 2006).

Classification of property as part marital and part separate. —

Under the Brandenburg formula, the wife was entitled to 19.7 percent of the net proceeds of the marital home as her separate property because she satisfactorily retraced the entire $27,000.000 purchase price of the lot upon which the home was built to her separate premarital funds, and there was no evidence that the wife intended that the contribution be a gift. Sterna v. Sterna, 2003 Va. Cir. LEXIS 245 (Spotsylvania County Dec. 11, 2003).

Because the husband successfully traced the down payment of the marital residence to his separate townhouse property, but did not demonstrate that the $20,000 gift from his father was in fact separate property, or trace his separate funds to the retirement accounts, 55 percent of the marital property was distributed to the husband and 45 percent to the wife. Goldman v. Goldman, 2003 Va. Cir. LEXIS 252 (Fairfax County Dec. 29, 2003).

Parties’ property was equitably distributed; the option shares were part marital and part separate property of the husband, the jointly titled marital home was transmuted property and, thus, subject to the source of funds rule. Crawford v. Crawford, 2003 Va. Cir. LEXIS 253 (Fairfax County Nov. 24, 2003).

In a divorce case, the marital home was classified as part separate and part marital property for equitable distribution purposes because, although mortgage payments were made during the marriage, the wife was able to trace equity in the property back to her separate property. Michael v. Michael, 2004 Va. Cir. LEXIS 313 (Fairfax County Nov. 2, 2004).

Because the only method proffered by either party to value husband’s non-competition agreement was by its acquisition cost, the court found that the intrinsic value of the hybrid asset for the purposes of equitable distribution was $244,000, of which the wife was entitled to 60% of the marital portion thereof. Bushkar v. Bushkar, 2005 Va. Cir. LEXIS 160 (Roanoke County Sept. 21, 2005).

Because the parties’ marital home was acquired during their marriage and was maintained with marital funds prior to the separation of the parties, the wife’s one half interest in the property was marital. The real estate itself, however, was not subject to division or sale because it was not jointly titled between the parties, but rather between the wife and the husband’s brother. Abdallah v. Sarsour, 2006 Va. Cir. LEXIS 60 (Fairfax County Mar. 20, 2006).

Considering the subsection E factors and applying the Brandenburg formula, a wife was awarded a separate share of the marital real estate and the remaining marital value was divided 60 percent to the wife and 40 percent to the husband where the husband’s incomplete improvement project attempts often resulted in later structural damage. Whiting v. Mitchell Circuit Court, 2010 Va. Cir. LEXIS 38 (Rappahannock County Mar. 31, 2010).

Since a wife’s father had donative intent when he gave money to the wife and her husband during their marriage, pursuant to § 20-107.3 , the sale proceeds from their condominium was marital property; however, since the father knew that the parties were considering separation when he gave them an automobile, it was the wife’s separate property. Cummings v. Cummings, 80 Va. Cir. 463, 2010 Va. Cir. LEXIS 85 (Henrico County June 28, 2010).

Marital residence was hybrid property where the husband had used the proceeds from the sale of a townhouse that he owned prior to the marriage to acquire the residence. Dasher v. Nahidian, 2021 Va. Cir. LEXIS 11 (Culpeper County Jan. 20, 2021), modified, No. CL-19-893, 2021 Va. Cir. LEXIS 58 (Culpeper County Mar. 31, 2021).

Factors considered. —

Marital home, an IRA, a vehicle, and a stock fund were awarded to a wife, and the sale proceeds of a car, a 401K account, the checking account balance, and the husband’s pension were awarded to a husband under §§ 20-103 and 20-107.3 E where: (1) the husband made virtually all of the monetary contributions, and the wife made a majority of the nonmonetary contributions; (2) the value of the wife’s nonmonetary contributions was diminished by her sporadic efforts to pursue advanced education, a goal much more related to her personal interests than the needs of the family; and (3) although there was significant evidence of the wife’s disagreeable and obstinate conduct, the husband did not demonstrate that the conduct resulted in economic harm. Bonin v. Bonin, 2003 Va. Cir. LEXIS 181 (Fairfax County July 30, 2003).

Where parties presented conflicting prayers for equitable distribution relief in a divorce action and offered little or no documentation to decide many of the issues and failed to produce evidence requested during discovery, the trial court valued many of the assets based on the husband’s more credible testimony, wife’s lack of veracity, and awarded equitable distribution relief. Ranney v. Ranney, 2004 Va. Cir. LEXIS 34 (Fairfax County Mar. 4, 2004), aff'd, No. 1051-04-4, 2005 Va. App. LEXIS 41 (Va. Ct. App. Feb. 1, 2005), aff'd, 45 Va. App. 17, 608 S.E.2d 485, 2005 Va. App. LEXIS 38 (2005).

In a divorce action, the court considered the subsection E factors and awarded 60 percent of the equity in the parties’ marital home to the wife and 40 percent to the husband. The court also divided the marital credit card debt equally between the parties but found that the husband was responsible for the balance on two cards since it was the husband’s separate debt. Bentsi-Enchill v. Bentsi-Enchill, 2006 Va. Cir. LEXIS 37 (Fairfax County Jan. 12, 2006).

Proceeds from the sale of residential property, which was purchased during the parties’ marriage and which was in the wife’s name only, were divided equally between the parties after considering the subsection E factors, since both parties made monetary contributions to the acquisition and maintenance of the home, any disparity in the amounts contributed by the parties was not traceable and was also de minimis in relation to the purchase price of the home, the fact that the parties had been married for only two years did not weigh in favor of either party, and no other factors significantly weighed in favor of either party. Noorzai-Lovera v. Lovera, 2005 Va. Cir. LEXIS 299 (Fairfax County Dec. 27, 2005).

On remand to redetermine an equitable distribution of the marital residence, and upon considering the evidence in light of § 20-107.3 , a 50/50 share of the residence was entered, with an award to the husband representing his separate contribution, and a separate award representing his marital portion, less a credit to the wife. Thomas v. Wiese, 2006 Va. Cir. LEXIS 176 (Fairfax County Sept. 28, 2006).

Upon consideration of the subsection E factors, including the parties’ contributions to the well-being of the family from the parties’ jobs and care for the children; the 15-year duration of the marriage; and particularly the circumstances that led to the divorce, including the wife’s alcohol and psychological problems, and the husband’s periodic absence due to out-of-town work, an equitable division of the marital debts and assets was ordered, except that a certain business loan and a loan for a motorcycle were considered to be the husband’s sole responsibility. Kirkendale v. Kirkendale, 2010 Va. Cir. LEXIS 2 (Loudoun County Jan. 13, 2010), aff'd, No. 1446-10-4, 2011 Va. App. LEXIS 109 (Va. Ct. App. Mar. 29, 2011).

Since the husband would have the responsibility of providing hands-on care for several of the young, special-needs children for a number of years, plus the necessity of earning a living and keeping his job, the court awarded the husband the marital residence, 60 percent of the marital equity of the home, the family vehicle, the household maintenance equipment, and half of his pension. McDonough v. McDonough, 2012 Va. Cir. LEXIS 17 (Fauquier County Jan. 31, 2012).

Circuit court in making an equitable distribution considered that the parties both made monetary and nonmonetary contributions to the marriage, the husband worked full-time, the wife worked part-time to care for the parties’ minor child, the husband’s felony conviction had a negative monetary and nonmonetary impact on the family, and the wife had to return to work full-time because of the husband’s incarceration. The court awarded the wife the marital residence, with the wife to refinance the residence and deliver a sum of money to the husband. Hastings v. Hastings, 2020 Va. Cir. LEXIS 467 (Culpeper County Nov. 19, 2020).

Court distributed parties’ marital property in accordance with both the husband’s and the wife’s classification and valuation. The court considered that the parties were married for seventeen years, all the assets and debts accumulated during the marriage, the wife made the vast majority of the monetary contributions, the husband exacerbated the parties’ marital debts with unilateral spending and delinquent tax filings that the wife satisfied using marital assets post-separation, and the court found that the husband was cruel to the wife. Barth v. Kristin P. Barth Opinion Letter, 2021 Va. Cir. LEXIS 123 (Newport News Apr. 15, 2021).

Fault. —

In the parties’ action for divorce, the circuit court equitably divided the property under subsection E of § 20-107.3 , stating that fault was not a “wild card” to be used to punish a spouse at fault in equitable distribution. Because the evidence was insufficient to grant the husband a divorce upon desertion, the circuit court did not consider his argument that the wife should be precluded from receiving any equitable distribution award due to her desertion. Johnson v. Johnson, 2011 Va. Cir. LEXIS 32 (Fairfax County Feb. 7, 2011).

Pre-marriage agreement. —

Though a contract entitled “Pre-Marriage Agreement” was signed by a couple after they were married, the parties were bound by the same as a result of neither challenging it. As a result, a wife was not entitled to an award of spousal support based upon the law of Nevada, which the document bound the parties to, and debts were equally divided and adjusted according to the income and living expenses of the parties. Speer v. Schwarz, 2004 Va. Cir. LEXIS 116 (Loudoun County June 7, 2004).

Things contractually immune from equitable distribution. —

Antenuptial agreement provisions meant that incoming property and the increase in value of premarital separate property from such were treated as separate property and were not subject to equitable distribution; the agreement abrogated Virginia law so that increases in separate property due to significant marital effort were immune from equitable distribution, and the court would treat any increase in value to separate property to be separate property. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 129 (Fairfax County Aug. 21, 2020).

Following are contractually immune from equitable distribution: (1) each party’s separate property at the time of the marriage; (2) separate property coming to each of them during the marriage; and (3) increases in value to both. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 129 (Fairfax County Aug. 21, 2020).

Property located outside of country distributed. —

Real property, located in Canada, was distributed by the trial court in a divorce action, and the husband’s motion that the court not consider the properties for equitable distribution purposes was denied; subsection A of § 20-107.3 required the court to consider all property, real or personal, tangible or intangible, of the parties without any limitation on the location of such property, for purposes of distribution in a divorce action. Griffiths v. Griffiths, 2003 Va. Cir. LEXIS 61 (Loudoun County Apr. 16, 2003).

Quitclaim deed conveying marital interest. —

Husband’s signing of quitclaim deed to condominium units was sufficient to prove, by clear and convincing evidence, that he intended to convey the property to wife as her separate property, as the quitclaim deed was clear and unambiguous, and conveyed all of husband’s interest, including his marital interest. Rinearson v. Rinearson, 2002 Va. Cir. LEXIS 49 (Fairfax County Apr. 3, 2002).

Property put into trust. —

As the parties retained the right to remove the property from the trust, that indicated an intention to retain dominion over that property of the parties; thus, the property was marital property. Spreadbury v. Spreadbury, 78 Va. Cir. 142, 2009 Va. Cir. LEXIS 8 (Fauquier County Feb. 20, 2009).

Life insurance policies. —

Wife’s request for equitable distribution of two life insurance policies in the name of the husband was denied where the wife had not introduced enough evidence to show that the insurance policies were even partially marital property; the only evidence she introduced were annual policy statements from the year after the parties separated and the testimony from the wife that she saw entries in a check ledger for the payment of the premiums. Corey v. Dimattina, 2009 Va. Cir. LEXIS 122 (Fairfax County Nov. 16, 2009).

Change from separate to marital property. —

Commissioner erred in failing to report that a husband had a life insurance policy, because though the husband’s mother gifted the policies to the husband, the husband made premium payments after the gift and during the marriage; thus, the policies changed from separate property to marital property. Driskill v. Driskill, 2003 Va. Cir. LEXIS 380 (Norfolk May 29, 2003), amended, No. 98-262, 2003 Va. Cir. LEXIS 381 (Norfolk June 16, 2003), aff'd, No. 2625-03-1, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

Nonmonetary contributions. —

Negative nonmonetary contribution to the well being of the family under subdivision E 1 of § 20-107.3 need not have any economic impact before it can be considered as an equitable distribution factor. Stephenson v. Stephenson, 58 Va. Cir. 410, 2002 Va. Cir. LEXIS 43 (Wight County Apr. 3, 2002).

“Personal efforts” not shown. —

When a husband claimed a marital interest in condominiums a wife brought into the parties’ marriage, the condominiums were the wife’s separate property because: (1) she owned them prior to the marriage; (2) she maintained separate ownership of them; and (3) the husband did not sufficiently trace any contributions of marital or separate property to them or prove that his personal effort was significant or resulted in a substantial appreciation. Selleh v. Young, 2007 Va. Cir. LEXIS 38 (Fairfax County Mar. 21, 2007).

Dissipation of assets. —

Statute provided each spouse, upon their divorce, with a fair share of the property accumulated during the marriage; however, if marital assets were wasted or dissipated in anticipation of the separation or divorce, equity could be accomplished only if the spouse who last had the funds was held accountable for them. Whelan v. Whelan, 56 Va. Cir. 362, 2001 Va. Cir. LEXIS 85 (Spotsylvania County Aug. 17, 2001).

Wife was not required to reimburse husband, under subsection E of § 20-107.3 , for a portion of the funds the wife prematurely withdrew from the parties’ individual retirement account because the wife sufficiently demonstrated that the wife used the funds to pay attorney’s fees, the children’s college expenses, car repairs, household expenses, and other expenses the wife was responsible for paying during the marriage; however, wife was required to reimburse husband for part of a penalty imposed when the wife made the premature withdrawal from the parties’ individual retirement account because the evidence did not show the wife attempted to obtain the funds from other available sources. Gardner v. Gardner, 2010 Va. Cir. LEXIS 210 (Hanover County Dec. 14, 2010).

Separate property used for down payment on marital property. —

Where the husband’s father gave the husband $15,000 before the husband and his wife bought a house and afterward gave the husband $2,500 to pay closing costs, the trial court found that the money the father gave the husband was the separate property of the husband and that the marital residence was marital property; accordingly the Brandenburg formula was not applicable. Mutchler v. Forand, 2002 Va. Cir. LEXIS 110 (Loudoun County Apr. 16, 2002).

Inheritance funds. —

Part of husband’s inheritance from his parents was not traceable and did not constitute separate property under clause (ii) of subdivision A 1 of § 20-107.3 , although the husband met the burden of proving the receipt and nature of the funds by a preponderance of the evidence; some of the final three installments of the parents’ inheritance did not flow naturally into the claimed investments. Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County July 31, 2002).

Classification of home. —

Marital home was properly classified as hybrid property, and a wife was entitled to most of its equity because there was no joint mortgage, it was titled in her name, the mortgage was hers alone, and her down payment, derived from her retraceable separate funds, and the mortgage she assumed contributed disproportionately to the couple’s ability to acquire and hold it, so, given the short time the home was owned, a strict application of the Brandenburg formula was appropriate. Selleh v. Young, 2007 Va. Cir. LEXIS 38 (Fairfax County Mar. 21, 2007).

The marital residence was a marital asset as the parties purchased the marital residence after two years of marriage. The evidence indicated that the down payment and all subsequent monthly mortgage payments came from marital bank accounts. Elliot v. Elliot, 75 Va. Cir. 257, 2008 Va. Cir. LEXIS 78 (Fairfax County June 10, 2008).

Because the marital residence was hybrid property, pursuant to subsection E of § 20-107.3 , the wife was awarded 48% and the husband was awarded 52% of the remaining marital home equity after tracing their separate contributions. Polich v. Polich, 2011 Va. Cir. LEXIS 201 (Henrico County Dec. 12, 2011).

Marital home properly awarded to wife. —

Trial court found that the marital home was properly treated as the wife’s separate property; due to husband’s drinking problem, the husband quitclaimed all of the husband’s right title and interest to the wife, and there was no question that the husband intended to do so because the husband testified at an equitable distribution hearing that the husband did so to protect the property from creditors. Ngomondjami v. Ermarth, 2007 Va. Cir. LEXIS 69 (Fairfax County Apr. 10, 2007).

Increase in value of marital residence. —

Wife was entitled to a percentage of the increase in value of the marital residence pursuant to subdivision A 3 a of § 20-107.3 because, although the marital residence was purchased through a Veterans Administration loan due to the husband’s military service, there was no downpayment of separate property, the value of the residence more than doubled during the marriage, and there was little payment down of the amount owed on the mortgage during the parties’ marriage. Lee v. Lee, 2007 Va. Cir. LEXIS 238 (Newport News Nov. 27, 2007).

Character of property at acquisition governs. —

Wife’s bank account was her separate property because she brought it into the parties’ marriage and kept it separate, and the husband did not show any separate or marital funds commingled with it were retraceable or not a gift. Selleh v. Young, 2007 Va. Cir. LEXIS 38 (Fairfax County Mar. 21, 2007).

Partition and sale of marital home. —

After the court’s classification and valuation of the parties’ marital home, utilization of the Brandenburg formula and application of the factors in this section, the parties were entitled one-half of the marital share of their equity in the home, the home was ordered sold, and the proceeds were ordered divided in accordance with their respective interests in the equity of the home; further, the husband was to repay the wife for his waste and a portion of her attorney’s fees. Daniels v. Seals, 2005 Va. Cir. LEXIS 219 (Fairfax County Sept. 21, 2005).

Because there was no merit in a husband’s claim for work done to the marital home during the marriage, the home was awarded to the wife provided that she refinance it within 90 days and pay to husband his share of the equity. Smith v. Carter, 2006 Va. Cir. LEXIS 22 (Staunton Mar. 8, 2006).

Residence valued as of date sold. —

Marital home was valued as of the date closest to the date the husband sold his share of the marital home to his sister under subsection A of § 20-107.3 ; the husband and his sister had owned the home jointly prior to the parties’ marriage. Olympia v. Olympia, 2003 Va. Cir. LEXIS 75 (Fairfax County Apr. 22, 2003).

Valuation of home. —

After considering the factors enumerated in subsection E of § 20-107.3 , the court divided the equity in the marital home equally and awarded the husband exclusive use and possession, provided he refinance the home solely in his name and held the wife harmless from all debts and liabilities arising therefrom until the refinance occurred. Holmes v. Holmes, 2016 Va. Cir. LEXIS 184 (Chesapeake Oct. 18, 2016), modified, No. CL16-608, 2016 Va. Cir. LEXIS 187 (Chesapeake Nov. 22, 2016).

Court established the date of separation of the parties as the alternate date of valuation for the computation of increase in value in the marital home; there was no evidence that any appreciation in fair market value of the property after the date of separation was due to anything other than passive appreciation, thus it would not be marital property, in any event. Botos v. Botos, 2021 Va. Cir. LEXIS 47 (Roanoke County Mar. 16, 2021).

Alternate methodology used. —

Since the marital home had a fair market value less than the mortgage balance as of the date of marriage, any reduction in that balance that exceeded the fair market value of the marital home merely constituted a reduction in debt and not an increase in value of the marital equity in the home; consequently, an alternative methodology, permitted by statute, should be used. Botos v. Botos, 2021 Va. Cir. LEXIS 47 (Roanoke County Mar. 16, 2021).

Marital home classified as hybrid property. —

Marital home had both a separate property and a marital property component and the parties commingled marital funds with separate property, resulting in the presumption that marital funds were transmuted to separate property; however, to the extent the marital funds reduced the mortgage principle, that amount was traceable and the court granted a monetary award to the wife of one half of the increase in equity of the marital home from marriage to separation and to which both parties contributed equally. Botos v. Botos, 2021 Va. Cir. LEXIS 47 (Roanoke County Mar. 16, 2021).

Marital home was determined to have a value of $20 million; the court found credible the husband’s expert, a real estate agent, as he sold 6 of 7 homes in the neighborhood and thus knew the market, there were two nearby sales exceeding $20 million, the rare view of the Potomac river made the property desirable, and the wife agreed the home could be valued for that amount. Although the wife’s expert considered the home a negative asset, both experts agreed that a purchaser would spend at least $ 20 million to live on the parties’ property. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Current valuation used. —

In a divorce case, a court decided to value the property currently, instead of using the date that the parties separated 17 years earlier, because passive appreciation had occurred; moreover, evidence was presented as to the dollar amount of the repairs needed due to the wife’s commission of permissive waste. Using the current valuation date instead of the date of separation allowed the court to consider all of the factors necessary to arrive at a fair and equitable monetary award. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

No credit for homeowners’ dues and mortgage payments since separation. —

Because the husband enjoyed the sole and exclusive possession of the marital property for four years, without payment of rent to the co-owner, the wife, the husband was not entitled to a credit for homeowners dues and mortgage payments he made since the separation; rather, his maintenance of the asset while in possession of it was a factor to consider in making an equitable distribution. Loughan v. Loughan, 2003 Va. Cir. LEXIS 244 (Spotsylvania County Nov. 26, 2003).

Party has option to convey property to satisfy award. —

In a divorce case, a court valued the marital property and a husband was permitted to convey one parcel of property to the wife; the wife’s 50% share included a $26,000 devaluation that occurred due to the wife’s commission of permissive waste on property that she occupied after the parties’ separation. The rest of the amount owed to the wife was reduced to a monetary judgment after the entry of a final divorce decree. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

Valuation of personal property. —

In a divorce between parties who had a 33-year marriage, in which both of them had contributed equally to the family’s welfare, the value of the wife’s camera equipment and woodworking tools that she used in her work as an artist was determined by finding what a willing buyer was willing to pay a willing seller. The camera equipment, while old, had no value as an antique, and her tools were used and were not an extensive collection. Smigrod v. Dingman, 2004 Va. Cir. LEXIS 374 (Alexandria Apr. 14, 2004).

Valuation cannot be based on guesswork. —

Evidence was not sufficient to prove the value of a husband’s gun collection for purposes of equitable distribution because the husband’s witness offered a calculated guess as to the value of the guns based on his general but limited knowledge of the collection; the amount the commissioner arrived at as the value of the gun collection was based on guesswork and speculation, rather than reliable evidence, and no evidence was offered that would prove the value of the guns at the time the hearing was conducted before the commissioner. Davis v. Davis, 2008 Va. Cir. LEXIS 50 (Madison County Apr. 21, 2008), aff'd, No. 1241-09-2, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

Classification as gift. —

Wife showed that money the husband gave her during their marriage was a gift as it was customary, between them, for the husband to repay the wife for his portion of expenditures she made from her separate funds for their joint expenses, and, when they agreed the wife would buy a house from her separate funds, they also agreed that the money in question would serve as the husband’s reimbursement to the wife for this expenditure, and the husband executed an affidavit stating that this money was a gift, so it was clearly and convincingly the parties’ intent that this sum was to be treated as the wife’s separate property. Ellis-Landau v. Landau, 61 Va. Cir. 235, 2003 Va. Cir. LEXIS 154 (Roanoke County Feb. 20, 2003).

Monetary award to punish husband improper. —

Making a monetary award just to punish a husband for fathering a child outside the marriage is not permitted under § 20-107.3 .Williamson v. Williamson, 2003 Va. Cir. LEXIS 164 (Loudoun County Sept. 23, 2003).

Transmutation of property. —

Where a husband held certain corporate stock as his separate property but sold the stock during the marriage and placed some of it in accounts that were titled in both his name and his wife’s name, the separate property commingled with marital property and was transmuted pursuant to subdivision A 3 e of § 20-107.3 into marital property which was subject to equitable distribution between the husband and the wife in their divorce. Yawgel v. Yawgel, 60 Va. Cir. 131, 2002 Va. Cir. LEXIS 238 (Fairfax County July 29, 2002).

Husband was awarded only $7,729 as separate property out of his brokerage accounts as the remainder of the accounts was transmuted into marital property as the accounts were titled in the names of both parties and the husband could only retrace $7,729. Joachim v. Joachim, 2005 Va. Cir. LEXIS 278 (Nelson County July 19, 2005).

Rental properties a husband and wife owned were classified as marital because the husband made a gift to the wife of the interests in the properties, which were marital properties subject to division. Ferramosca v. Ferramosca, 2008 Va. Cir. LEXIS 21 (Richmond Mar. 26, 2008).

Husband’s separate funds lost their identity and transmuted into marital property because the evidence merely demonstrated that some of the husband’s separate property was used to purchase the marital home and failed to trace the funds liquidated from his mutual fund to the down payment for the marital home. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

Social Security benefits not assets subject to distribution. —

Under the Supremacy Clause of U.S. Const. Art. VI, cl. 2, federal law must be given effect over state law, and while Congress created exceptions to the anti-alienation provision in 42 U.S.C.S. § 407(a) for child support and alimony, it specifically excludes equitable distribution of property from the exceptions; thus, a wife’s Social Security benefits were not assets subject to equitable distribution under § 20-107.3 .Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County July 31, 2002).

Military pension held marital property. —

Because the parties separated four months after the husband retired from 20 years of service in the United States Army, the trial court awarded the wife 50 percent of the marital share of the monthly non-disability retirement of the husband, which was determined by a fraction using 240 as the denominator and a numerator of the number of months of marriage of the parties while the husband served on active duty up to the date of his retirement, which was agreed by the parties to be 41. Lee v. Lee, 2007 Va. Cir. LEXIS 238 (Newport News Nov. 27, 2007).

Parties were awarded their separate property and a wife was awarded half of the proportionate share of the 11 years and three months of credit the husband obtained while the parties were married under subsection E of § 20-107.3 as although the husband made the majority of the monetary contributions to the marriage, the wife made a majority of the nonmonetary contributions and advanced the husband’s career by fulfilling military social obligations; the wife agreed that her student loans, which were co-signed by the husband, were her responsibility. Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Norfolk County June 13, 2012).

Selective reenlistment bonuses. —

Husband’s selective reenlistment bonuses for any reenlistment after separation were not marital property, as they were not earned until the occurrence of the event, reenlistment, which entitled him to receive the bonus; the bonuses were not subject to equitable distribution. Roberts v. Roberts, 95 Va. Cir. 346, 2017 Va. Cir. LEXIS 58 (Chesapeake Apr. 5, 2017).

Waste. —

Commissioner erred by concluding that wife had made a negative monetary contribution to her marriage by setting aside marital funds and subsequently spending some of those funds without her husband’s knowledge while the parties were married and not contemplating divorce; the wife was entitled to an adjustment of the commissioner’s award of marital property because the wife’s actions did not constitute waste. Wilson v. Wilson, 58 Va. Cir. 245, 2002 Va. Cir. LEXIS 40 (Spotsylvania County Feb. 25, 2002).

Court determined that certain expenses from the parties’ joint account and the purchase of property for the wife’s new residence constituted waste; the court distributed the parties’ assets, and deducted amounts for the wasted assets. Proctor v. Proctor, 2004 Va. Cir. LEXIS 305 (Spotsylvania County Dec. 10, 2004).

Waste of marital assets not found. —

Wife was awarded one-half of a marital property, $500 per month in permanent spousal support, and an attorney fee, but a husband was awarded a greater portion of the marital assets after considering the factors specified in § 20-107.3 where: (1) the parties were divorced without allocating fault after their six-year marriage and had no children; (2) the husband earned 81 percent of the parties’ income, and almost all of the marital property was acquired using the husband’s funds; (3) the husband did not “waste” marital assets by living on the proceeds of a marital property, two 401K plans, and a stock purchase plan while he was unemployed; (4) the husband brought property into the marriage, while the wife did not; and (5) neither party alleged that the other was voluntarily underemployed. Crawley v. Crawley, 2004 Va. Cir. LEXIS 7 (Loudoun County Jan. 29, 2004).

Money intended as gift, not loan. —

In making an equitable distribution under § 20-107.3 , the court determined that monies received from the husband’s mother were intended as gifts, and not monies that were to be paid back, and the monies were not assets that had been wasted by the wife. Jordan v. Jordan, 2003 Va. Cir. LEXIS 43 (Spotsylvania County Mar. 6, 2003).

Division of marital property. —

After crediting the wife with the house payments she had made since the parties separated, the marital property in the home was divided equally; the husband was awarded 15% of the wife’s pension and an automobile. Nelson v. Loth, 2002 Va. Cir. LEXIS 228 (Fairfax County Aug. 6, 2002).

Since the wife did not show that there existed marital property of the divorcing parties that was not covered in the commissioner’s report, the wife did not show that the commissioner failed to recommend an award pursuant to § 20-107.3 that encompassed all of the parties’ marital property. McCoy v. McCoy, 2003 Va. Cir. LEXIS 40 (Norfolk Apr. 11, 2003).

Marital residence was acquired during the marriage and was titled in both names, and was therefore marital property, under subdivision A 2 of § 20-107.3 , and the source of the funds for the residence’s purchase was more appropriately considered under the second factor of this section, in determining equitable distribution; the wife was awarded 25 percent of the equity in the marital residence, as although she did not contribute monetarily to the residence’s acquisition and maintenance, she contributed nonmonetarily by cleaning the house and taking care of the horse stalls. Griffiths v. Griffiths, 2003 Va. Cir. LEXIS 61 (Loudoun County Apr. 16, 2003).

Where the parties were married for 25 years, and the husband was willing to relinquish his interest in the equity of the marital home to wife upon sale and satisfy the outstanding mortgage, same was equitable where the parties’ other property and assets, primarily vehicles, a 401K plan, and a timeshare, all awarded to the husband, were not great. Austin v. Austin, 2004 Va. Cir. LEXIS 302 (Richmond July 9, 2004).

The parties’ timeshare was granted to the wife along with spousal support and the husband was ordered to pay maintenance fees and spousal support. Johnson v. Johnson, 2004 Va. Cir. LEXIS 300 (Richmond Nov. 10, 2004).

Trial court ordered that each party was to be the owner of the property in his or her possession, as neither party provided adequate evidence upon which § 20-107.3 could have been properly implemented to divide their assets and liabilities, except for their jointly owned interest in real estate given to them by the wife’s parents, which was to be divided in a separate proceeding. Williams v. Williams, 2004 Va. Cir. LEXIS 306 (Spotsylvania County Dec. 10, 2004).

After a divorce was granted based on the husband’s adultery, and his refusal to testify as to the same could not be used against him, he was denied spousal support, pursuant to subsection B of § 20-107.1 ; he was ordered to pay the wife a monetary award under subsection D of § 20-107.3 , in light of the disparity in the value of the assets; and, the parties’ property was equitably divided. Toth v. Toth, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

Trial court considered the factors of subsection E of § 20-107.3 and made an equitable distribution of the marital property of a husband and wife because the trial court found that the husband maintained a sincere desire to keep the marriage intact and that the wife’s romantic involvement with another man was the major contributing factor to the downfall of the marriage. Ferramosca v. Ferramosca, 2008 Va. Cir. LEXIS 21 (Richmond Mar. 26, 2008).

As the trial court previously considered and assigned the value for the parties’ marital share of the equity in the marital home, it lacked statutory authority to modify that value because more than 21 days had passed and any such modification would violate the finality requirement of the court rules. Millner v. Millner, 97 Va. Cir. 88 (Hanover County 2012).

Modification of equitable distribution on reconsideration. —

Because a prior ruling detailing the equitable distribution of the marital property was incorrect, on reconsideration, the court created a formula to determine the husband’s share of the equity; it also granted him a reservation of spousal support equal to one half the length of the marriage. Hawthorn v. Hawthorn, 2005 Va. Cir. LEXIS 211 (Fairfax County Sept. 22, 2005).

Because a court considered interest in its calculation of the monetary award to a wife and the payment schedule, interest was not to accrue to the wife while the wife’s payment was pending. Under the same rationale, the wife’s request for an adjustment to the award to consider market gains was also denied as the court considered in its award determination that the market might increase or decrease by a reasonable amount. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

Classification of property. —

Commissioner’s award of an investment account to a husband was affirmed where the proceeds from the sale of his separate sailboat were traceable to that account; even though the wife’s name was on the account, there was no suggestion that this money was a gift to the wife. Bacon v. Bacon, 2003 Va. Cir. LEXIS 189 (Stafford County June 10, 2003).

Based upon the parties’ stipulation that the property at issue was part of the wife’s separate property and part marital property, that as to the marital share, each party owned one-half, and that the wife’s separate property was definable under § 20-107.3 , the court calculated the respective shares under the Brandenburg formula, awarding the wife $335,332, her separate share of plus one-half of the marital share, and the husband $152,275. Potter v. Potter, 2005 Va. Cir. LEXIS 115 (Fairfax County Aug. 4, 2005).

Wife’s separate property used toward the purchase of the marital home gave her an 11.666 percent separate interest; she also proved by tracing that $17,000 of the increased value of the home came directly from funds from her retirement account, of which 72 percent was her separate property, and, thus, 72 percent of the $17,000 increase, or $12,240, was also her separate property. The wife was allowed to buy the husband’s interest in the property by paying him one half of the marital equity or $31,335, and by releasing him from the existing deed of trust note. Vest v. Vest, 2007 Va. Cir. LEXIS 85 (Salem June 6, 2007).

Because no evidence of significance was presented that convinced the circuit court that the separate funds of a husband or a wife increased in value, the question of whether marital effort was expended in managing those funds so that hybrid property was created was moot as well as unproven. Gleason v. Gleason, 2009 Va. Cir. LEXIS 34 (Roanoke County Feb. 3, 2009).

Premarital equity in home. —

Where a husband had owned certain real property prior to the parties’ marriage, his original equity interest was properly traced to him pursuant to paragraph A 3 e of § 20-107.3 when the court divided the marital property. Garrett v. Garrett, 63 Va. Cir. 399, 2003 Va. Cir. LEXIS 216 (Fairfax County Nov. 13, 2003), aff'd, No. 0155-04-4, 2004 Va. App. LEXIS 513 (Va. Ct. App. Nov. 2, 2004).

Because a wife’s failure to tell her husband of her claim to a separate interest in the marital residence for the 16 years of their marriage amounted to fraud, she was estopped from claiming a separate interest in it; therefore, the entire parcel of real estate was deemed to be marital property. Caldwell v. Caldwell, 2007 Va. Cir. LEXIS 84 (Roanoke County June 12, 2007).

Separate property used for down payment on marital property. —

When a husband seeking equitable distribution of certain marital real property asserted that he had contributed a certain amount of separate property to purchase the marital property, he did not present documentary evidence supporting his claim, so the trial court could not find the property was traceable to his separate property by a preponderance of the evidence and § 20-107.3 A 3 d did not apply, but the husband was awarded 70 percent of the property’s equity under subsection E of § 20-107.3 .Guynup v. Stribling, 2001 Va. Cir. LEXIS 523 (Fauquier County June 18, 2001).

Property held separate. —

Husband’s interest in the stock of a closely held corporation was separate property where the stock was transferred to the husband from his father in 1982 and at that time, the wife signed a waiver of her interest in the business, and the name of the corporation was changed in 1991 and the wife again signed an agreement waiving her interest in the business; the wife claimed that she was unaware of the full consequences of the waiver and that it was signed unknowingly and without consideration. Tsui v. Shieh, 2006 Va. Cir. LEXIS 59 (Fairfax County Feb. 24, 2006).

Liquidated investment assets acquired before the marriage and kept separate were the husband’s separate property. Burchfield v. Burchfield, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 206 (Fairfax County June 3, 2019), modified, 103 Va. Cir. 447, 2019 Va. Cir. LEXIS 227 (Fairfax County July 1, 2019).

Property held not separate. —

Since the husband did not acquire the marital residence until after the parties were married, that property was presumed to be marital property even though the husband had executed a contract to purchase the marital residence before the parties married; because he did not rebut that presumption, the marital residence was classified as marital, not separate, property. Dastejerdi v. Dastejerdi, 2005 Va. Cir. LEXIS 79 (Loudoun County July 26, 2005).

Application to determining decedent’s augmented estate. —

Summary judgment was denied on the issue of whether real property, which was willed to the decedent and was titled in the decedent’s name only, was part of the decedent’s augmented estate from which his widow was entitled to take her elective share. There remained a question of fact as to whether the property was maintained by the decedent as separate property and thus excluded from the augmented estate under clause (ii) of subsection B of § 64.1-16.1 given that the widow claimed that she and the decedent operated the farm together and made significant contributions to the property’s upkeep; the widow was entitled to the opportunity to prove that at least part of the value of the real estate was attributable to the personal efforts of either party during the marriage or to contributions of marital property as described in subdivision A 1 of § 20-107.3 , which the trial court applied by analogy. Kibler v. Kibler, 60 Va. Cir. 266, 2002 Va. Cir. LEXIS 265 (Shenandoah County Oct. 24, 2002).

Both party’s contributions to family considered. —

Equal division of marital property that was not covered by an agreement between a husband and wife served the ends of justice because the husband and wife each made substantial monetary and nonmonetary contributions to both the family unit and to the marital estate; although a husband’s adultery contributed to the dissolution of the marriage, it had no impact on family finances or the marital property, nor did it amount to a “negative” nonmonetary contribution. Davis v. Davis, 2008 Va. Cir. LEXIS 50 (Madison County Apr. 21, 2008), aff'd, No. 1241-09-2, 2010 Va. App. LEXIS 26 (Va. Ct. App. Jan. 26, 2010).

It was hard to overstate the wife’s nonmonetary contributions to the well-being of the family from her gift of her health so that the parties could have children. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Husband’s negative non-monetary contribution offset by wife’s bankruptcy. —

After considering the factors set forth in subsection E of § 20-107.3 , the husband was awarded approximately 55 percent of the equity in the marital home, and the wife was awarded permanent spousal support where: (1) the husband earned between 75.8 and 85.7 percent of the parties income and almost all of the marital property was acquired using the husband’s earnings; (2) the marriage lasted 24 years; (3) the wife suffered from depression, adult attention deficit disorder, and a learning disability, but worked for most of the marriage and could be retrained as a medical receptionist, for which there were over 300 positions available in the area; (4) neither party alleged that the other was guilty of a fault ground for divorce; and (5) the husband’s negative non-monetary contribution due to the support of his illegitimate child was offset by the debts he remained obligated for after the wife discharged her obligations in her bankruptcy. Talley v. Talley, 2004 Va. Cir. LEXIS 8 (Loudoun County Jan. 22, 2004).

Where one party contributes substantially more to a marriage. —

Wife was awarded sole title to the marital home, the husband was ordered to pay the encumbrances on the home, and the wife was ordered to buy out the husband’s interest, after considering the subsection E factors, where the husband made financial decisions without consulting the wife, the husband’s actions primarily caused the marriage to fail, and the husband’s contributions to the marriage were considerably outweighed by the wife’s contributions. Tsui v. Shieh, 2006 Va. Cir. LEXIS 59 (Fairfax County Feb. 24, 2006).

Marital debts apportioned. —

Marital debts were apportioned under subsections C and E of § 20-107.3 by requiring the wife to be responsible for all post-separation credit card indebtedness, and for her separate indebtedness secured by the marital home, the husband was required to pay the pre-separation credit card debts, and the parties were equally responsible for the mental health professional’s bill; the wife was ordered to pay the post-pendente lite bills that she incurred and then sent to the husband to pay under subsection D of § 20-107.3 , and she was ordered to reimburse the husband for the video deposition that she left. Bonin v. Bonin, 2003 Va. Cir. LEXIS 181 (Fairfax County July 30, 2003).

Trial court had the authority to apportion the only debt the parties did not agree upon, which was the debt on one credit card, and the circumstances dictated that the wife be responsible for those charges on it that she agreed to pay; thereafter, the parties were directed to apportion the remaining debt equally between themselves. Henke v. Henke, 2005 Va. Cir. LEXIS 78 (Loudoun County June 30, 2005).

Denial of the husband’s request for a monetary award was appropriate because the debts incurred and paid off by the periodic refinancing of the marital home were for marital purposes, were agreed to and ratified by the husband, were valued as set forth in the various exhibits, and constituted marital debt, both at their inception and when paid off by each new debt incurred and secured by the marital residence. The deficiency debt occasioned by the sale of their marital residence was marital and was to be divided equally between the parties and all other debt was separate and was already in the name of the responsible party. Austin v. Austin, 2010 Va. Cir. LEXIS 60 (Roanoke County June 21, 2010).

Marital debt not apportioned. —

Where a husband, by a bankruptcy proceeding, paid off with his own funds approximately $35,000 in marital debt, the court found that it would have been inequitable to apportion any debt to husband. Schoofs v. Schoofs, 2005 Va. Cir. LEXIS 82 (Loudoun County July 1, 2005).

Husband’s medical expenses. —

As it was undisputed that a husband’s medical expenses in the amount of $7,482.84 were incurred after the parties had separated, these expenses were not marital debt and could not be apportioned under the equitable distribution statute. Duncan v. Duncan, 2006 Va. Cir. LEXIS 74 (Portsmouth June 14, 2006).

Effect of spouse’s bankruptcy. —

Where the husband had filed for bankruptcy relief and was within the statutory period to amend the bankruptcy to include any court ordered equitable distribution award of property, the court could not enter an equitably distributive monetary award pursuant to § 20-107.3 .Mossor v. Mossor, 2002 Va. Cir. LEXIS 322 (Roanoke Sept. 16, 2002).

Debt associated with marital residence. —

Husband ordered to assume any debt associated with the marital residence, including, without limitation, fees associated with the foreclosure because the parties acquired the marital residence with funds from the husband’s retirement account, and he was ordered to maintain the mortgage on the marital property. Giambalvo v. Giambalvo, 2018 Va. Cir. LEXIS 432 (Orange County Oct. 14, 2018).

Although it was generally true that the character of property at the date the property was acquired governed the property’s classification, that character could change, and did change, in regard to the husband’s home that the husband purchased in the husband’s name before the husband was married, as evidence that the property was refinanced several times, that the parties added to the house three times, and that both parties paid the mortgage throughout the marriage meant the home was marital property, not separate property. McCoy v. McCoy, 2003 Va. Cir. LEXIS 40 (Norfolk Apr. 11, 2003).

Equal distribution made. —

Trial court considered the factors enumerated in § 20-107.3 and divided the parties’ marital property equally where: (1) although the husband contributed more monetarily to the home and family, each party made significant monetary contributions; (2) each party also performed nonmonetary tasks that increased the family’s well-being; (3) each party made contributions towards the care and maintenance of the marital residence; (4) the parties were married for seven years and 10 months; and (5) the parties were in good health, with the exception of the husband’s chronic back pain and depression. Olympia v. Olympia, 2003 Va. Cir. LEXIS 75 (Fairfax County Apr. 22, 2003).

Equity was best served by dividing the marital assets and debts equally between a husband and wife because both parties contributed all of their earned income and some of their separate property to the well being of the family, the husband more so than the wife, and each contributed the majority of their spare time and effort to the marriage. Gleason v. Gleason, 2009 Va. Cir. LEXIS 34 (Roanoke County Feb. 3, 2009).

No presumption of equal distribution. —

Although there was no presumption favoring the equal distribution of property in Virginia, the trial court was not prohibited from making an equal distribution, and since both the husband and wife contributed similarly to the mortgage, maintenance, and upkeep of the marital home, the trial court ruled that the each party should be awarded 50 percent of the proceeds from the sale of the marital residence. Clouser v. Clouser, 2006 Va. Cir. LEXIS 178 (Fairfax County Sept. 8, 2006).

Distribution within discretion of court subject to statutory factors. —

In this divorce action, the court found that, after consideration of all the evidence, the statutory factors, and all the other circumstances, the best equitable distribution decision was none at all when: (1) the marital residence had a negative equity of $110,353.82; and (2) the wife had more liquid assets in her name, but she had incurred more debt post-separation than the husband had incurred. Reidy v. Reidy, 2009 Va. Cir. LEXIS 108 (Loudoun County Oct. 28, 2009).

Marital share of retirement benefits. —

Husband was not now eligible to retire, and thus the distribution of his retirement benefits was governed by subsection G; the wife was entitled to receive 35 percent of the marital share of the husband’s retirement, but she was the sole owner of her 401K plan and her stock from work. Proctor v. Proctor, 2004 Va. Cir. LEXIS 305 (Spotsylvania County Dec. 10, 2004).

Wife’s deferred savings plan and her personal pension plan were retirement benefits. Marital funds were contributed to those accounts during the marriage; therefore, under subdivisions A 2 and G 1 of § 20-107.3 , each account contained a marital share. Pierce v. Carter, 2011 Va. Cir. LEXIS 200 (Greene County Jan. 20, 2011).

In a divorce case, the court concluded the wife was entitled to a 50% share of the husband’s Virginia Retirement System pension and 403(b) plan from the date of marriage to the 2014 separation date. The court further concluded that the husband was entitled to a 50% share of the wife’s IRA from the date of marriage to the 2014 date of separation. Schmidtke v. Schmidtke, 2018 Va. Cir. LEXIS 431 (Orange County Oct. 13, 2018).

Stipulated share of retirement account. —

Wife was entitled to the full amount disbursed to her through a husband’s retirement account because the husband chose to stipulate an amount regarding the account, and the language of the original decree of divorce was clear in its intended division of the account when it included the stipulated amount to be delivered to the wife; with an actual dollar amount stipulated, the circuit court had no basis to declare what the intent of the court issuing the divorce decree was beyond a plain reading of the order, and it read the decree as designating that a specific dollar amount was due and would be paid to the wife. Cragg v. Cragg, 2009 Va. Cir. LEXIS 49 (Fairfax County July 14, 2009), aff'd, No. 1853-09-4, 2010 Va. App. LEXIS 133 (Va. Ct. App. Apr. 6, 2010).

Share of pension benefits. —

Wife’s motion to enforce a separation and property settlement agreement was denied because it was within the reasonable contemplation of the husband and the wife at the time of the execution of the agreement that only the husband’s earned pension benefits acquired as a result of his employment and payable by a plan in esse would be due the wife upon his retirement since nothing in the agreement suggested that the parties contemplated future benefits would accrue to the husband through the Virginia Retirement System as a result of his years of service during the marriage; the retirement benefits related to an identifiable property interest in juxtaposition to a mere expectancy, and it was the existence of the retirement pension resulting from the husband’s employment and not the years of service used to determine the benefit to be received that was the object of the agreement and embraced within the contemplated retirement benefits through his employment. Roth v. Roth, 80 Va. Cir. 344, 2010 Va. Cir. LEXIS 63 (Loudoun County Apr. 30, 2010), aff'd, No. 1332-10-4, 2011 Va. App. LEXIS 71 (Va. Ct. App. Mar. 1, 2011).

Wife’s motion for a court order acceptable for processing was denied because the language used in a separation and property settlement agreement did not support the wife’s contention that she was entitled to 50 percent of the husband’s unreduced retirement benefit; the plain meaning of the agreement was that the wife had a legal right to fifty percent of the part of the pension that came into the husband’s possession of, i.e., that he had actually received. Rinehart v. Rinehart, 2016 Va. Cir. LEXIS 159 (Fairfax County Sept. 27, 2016).

Marital share of pension. —

Wife failed to prove that a husband’s pensions were marital property as she failed to offer proof of the marital share in order for the trial court to calculate an award under the deferred distribution approach and she failed to offer evidence of the present value of the marital share to satisfy the immediate offset approach. Smith v. Smith, 2005 Va. Cir. LEXIS 271 (Nelson County Dec. 20, 2005).

Wife’s proposed qualified domestic relations order, which included cost of living increases for the wife, was proper and was adopted because, while neither the agreement nor the final decree contained cost of living increase language, the final decree provided that the wife was to receive a portion of the husband’s “lifetime retirement benefits”; such cost of living increases were part of the husband’s “lifetime retirement benefits.” Fisher v. Fisher, 2007 Va. Cir. LEXIS 35 (Fairfax County Mar. 20, 2007).

Since a husband failed to present any proof of value for his wife’s personal pension plan or her deferred savings plan, the only potential relief that remained available to the husband was a percentage award of the marital share of the personal pension plan payment, which was currently being made to the wife. The court awarded the husband one-half of the marital share of the pension plan that had already vested, but it declined to award any portion of the marital share of the wife’s deferred savings plan. Pierce v. Carter, 2011 Va. Cir. LEXIS 200 (Greene County Jan. 20, 2011).

Pension and retirement benefits divided evenly. —

In divorce proceedings, the property was distributed pursuant to the factors set forth in § 20-107.3 ; both parties contributed significantly to the marriage, and the wife failed to prove dissipation. Each party was awarded a marital residence; further, because each party relied on other’s pensions as security for their retirement years and the pensions were created during the marriage, the pensions and retirement funds were divided equally between the parties. Kierce v. Kierce, 2007 Va. Cir. LEXIS 164 (Fairfax County Aug. 23, 2007).

401(k) separate property after separation. —

Husband’s 401(k) was separate property in the amount it accrued after the separation of the parties. Karim v. Karim Equitable Distrib., 2006 Va. Cir. LEXIS 216 (Fairfax County Oct. 3, 2006).

Classification of IRAs. —

When it was not shown that any contributions were made to the individual retirement accounts owned, respectively, by a husband and a wife during their marriage, the accounts were not treated as marital property and were not divided among the parties. Selleh v. Young, 2007 Va. Cir. LEXIS 38 (Fairfax County Mar. 21, 2007).

Husband’s individual retirement account was deemed separate property because it was established before the marriage and, even if some additional contributions were made after the marriage, they would have been transmuted to separate assets. Ricciardi v. Ricciardi, 2015 Va. Cir. LEXIS 177 (Charlottesville Dec. 3, 2015).

Jurisdiction over military retirement. —

Although a court had in personam jurisdiction over a husband, it did not have jurisdiction over the husband’s military retirement under 10 U.S.C.S. § 1408(c)(4) because he was a resident of Pennsylvania, only lived in Virginia because of a military assignment, and did not consent to jurisdiction. Kroft v. Kroft, 64 Va. Cir. 156, 2004 Va. Cir. LEXIS 32 (Fairfax County Mar. 1, 2004).

Because all of the marital assets were titled in the husband’s name, the court could not allocate them to the wife. However, pursuant to subdivision G 1, the husband was required to assign to the wife $8,000 in lieu of assigning her an interest in his retirement accounts. Abraham v. Bereketab, 2004 Va. Cir. LEXIS 64 (Fairfax County Mar. 31, 2004).

Division of military retirement pay. —

Wife was awarded 25 percent of her husband’s military retirement pay as the parties were married for 13 years, with long absences and brief periods together, the wife had health concerns due to her weight, and the wife’s weight was the cause of the husband’s dissatisfaction with the marriage. Bullock v. Bullock, 2004 Va. Cir. LEXIS 299 (Richmond Aug. 23, 2004).

Parties liable for own income taxes but immediately taxable distributions not required. —

Husband’s two retirement plan account balances of $25,054 and $22,456 were marital property and were divided equally between him and wife after allocating the first $6,670 to him and a credit card debt to him; the parties were responsible for taxes on the plan distributions and the husband could keep the $6,670 in the plan if he closed the credit card such that the wife was no longer liable on that credit card. Paris v. Paris, 2005 Va. Cir. LEXIS 63 (Roanoke June 14, 2005).

Valuation of medical practice. —

Where the parties’ experts each failed to properly credit the husband’s medical practice with its intrinsic value, and where neither party set a value for the practice’s industrial goodwill, the parties failed to meet their burden of providing the court with evidence of the practice’s intrinsic value. The court was forced to calculate an intrinsic value for the husband’s practice without including any goodwill value for the business; the court then divided that value evenly between the parties since that was what the parties agreed to in a stipulation. Bo Yun Kim v. Choe, 65 Va. Cir. 349, 2004 Va. Cir. LEXIS 212 (Fairfax County Aug. 11, 2004).

Valuation of law practice. —

In a divorce between parties who had a 33-year marriage, in which both of them had contributed equally to the family’s welfare, the value of the husband’s interest in his two-partner law firm was determined when the court took half the value of the assets that the firm had reported on a recent tax return because none of the normal indicia of a firm’s value had been introduced, including evidence of the value of the firm’s material assets, its prior earning record, its accounts receivable or accounts payable, or any debt that it may have acquired. The value of the $250,000 life insurance policy that the firm held on the husband’s life was not determinative of the value of his interest in the firm, although it was some minor evidence of said value. Smigrod v. Dingman, 2004 Va. Cir. LEXIS 374 (Alexandria Apr. 14, 2004).

Husband’s real estate investments considered. —

Husband created, controlled, and managed an impressive real estate investment empire and he made all the monetary contributions for the well-being of the family; despite not being required to by the premarital agreement, he gave the wife joint ownership of a remarkable home worth $ 20 million and almost $ 1 million in jewelry. The court considered this in dividing the parties’ assets. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Company and underling property was titled in the husband’s name and was his separate property; the 2014 Joint Financial Statement, which nominally listed the company as a joint asset, did not accurately reflect the true ownership, as that statement focused on value, not legal title, and corporate records more accurately reported true ownership. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Court found the intrinsic value of husband’s separate assets to be over $192 million; the husband’s expert relied on appraisals, and given the pandemic and regulations limiting residential evictions, these could affect the tenants of husband’s apartments. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Court was persuaded by the husband and found the value of the company to be zero; he was a co-owner and manager and the more active owner, plus he testified to obtaining his former partners’ shares through a buy-sell agreement for nothing, showing that at least two people who knew the business well forfeited their interest for nothing, and the husband had tried to sell his interest without success. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Marital business. —

Based on the limited evidence on the issue, the court found a business formed April 23, 2014, long after the marriage began, and thus the husband had the burden of proving that the company was titled in his name to claim it as separate property; he had no evidence that a transfer to the wife never perfected, and thus the court found ownership in the company to be jointly titled to the husband and wife. Dwoskin v. Dwoskin, 2020 Va. Cir. LEXIS 494 (Fairfax County Dec. 30, 2020).

Student loan debt. —

Husband was ordered to pay his student loan debt in full, the same as if it were his separate debt, with no portion being paid by the wife, because the husband’s student loan was marital property pursuant to § 20-107.3 ; although testimony was presented that a portion of the student loan was used directly for family living expenses, no evidence was presented as to what portion of the loan was spent for those expenses. Korku Damankah v. Katasha Spurlin Damankah, 2011 Va. Cir. LEXIS 82 (Salem July 5, 2011).

Value of non-compete agreement. —

Trial court ruled that the husband’s buy-out of a non-compete agreement, and the resulting right to compete against his former employer, was a valuable contract right that should be characterized as “hybrid property” for purposes of the husband and wife’s distribution of property in their divorce proceeding; the evidence showed that the property was subject to valuation and equitable distribution because part of the funds used to make the buy-out were marital funds and part of the funds were separate property funds. Mohammed v. Williams, 67 Va. Cir. 196, 2005 Va. Cir. LEXIS 162 (Roanoke County Apr. 22, 2005).

Economic impact of gambling problem could not be quantified. —

Economic impact of a wife’s gambling problem could not be quantified for equitable distribution purposes where there was no evidence of how much income each party brought into the marriage during the wife’s gambling years; there was no evidence of how much debt was incurred each year as a result of the wife’s gambling; and, while there was evidence of the percentage of the charges on certain credit cards for gambling, there was no evidence of the amount of such charges. Burcham v. Burcham, 2010 Va. Cir. LEXIS 3 (Loudoun County Jan. 25, 2010).

Burden to present evidence of valuation. —

Husband failed to rebut the marital property presumption for property with regard to his partnership interests in two business entities by asserting that the interests should have a marital component similar to the marital share of a retirement benefit since the entities became valuable only after the parties separated. The court found that the husband offered no evidence of any increase in value due to his post-separation work and his proposed marital-separate property division was not based on the amount of work done by the husband over any given period of time. Mooney v. Mooney, 2005 Va. Cir. LEXIS 80 (Loudoun County Apr. 26, 2005).

Spouse held in contempt for violating stipulation incorporated into decree. —

Trial court found a former husband in contempt because he willfully failed to comply with its order to pay his former wife 50 percent of the proceeds from the sale of real property, as required by the parties’ stipulation that was incorporated into the divorce decree, and he failed to meet his burden to show that his noncompliance was other than willful, or that he was unable to comply with the order. Hartley v. Hartley, 91 Va. Cir. 277, 2015 Va. Cir. LEXIS 141 (Norfolk Oct. 9, 2015).

Attorney fees. —

Husband and wife were ordered to bear their own attorney fees because both parties incurred significant attorney fees with experienced and capable counsel. Windsor v. Windsor, 2019 Va. Cir. LEXIS 439 (Madison County Sept. 6, 2019).

No consideration of husband’s retirement. —

OPINIONS OF THE ATTORNEY GENERAL

Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

§ 20-108. Revision and alteration of such decrees.

The court may, from time to time after decreeing as provided in § 20-107.2 , on petition of either of the parents, or on its own motion or upon petition of any probation officer or the Department of Social Services, which petition shall set forth the reasons for the relief sought, revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require. The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.

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.

Any member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof, who files a petition or is a party to a petition requesting the adjudication of the custody, visitation or support of a child based on a change of circumstances due to one of the parent’s deployment, as that term is defined in § 20-124.7 , shall be entitled to have such a petition expedited on the docket of the court.

History. Code 1919, § 5111; 1926, p. 105; 1927, p. 184; 1934, p. 515; 1938, p. 784; 1944, p. 397; 1948, p. 593; 1986, c. 537; 1987, c. 649; 1991, c. 438; 2002, c. 747; 2004, c. 204; 2006, c. 371; 2011, c. 351.

Cross references.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, substituted “the Department of Social Services” for “superintendent of public welfare” in the first sentence.

The 2004 amendments.

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

The 2006 amendments.

The 2006 amendment by c. 371 added the last paragraph.

The 2011 amendments.

The 2011 amendment by c. 351 substituted “Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof, who files a petition or is a party to a petition requesting the adjudication of the custody, visitation or support of a child based on a change of circumstances due to one of the parent’s deployment, as that term is defined in § 20-124.7 ” for “Armed Forces Reserves, Virginia National Guard, or Virginia National Guard Reserves, who files a petition or is a party to a petition requesting the adjudication of the custody, visitation or support of a child based on a change of circumstances because one of the parents has been called to active duty” in the third paragraph.

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 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 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 article on modification of agreement-based custody decrees, see 68 Va. L. Rev. 1263 (1982).

For comment, “The Enforceability of Arbitration Clauses in Virginia Marital Separation Agreements,” see 19 U. Rich. L. Rev. 333 (1985).

For note, “Homosexuality and the Custodial Parent in Virginia — The Effects of Roe v. Roe,” see 8 Geo. Mason U.L. Rev. 389 (1986).

For article, “Legal Issues Involving Children,” see 26 U. Rich. L. Rev. 797 (1992).

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

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

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, §§ 35, 46, 53, 57, 58, 58.2, 79.

CASE NOTES

Analysis

I. General Consideration.
II. Custody.
III. Support.

I.General Consideration.

This section expressly gives the court the continuing jurisdiction to change or modify its decree as to the custody and maintenance of minor children. Kern v. Lindsey, 182 Va. 775 , 30 S.E.2d 707, 1944 Va. LEXIS 232 (1944) (see Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417 (1952); DeMott v. DeMott, 198 Va. 22 , 92 S.E.2d 342 (1956); Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20 (1975)).

The trial judge may, from time to time, on petition of either of the parents, or upon its own motion, revise and alter its decrees concerning the care, custody, and maintenance of children and make a new decree concerning such matters as the circumstances of the parents and the benefit of the children may require. Orms v. Orms, No. 1407-86-4 (Ct. of Appeals Feb. 10, 1988).

A trial court has continuing jurisdiction to modify child and spousal support upon finding that a material change in circumstances warrants modification. Deane v. Deane, No. 2347-98-2 (Ct. of Appeals July 20, 1999).

Because the trial court incorporated the parties’ marital agreement into the final decree of divorce, it was subject to modification. Potas v. Potas, 2017 Va. App. LEXIS 339 (Va. Ct. App. Dec. 27, 2017).

Trial court’s discretion as to effective date. —

The legislature’s use of the word “may” in this section indicates that the decision whether to make a modification effective as of the date of notice of the petition to the opposing party rests within the discretion of the trial court. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Effective date of modification. —

Trial court had the authority, pursuant to § 20-108 , to modify a child support order on the father’s motion. However, it erred in modifying the support order retroactive to the date when the petition was filed because the mother was not given notice of the motion until over eight months later. The effective date of the modification should have been no earlier than the date the mother was given notice. Barrett v. Commonwealth, 2011 Va. App. LEXIS 246 (Va. Ct. App. July 26, 2011).

Effect of custody change on support. —

Nothing in this section authorizes an automatic termination of support upon change in custody. Baldwin v. Commonwealth, Dep’t of Social Servs. ex rel. Martin, No. 2122-96-3 (Ct. of Appeals Apr. 15, 1997).

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) of § 20-79 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).

Court’s authority. —

By granting the father sole discretion to consent to supervised visitation between the mother and the children with a supervisor of the father’s choice if the father believed that the mother was appropriate and would not cause harm to the children, the trial court abdicated its statutory power, and duty, to determine visitation. The trial court also limited its own ability to provide for modification of the decree if the father were to withhold visitation, as the father arguably could not withhold something that was in his sole discretion to give. Rainey v. Rainey, 2022 Va. App. LEXIS 56 (Va. Ct. App. Mar. 8, 2022).

Contract between parents cannot prevent court from exercising power. —

A contract between the husband and wife cannot prevent the court from exercising power under this section. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

The emancipation of a child does not constitute an exception to Virginia’s decisional law that precludes the court from ordering modification of support prospectively and without its approval. When an undivided child support award has been made for multiple minor children, the emancipation of a child, except the last remaining in custody, thus does not permit automatic termination or modification of support. Shoup v. Shoup, 34 Va. App. 347, 542 S.E.2d 9, 2001 Va. App. LEXIS 88 , different results reached on reh'g, 37 Va. App. 240, 556 S.E.2d 783, 2001 Va. App. LEXIS 704 (2001).

This power cannot be taken away by a contract made between their parents; nor can it be rendered nugatory by the device of making only a single provision for the support and maintenance of the wife and child, without definition of their several rights. Gloth v. Gloth, 154 Va. 511 , 153 S.E. 879 , 1930 Va. LEXIS 232 (1930).

This section gives the divorce court continuing jurisdiction to change or modify its decree concerning the custody and maintenance of minor children, and a contract between husband and wife cannot prevent the court from exercising this power. Featherstone v. Brooks, 220 Va. 443 , 258 S.E.2d 513, 1979 Va. LEXIS 279 (1979).

Court’s power to modify its decree with respect to the custody and maintenance of minor children is unaffected by any contract entered into between husband and wife. Neither ratification nor incorporation of such a contract by the divorce decree affects the court’s continuing jurisdiction in this regard. Edwards v. Lowry, 232 Va. 110 , 348 S.E.2d 259, 3 Va. Law Rep. 567, 1986 Va. LEXIS 235 (1986).

Matters of child custody, like matters of child support, may not be removed from control of trial court by agreement of parties. Ingram v. Ingram, No. 1966-98-2 (Ct. of Appeals Sept. 14, 1999).

A divorce court retains continuing jurisdiction, after a final decree of divorce has been entered, to modify its decree with respect to the maintenance of minor children, and this power to modify child support is not affected by the prior act of affirming, ratifying and incorporating into the divorce decree a child support agreement between the husband and wife. Goldin v. Goldin, 34 Va. App. 95, 538 S.E.2d 326, 2000 Va. App. LEXIS 797 (2000).

Because the best interest of the child is the paramount and guiding principle in setting child support, the need for court approval of agreements reached by the parties to modify the amount of support to be paid has neither been eliminated from the paradigm established for determination of child support, nor has it been subordinated to contract principles or public policy considerations in favor of the resolution of disputes by the parties themselves. Riggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320, 2000 Va. App. LEXIS 798 (2000), aff'd, 263 Va. 444 , 559 S.E.2d 673, 2002 Va. LEXIS 31 (2002).

The parties cannot contractually modify the terms of a support order without the court’s approval. Riggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320, 2000 Va. App. LEXIS 798 (2000), aff'd, 263 Va. 444 , 559 S.E.2d 673, 2002 Va. LEXIS 31 (2002).

Construction with subsection C of § 20-109 . —

By its own terms, subsection C of § 20-109 applies only to awards for spousal support or similar awards, and it does not apply to child custody; unlike subsection C of § 20-109 , § 20-108 specifically addresses child custody, and it specifically authorizes trial courts to modify child custody orders when there is a material change in circumstances. Khakee v. Rodenberger, 2020 Va. App. LEXIS 50 (Va. Ct. App. Feb. 25, 2020).

Chancellor not required to adopt plan proposed by either parent. —

Once the issue of the appropriate custody or visitation plan for a child is before the court, the court is not required to adopt either parent’s suggested remedy; the need to fashion complete justice on the facts presented is the role of the chancellor, and to limit a chancellor’s remedy to only the custody arrangement requested by one of the parents would unduly restrict his or her options and allow a parent to circumvent the statutory obligation of the chancellor to determine custody based only upon the best interests of the child. Cloutier v. Queen, 35 Va. App. 413, 545 S.E.2d 574, 2001 Va. App. LEXIS 240 (2001).

Court’s authority to enter contempt order. —

Circuit court did not lack authority to enter a contempt order because the parties’ settlement agreement only provided for a one-year award of spousal and child support to the wife, which was non-modifiable during its term but explicitly did not prejudice the husband’s ability to later seek child support, and the court possessed statutory authority to subsequently modify the parties’ child support arrangements. Khakee v. Rodenberger, 2019 Va. App. LEXIS 195 (Va. Ct. App. Aug. 27, 2019).

Court has authority when one or both parties of divorce die. —

The Virginia statutes give the court ample authority to deal with matters of custody and support if one or both of the parties to the divorce suit should die. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952); Judd v. Van Horn, 195 Va. 988 , 81 S.E.2d 432, 1954 Va. LEXIS 176 (1954).

Habeas corpus from another court. —

The exclusive and continuing jurisdiction of the court granting the divorce precludes another court of like jurisdiction from changing by writ of habeas corpus the custody previously adjudicated. Williams v. Woolfolk, 188 Va. 312 , 49 S.E.2d 270, 1948 Va. LEXIS 166 (1948).

This section is designed to operate prospectively and relates to future provisions for support. Cofer v. Cofer, 205 Va. 834 , 140 S.E.2d 663, 1965 Va. LEXIS 141 (1965), overruled in part, Singh v. Mooney, 261 Va. 48 , 541 S.E.2d 549, 2001 Va. LEXIS 2 (2001).

A trial court only has authority to modify child and spousal support prospectively from date of filing of petition for modification. Deane v. Deane, No. 2347-98-2 (Ct. of Appeals July 20, 1999).

Under Virginia law, the court cannot order prospective modification of child support upon the occurrence of a future event. Shoup v. Shoup, 34 Va. App. 347, 542 S.E.2d 9, 2001 Va. App. LEXIS 88 , different results reached on reh'g, 37 Va. App. 240, 556 S.E.2d 783, 2001 Va. App. LEXIS 704 (2001).

Decree incorporating agreement providing for automatic modification void. —

A decree that incorporates an agreement permitting automatic, unilateral, or agreed upon modification of support without prior court approval is a legal nullity and void. Shoup v. Shoup, 34 Va. App. 347, 542 S.E.2d 9, 2001 Va. App. LEXIS 88 , different results reached on reh'g, 37 Va. App. 240, 556 S.E.2d 783, 2001 Va. App. LEXIS 704 (2001).

General language from a court’s decree altering a previous separation agreement “until further order of the court,” did not evince an intention by the trial judge to supersede other specific provisions from a former decree unless they are necessarily affected by the amendments. Schmidt v. Schmidt, 6 Va. App. 501, 370 S.E.2d 311, 5 Va. Law Rep. 25, 1988 Va. App. LEXIS 69 (1988).

Unless decree supplants provisions of former decree both decrees will be enforced. —

Where the court’s decree does not expressly or by necessity supplant the provisions of the former decree incorporating the agreement or where the two are not incompatible, the valid provisions of both decrees will be enforced. Schmidt v. Schmidt, 6 Va. App. 501, 370 S.E.2d 311, 5 Va. Law Rep. 25, 1988 Va. App. LEXIS 69 (1988).

Consideration of background information where different judge hears later petition. —

Where a different trial judge is called upon to consider the evidence in support of and in opposition to a subsequent custody petition, consideration of evidence which establishes background information and permits the trial judge to understand the alleged change in circumstances is permissible. Such evidence, however, is not to be used to retry the issues resolved in the prior proceedings. Turner v. Turner, 3 Va. App. 31, 348 S.E.2d 21, 3 Va. Law Rep. 375, 1986 Va. App. LEXIS 331 (1986).

Ordering payments directly to creditors invalid. —

Prior removal of case from active docket. —

The court’s authority to alter a previous decree and enter a new decree is unaffected by the court’s prior removal of the case from its active docket. Scott v. Rutherfoord, 30 Va. App. 176, 516 S.E.2d 225, 1999 Va. App. LEXIS 419 (1999).

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) of § 20-79 . 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).

Jurisdiction to modify child support. —

Where mother did not file her petition for the modification of her child support obligation until five years after she had notice of the circuit court’s motion to revise its support order, the circuit court did not have jurisdiction to modify her support obligation to any time prior to the date she filed the petition. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

Invited error. —

Laches defense unavailing. —

That a hearing on a mother’s petition to increase child support was not held until over four years after she filed it and served it on the father did not support his affirmative defense of laches. The mother asserted her rights by filing and serving the petition, she did not abandon her claim, and as no evidence was lost while the petition was pending, the father was not prejudiced by the delay. Stiles v. Stiles, 48 Va. App. 449, 632 S.E.2d 607, 2006 Va. App. LEXIS 342 (2006).

Modification of medical decision making authority upheld. —

In a case where the trial court granted the mother the sole right to select the child’s pediatrician, even though she did not specifically request that, because the relief requested was consistent with the allegations in the petition and the arguments made at trial, and because the trial court had clear authority under § 20-108 to modify a custody decree when it deemed it to be in the best interests of the child. D'Ambrosio v. D'Ambrosio, 45 Va. App. 323, 610 S.E.2d 876, 2005 Va. App. LEXIS 122 (2005).

Ruling as to which school the child would attend. —

Contrary to a father’s appellate argument, a trial court’s post-decree ruling directing which school the parties’ child would attend was not a sanction based on contempt of the custody order, but arose from the trial court’s authority under § 20-108 ; the trial court ruled based on the child’s best interests, as required under the statute. Armstrong v. Hoover, 2006 Va. App. LEXIS 147 (Va. Ct. App. Apr. 11, 2006).

Petition for determination of paternity barred by res judicata. —

Circuit court did not err in dismissing a mother’s petition against 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 district 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).

II.Custody.

Best interests of children control the issue of a change of custody or the issue of a custodial parent moving the children to another state. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

In deciding whether to modify a custody order, the trial court’s paramount concern must be the children’s best interests, and the court has broad discretion in determining what promotes those interests. Heretick v. Cintron, 2001 Va. App. LEXIS 172 (Va. Ct. App. Apr. 3, 2001).

Trial court erred in finding that the husband was required to prove by clear and convincing evidence that actual harm would come to the child if he was denied custody and visitation and, thus, that it had no obligation under the constitutional principle of substantive due process to apply the “best interests of the child” test; since the modification of an existing, valid custody order was involved, the party seeking the modification, the biological mother, had the burden of proving both that a material change in circumstances had occurred since the entry of the initial order and that a change in custody would be in the best interests of the child. Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865, 2005 Va. App. LEXIS 225 (2005).

Two-part test. —

In determining whether a change in custody is warranted, the trial court applies a two-part test: (1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child. Hughes v. Gentry, 18 Va. App. 318, 443 S.E.2d 448 (1994); Burgan v. Zein, No. 0720-98-4 (Ct. of Appeals May 4, 1999).

The “change in circumstances” that must be established to justify modification of a custody order is not limited to whether negative events have arisen at the home of the custodial parent; it is broad enough to include changes involving the children themselves, such as their maturity, their special educational needs, and any of a myriad of changes that might exist as to them, and is also broad enough to include positive changes in the circumstances of the non-custodial parent, such as remarriage and the creation of a stable home environment, increased ability to provide emotional and financial support for the children, and other such changes. Heretick v. Cintron, 2001 Va. App. LEXIS 172 (Va. Ct. App. Apr. 3, 2001).

Court must balance interests. —

Questions of custody and removal from the noncustodial parent’s state of residency involve a balancing of interests. More often than not there are advantages and detriments on both sides of the issue. A trial court’s role is to weigh those concerns and conscientiously seek the solution that serves the best interests of the children. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

Circumstances of both parties. —

Pursuant to this section, the circumstances of both parties, as well as the benefit of the children, are subjects for the court’s evaluation. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Child’s entry into school. —

Father’s motion to modify custody and visitation was properly denied because the circumstances relating to the child’s primary physical residence and the child’s expected entry into school had not changed, because the parties signed the agreement knowing the mother had moved and knowing the child would start school while living with the mother; however, a modification of the father’s visitation schedule was warranted because of the child’s entry into school and the location of the parents’ residences. Mastoras v. Mastoras, 2008 Va. App. LEXIS 280 (Va. Ct. App. June 10, 2008).

Remarriage of noncustodial parent in a particular case could be a negative as well as a positive factor in determining the best interests of a child. Turner v. Turner, 3 Va. App. 31, 348 S.E.2d 21, 3 Va. Law Rep. 375, 1986 Va. App. LEXIS 331 (1986).

Expert testimony as to child’s psychological needs as basis for custody transfer. —

Transfer of custody of eight-year-old female with above average intelligence to mother, with liberal visitation rights granted to father, was supported by the record where the parents were both fit, both loving, and both able to provide shelter and the ordinary needs of the child, but the child desired to live with her mother and there was expert testimony as to her psychological need to do so. Turner v. Turner, 3 Va. App. 31, 348 S.E.2d 21, 3 Va. Law Rep. 375, 1986 Va. App. LEXIS 331 (1986).

Reliance on report of expert. —

Transfer of custody to mother was in children’s best interests, based on father’s lack of involvement in their education and his refusal to enroll in “Children of Divorce” seminar as directed by court. Schoonover v. Schoonover, No. 0554-99-3 (Ct. of Appeals Sept. 7, 1999).

Parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances and that the change in custody is appropriate for the welfare of the children; a father met his burden of showing three material changes in circumstances by clear and convincing evidence warranting review of the custody of his four children, including two non-biological children, by the evidence of the wife’s admission to hitting one of the children, the disclosure of prior physical abuse made in various proceedings since the original custody issue was heard by any court, and the fact that the children had been living with the father for more than one year. Cooner v. Cooner, 2004 Va. App. LEXIS 179 (Va. Ct. App. Apr. 20, 2004).

Award of custody to parent who carries on homosexual relationship in residence improper. —

Court had the authority to modify agreements in part or to supplant them altogether, as the best interests of the children would dictate. Schmidt v. Schmidt, 6 Va. App. 501, 370 S.E.2d 311, 5 Va. Law Rep. 25, 1988 Va. App. LEXIS 69 (1988).

Jurisdiction to alter decree may not be used to punish parent. —

The court has jurisdiction to alter its previous determinations of custody and visitation. However, the exercise of this jurisdiction is predicated upon the child’s best interest. It may not be used to punish a parent. M.E.D. v. J.P.M., 3 Va. App. 391, 350 S.E.2d 215, 3 Va. Law Rep. 1128, 1986 Va. App. LEXIS 374 (1986).

Decree is not an adjudication that parent not receiving custody is unfit. —

A divorce decree is not an adjudication that the parent not receiving the custody of a child is an unfit person to have its custody and does not amount to a severance of the parent and child relationship. Judd v. Van Horn, 195 Va. 988 , 81 S.E.2d 432, 1954 Va. LEXIS 176 (1954).

Burden of proof. —

The parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award. Hughes v. Gentry, 18 Va. App. 318, 443 S.E.2d 448, 10 Va. Law Rep. 1332, 1994 Va. App. LEXIS 258 (1994).

Where a court order provided for temporary placement of the children with their maternal grandmother, the father, when he later instituted a proceeding for custody, was not clothed with the parental presumption generally accorded natural parents in a dispute with nonparents, and the burden was upon him to prove that circumstances had so changed since the order that it would be in the children’s best interests to transfer custody to him. McEntire v. Redfearn, 217 Va. 313 , 227 S.E.2d 741, 1976 Va. LEXIS 278 (1976).

Where the unchallenged order of a juvenile court remains in effect, the burden is on a parent who seeks to change the custody to show that circumstances have so changed that the best interests of the child require the transfer. Harper v. Harper, 217 Va. 477 , 229 S.E.2d 875, 1976 Va. LEXIS 307 (1976).

Where the mother appealed the award of custody made by the juvenile court and proceeded to seek custody of the son in the same trial court in the chancery cause in which she sought a divorce, under these circumstances, the only burden on the mother as the moving party was to show that she was a fit parent and that, since the father was also fit, other things were equal between them. Harper v. Harper, 217 Va. 477 , 229 S.E.2d 875, 1976 Va. LEXIS 307 (1976).

Where the mother’s parental custody rights were previously altered by court order, for her to be entitled to a later change in custody, the burden was upon her to show the circumstances had so changed since entry of the previous order that it would be in the child’s best interest to transfer custody to her; the burden was not upon the paternal aunt to show parental unfitness. Watson v. Shepard, 217 Va. 538 , 229 S.E.2d 897, 1976 Va. LEXIS 318 (1976).

The moving party bears the burden of proof when asking the court to modify a decree to allow removal of a child from the state. Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319, 1996 Va. App. LEXIS 729 (1996).

As party seeking to modify visitation, mother bore burden to prove that a change of circumstances occurred and that a change in visitation would be in the best interests of the child. Zampolin v. Hicks, No. 1647-99-2 (Ct. of Appeals Dec. 28, 1999).

Trial court did not err by denying the father’s motion to reconsider the custody award because he provided no additional evidence of changed circumstances justifying a custody modification other than what the trial judge knew and considered when he then ruled on the issue of child custody. Sizov v. Sizov, 2020 Va. App. LEXIS 299 (Va. Ct. App. Dec. 8, 2020).

Burden to show changed circumstances so as to justify transfer of custody not sustained. —

See Watson v. Shepard, 217 Va. 538 , 229 S.E.2d 897, 1976 Va. LEXIS 318 (1976).

Effect of change of domicile to another state. —

Under this section, empowering a court, after decreeing a divorce, to alter such decree concerning the custody of the children, the power of the court to modify the decree is not affected by a removal of the child from the jurisdiction by the parent to whom its custody was awarded, or by the fact that such parent and the child have changed their domicile to another state. Kern v. Lindsey, 182 Va. 775 , 30 S.E.2d 707, 1944 Va. LEXIS 232 (1944).

In a controversy between a divorced couple over the custody of their son, appellant contended that both she and the child were residents and citizens of, and domiciled in, the State of Florida, and that, therefore, the Virginia court had no jurisdiction of them and no power or authority to enter a decree affecting her custody of the child. It was held that, so far as the custody and control of the child were concerned, under this section, the jurisdiction of the Virginia court continued, notwithstanding the fact that both appellant and the child had removed to and lived in another state for a number of years. Kern v. Lindsey, 182 Va. 775 , 30 S.E.2d 707, 1944 Va. LEXIS 232 (1944).

Jurisdiction continues even where children removed from Virginia. —

Even though the children have been removed from Virginia, the trial court has continuing jurisdiction to change or modify its decree as to their custody. Middleton v. Middleton, 227 Va. 82 , 314 S.E.2d 362, 1984 Va. LEXIS 271 (1984).

To modify a decree denying a custodial parent permission to remove the child from the state, the court must find a material change of circumstance since the initial decree, and that relocation would be in the child’s best interests. Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319, 1996 Va. App. LEXIS 729 (1996).

Removal of children from Commonwealth. —

It is not the law in Virginia that a custodial parent seeking permission to remove children from the Commonwealth must establish: (1) a real advantage to that parent in the move; and (2) that the move is not inimical to the best interests of the children. The rule in Virginia merely states that the move will be allowed if the trial court determines it is in the best interests of the children. Simmons v. Simmons, 1 Va. App. 358, 339 S.E.2d 198, 1986 Va. App. LEXIS 207 (1986).

Modification of visitation due to relocation. —

Order granting a mother’s motion for modification of child custody and visitation based on the mother’s relocation to Pennsylvania was proper because the trial court considered the § 20-124.3 factors in making its determination that relocation was in the child’s best interests; the evidence showed that the father was unable to provide the child with stability and structure, and that the mother had properly addressed the child’s special education needs. The mother was relocating to an area that the father could reach by car in about three hours, so the father was able to continue visitation, and the trial court expanded the father’s summer vacation, three-day weekend, and other visitation. Masters v. Sutton, 2007 Va. App. LEXIS 136 (Va. Ct. App. Apr. 3, 2007).

Modification of the father’s visitation was not an abuse of discretion where the father moved farther away from the mother’s house where the children primarily resided, resulting in extensive travel time for the children, and a decrease in academic performance and ability to participate in extracurricular activities after school. Harding v. Harding, 2009 Va. App. LEXIS 285 (Va. Ct. App. June 23, 2009).

Relocation was not in child’s best interest. —

Proposed relocation reflected the preferences of the mother and her husband, and did not provide necessitous or other compelling circumstances; the record demonstrated few, if any, benefits to the child, who was very young, from relocation hundreds of miles from her father; to the contrary, the evidence clearly established that the move would disrupt the positive involvement and influence of the father in the child’s life, a result at odds with her best interests. Sullivan v. Knick, 38 Va. App. 773, 568 S.E.2d 430, 2002 Va. App. LEXIS 524 (2002).

As a trial court found that there was a material change in circumstances (the mother’s economic condition), and that the mother’s relocation to Florida was in the best interests of the children because: (1) it would provide stability for them as they would have a support system that they lacked in Northern Virginia; (2) their economic situation would improve; (3) the mother would be able to stay at home; and (4) the father’s relationship with the children would not suffer, and these findings were not clearly wrong, it properly allowed the mother to relocate. Wheeler v. Wheeler, 42 Va. App. 282, 591 S.E.2d 698, 2004 Va. App. LEXIS 22 (2004).

Withholding of visitation as grounds for change of custody. —

Although this section’s requirement that there be a material change in circumstances to justify a change of custody may be satisfied by a finding of intentional withholding of visitation, this does not mean that the second requirement, dealing with best interests of the child, has been removed from the court’s consideration. Cintron v. Long, 2000 Va. App. LEXIS 487 (Va. Ct. App. July 5, 2000).

Modification of parent’s and grandparent’s joint legal child custody order. —

Father’s agreement with the grandfather for joint legal custody (JLC) of the father’s child effectively waived the constitutional presumption that effectively required future child custody changes to be subject to the father’s consent. The modification awarding primary physical custody to the father and retaining the JLC was properly based upon the child’s best interests and on the improved father/child relationship as the change in circumstances. Denise v. Tencer, 46 Va. App. 372, 617 S.E.2d 413, 2005 Va. App. LEXIS 314 (2005).

Since the father and grandfather’s agreement for joint legal custody and for the grandfather to have primary physical custody was the subject of a court’s consent order, the grandfather’s status of custodian gave him precisely the same child-rearing autonomy as that enjoyed by the parent in the hearing to modify that order. Denise v. Tencer, 46 Va. App. 372, 617 S.E.2d 413, 2005 Va. App. LEXIS 314 (2005).

Troxel does not define the burden of proof to be applied or the factors to be established and considered when a court is faced with a custody dispute between a grandparent and a parent, both of whom have custodial rights. Denise v. Tencer, 46 Va. App. 372, 617 S.E.2d 413, 2005 Va. App. LEXIS 314 (2005).

Nonsuit of motion to modify custody. —

Nonsuit was not prohibited by subsection A of § 8.01-380 as a motion to modify custody and visitation under § 20-108 was a new claim that was separate from the proceedings that resulted in the final divorce decree; since the claim had not been resolved when the nonsuit motion was filed, and the oral arguments had not concluded, the nonsuit was proper and the case did not revert to the time before the divorce decree was entered, but left the situation as if the motion to modify had never been filed. Gerensky-Greene v. Gerensky, 2012 Va. App. LEXIS 206 (Va. Ct. App. June 19, 2012).

Full faith and credit need not be given foreign child custody decrees. —

A Virginia court, having jurisdiction of the parties and of their minor children, may make a child support award without being bound by any previous award that may have been made in another state, and is not required to give full faith and credit to child custody decrees of another state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

Authority to modify custody upon material change in circumstances even after settlement agreement. —

Trial court retains authority to modify child custody upon a material change in circumstance even after the parties reach a settlement agreement that is incorporated into a final decree of divorce; because the parties may not contract away the trial court’s authority to change child custody when there is a material change in circumstances, every settlement agreement involving custody is implicitly made subject to those modifications. Khakee v. Rodenberger, 2020 Va. App. LEXIS 50 (Va. Ct. App. Feb. 25, 2020).

Modification of custody settlement agreement. —

Circuit court erred when it directed that its 2019 order superseded a 2016 order and incorporated a custody settlement agreement (CSA) in their entirety. This ruling was error because the CSA covered issues that the circuit court lacked authority to alter in its 2019 order, such as issues relating to equitable distribution, non-interference between the parties, and modification of the CSA. Joubert v. Herbert, 2020 Va. App. LEXIS 228 (Va. Ct. App. Sept. 1, 2020).

Insufficient evidence warranting custody change. —

Where the mother admitted that she had a long term sexual relationship with a man to whom she was not married; on four different occasions while her children were present, the man stayed overnight at her home for a weekend or more; and the children were aware the man was there and were aware that mother and the man slept together when he visited, the trial judge did not err in determining that there was not any change in circumstances that would cause a change in the legal custodial situation with the children. The trial judge prohibited the man from staying overnight until the couple married, but did not prohibit displays of affection between mother and the man, or contact between the children and the man. Bell v. Goodman, No. 0393-94-4 (Ct. of Appeals Aug. 30, 1994).

The court did not err in refusing to change custody of a child from the paternal grandmother to the mother in the absence of evidence of a change in circumstances, notwithstanding that the record disclosed the mother’s commitment to a constructive lifestyle, free of drugs and consistent with responsible parenting, successful employment, an enduring marriage, custody of two children, and a warm relationship with the child. Carter v. Brown, No. 3078-97-4 (Ct. of Appeals Oct. 13, 1998).

Although there were confrontations between father, his wife, and mother, some of which were in front of children or had a direct impact on children, these incidents did not support a change of custody to father under this section’s prohibition against intentional withholding of visitation without just cause. Grymes v. Grymes, 1999 Va. App. LEXIS 607 (Va. Ct. App. Oct. 26, 1999).

In a case in which a mother appealed the trial court’s orders denying her motion to modify custody, and ordering that appellee father retain sole legal and physical custody of the parties’ child, the mother unsuccessfully argued that the trial court erred in finding that no material change in circumstances occurred since the court’s custody order of January 13, 2005. The record supported that the child’s mental and emotional well-being continued to improve under the current custody arrangement; testimony from three teachers who instructed the child in the intervening years indicated that she was bright, got along with her classmates, and did not have any behavioral issues, and the father’s changes in marital status, employment, and residence did not constitute a change in circumstances that warranted a change in custody. Haring v. Hackmer, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009).

Evidence in the record supported a trial court’s finding that it was not in a child’s best interest to modify custody and visitation in favor of the father as the trial court weighed all of the factors enumerated in § 20-124.3 and concluded that the father had a strained relationship with the child, that he had almost no overnight visitation, that the father rarely exercised his visitation even though the child was made available to him, and that the child did not want to visit with the father. Jones v. Moody-Jones, 2012 Va. App. LEXIS 16 (Va. Ct. App. Jan. 24, 2012).

Trial court did not err in finding that the mother failed to make a prima facie case of materially changed circumstances warranting a modification of custody, as the children had lived with father their entire lives, had always attended schools where the father lived, and participated in extracurricular activities, and father consistently provided a stable home life for the children and sought the necessary medical attention for a child after the child was diagnosed with ADHD and anxiety. Cooper v. Laurent, 2021 Va. App. LEXIS 64 (Va. Ct. App. Apr. 20, 2021).

Change of custody supported by the evidence. —

Trial court’s order which, among other things, transferred custody of the parties’ children to the mother, was proper under circumstances in which the trial court found that the father had an increasing tendency to exclude the mother from decision-making regarding the children, had failed to consistently and effectively consult with the mother about the children, and had refused to communicate with her except in writing; the trial court also found that the father had interfered with the mother’s visitation and that, although the result of an investigation concluded that the allegations that the mother had sexually abused one of the children were unfounded, the father acted as if the allegations were true, and inappropriately took the child to a new therapist, without informing the mother. Place v. Roach, 2007 Va. App. LEXIS 125 (Va. Ct. App. Mar. 27, 2007).

Trial court properly modified the parties’ custody agreement to be in the best interest of the child pursuant to § 20-108 because, while the mother sought a determination of the school that the parties’ child would attend, that decision necessarily encompassed a change in custody based on the parties custody arrangement and residence in different counties. Anderson v. Anderson, 2013 Va. App. LEXIS 146 (Va. Ct. App. May 7, 2013).

Trial court did not err in modifying custody and visitation because it reviewed each of the statutory factors and determined that it was in the best interests of the children to modify custody and visitation; the trial court found that there was a material change in circumstances because the parties’ communication deteriorated, and the father’s words and actions were negatively impacting the children. Potas v. Potas, 2017 Va. App. LEXIS 339 (Va. Ct. App. Dec. 27, 2017).

Modification of visitation upheld. —

Trial court had authority to modify visitation on its own motion, and did not err in ruling that father’s visitation with children would end on Sunday evenings rather than Monday mornings. Zein v. Burgan, No. 0679-98-4 (Ct. of Appeals May 4, 1999).

Although the intentional withholding of visitation of a child from the other parent without just cause could constitute a material change in circumstances justifying a change of custody in the discretion of the court, a court’s authority to modify or revise a custody order could not be used merely to punish a parent; however, where a father consistently disregarded a custody order and intentionally withheld and/or interfered with the mother’s time with the child, this supported an implicit finding of a material change in circumstances, which justified a modification of visitation. Lovell v. McGuire, 2003 Va. App. LEXIS 143 (Va. Ct. App. Mar. 18, 2003).

Trial court did not err in entering a custody and visitation decree even though it varied slightly from the terms of the oral agreement recited before the trial court; the determinative factor in a trial court’s decision to alter visitation was whether it was in the best interests of the child to do so. The trial court modified the terms of the oral agreement at the request of the parties to clarify the calendar errors made in the agreement regarding Christmas, summer vacation, and the school-year weekends; the trial judge was clear that he thought it was in the best interests of the child not to alter visitation on Halloween, that the schedule was fair to the child, and that it benefited the child not to be on the road constantly. Mattingly v. McCrystal, 2006 Va. App. LEXIS 75 (Va. Ct. App. Feb. 28, 2006).

After a review of the evidence presented on appeal, the trial court did not err in modifying a prior visitation order and ordering a father to participate in his childrens’ regular, routine activities, after weighing the evidence and the factors set forth in § 20-124.3 , as required by § 20-124.2 , as: (1) sufficient evidence was presented of the tension and stress regarding the father’s interaction with the mother and his lack of compliance with court orders relating to visitation and issues regarding the children; (2) a certain degree of anxiety and pressure regarding the children’s visitation with father and his current wife, as well as between the father and the children during visitation, existed; and (3) the order requiring the father to adhere to the childrens’ planned activities merely directed him to allow the children to participate in their regular, routine activities, and was based on the father’s prior acts of disregarding the planned activities in which his teenage sons desired to participate, causing stress, anxiety, and a disruption in their social development. Goudreau v. Goudreau, 2006 Va. App. LEXIS 251 (Va. Ct. App. June 6, 2006).

Changed circumstances were shown to justify a change in a father’s visitation schedule where the trial court found that, although the schedule which allowed the father visitation for 50 percent of the overnights may have worked for the child while in preschool for three days a week for one-half a day, it was not going to work when child attended regular school. Zinn v. Zinn, 2006 Va. App. LEXIS 586 (Va. Ct. App. Dec. 28, 2006).

Modification of visitation denied. —

In case where child’s biological mother died and the trial court entered a consent order granting visitation to the maternal grandmother, a modification of the visitation order was not warranted because: (1) the time the child spent visiting with the grandmother was not of a degree to conflict with his increased activities; (2) the grandmother accommodated the child’s increased activities when those scheduled activities occurred when the child visited her; (3) the family’s return to Northern Virginia where the grandmother resided did not make visitation more difficult; and (4) although circumstances had changed since the entry of the order, those changes were not material changes in circumstances. Merritt v. Gray, 2004 Va. App. LEXIS 415 (Va. Ct. App. Sept. 7, 2004).

Trial court did not err in finding no material change in circumstances as to a 15-year-old child’s college aspirations, academic goals, summer volunteer opportunities, or advancing age warranting a change in the mother’s summer visitation schedule where the child had academic program opportunities in the area of mother’s residence. McDougall v. McDougall, 2010 Va. App. LEXIS 182 (Va. Ct. App. May 4, 2010).

Reduction of visitation upheld. —

Where court found that the parties were demonstrably unable to work together to reach decisions concerning the child’s welfare and that one parent needed to be completely in charge; that the substantial animosity between the parties and extended family made visitations disruptive; and furthermore, that traveling from Pennsylvania to Virginia three weekends a month destabilized the place of primary custody and was not conducive to the child’s best interests, the trial court’s decision maintaining custody with mother and reducing father’s visitation to two weekends a month was based upon the child’s best interests and was not plainly wrong. Joligard v. Joligard, No. 2533-96-4 (Ct. of Appeals May 20, 1997).

III.Support.

A.Procedural Matters.

Statutory guidelines applicable to modification hearing. —

The statutory guidelines must be applied not only in the initial child support hearing, but also in the hearings to modify support. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

The divorce court’s continuing jurisdiction to modify and change a decree affecting support of a minor child may be invoked “if a material change in condition and circumstance has occurred” and despite the parties’ previous agreement. Kaplan v. Kaplan, 21 Va. App. 542, 466 S.E.2d 111, 1996 Va. App. LEXIS 26 (1996).

Court must determine and consider presumptively correct award according to guidelines. —

In a proceeding to increase, decrease, or terminate child support under this section and § 20-112 , the trial judge must determine and consider the presumptively correct award of child support according to the guidelines. Thus, when a judge determines that a material change of circumstance has occurred in the children’s needs or the parents’ abilities to provide for those needs and that a change in the amount of support is required, the initial step to determine how to modify the support award is to calculate the amount presumed to be correct according to the guidelines. Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811, 9 Va. Law Rep. 789, 1993 Va. App. LEXIS 6 (1993).

Trial court did not abuse its discretion by increasing a father’s child support obligation even though the father’s motion to modify was seeking a reduction in child support because, inter alia, the trial court could increase or decrease the amount of child support pursuant to the statutory guidelines, regardless of the wording of the motion; the trial court followed the statutory process of determining the presumptive amount based on the father’s higher income and awarded that amount. Milam v. Milam, 65 Va. App. 439, 778 S.E.2d 535, 2015 Va. App. LEXIS 331 (2015).

Consideration of factors. —

This section directs the court to consider matters relevant to the circumstances of the parties and the benefit of the children which arise in the factual context of the petition for modification of support; therefore, the trial court did not err when it ruled it was not bound to consider all of the factors of subdivision 2 of § 20-107.2 (see now § 20-108.1 ) in hearing the father’s petition for reduction of child support. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Because the trial court found that a father received income from his real estate investments, but it did not quantify the amount of income he received, and did not include that income in calculating the parties’ child support obligations, and despite the parties’ 50/50 shared custody arrangement noted by the trial court in its letter opinion, the parties’ testimony showed that the unemancipated child was not actually living with the father 50 percent of the time pursuant to the final decree of divorce, the trial court erred in its determination of the parties’ child support obligations under the child support guidelines. Davis v. Robinson, 2008 Va. App. LEXIS 131 (Va. Ct. App. Mar. 18, 2008).

Use of income figure greater than testimony. —

Trial court erred when it used a monthly income figure that was greater than what the father testified to when calculating the child support amount under the guidelines, because there was no way to reconcile the trial court’s use of different figures in the letter opinion and guidelines calculation. Hatcher v. Matthews, 2017 Va. App. LEXIS 231 (Va. Ct. App. Sept. 5, 2017).

Inappropriate statutory ground for relief. —

Section 20-74 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).

Change of circumstances standard dependent on date of initial award. —

If the initial support award was made before July 1, 1989, the applicable date of the guidelines under this section, the moving party may satisfy the material change in circumstances requirement by showing that the amount of the award varies significantly from the presumptive amount under the guidelines. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

If the initial award was made after the applicable date of this section’s guidelines, July 1, 1989 a significant variation between the presumptive amount and actual support amount is not sufficient to justify review of the award and the moving party must prove a material change of circumstances. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

Because support orders “may be modified with respect to any period during which there is a pending petition for modification, but only from the date that notice of such petition has been given to the responding parties,” a party can claim no prejudice when a trial judge rules that a change in circumstances has occurred even though that change might have been foreseen at an earlier time. Kaplan v. Kaplan, 21 Va. App. 542, 466 S.E.2d 111, 1996 Va. App. LEXIS 26 (1996).

“Mandate rule” inapplicable to change of circumstances after final decree. —

Trial court erred in ruling that it had no jurisdiction to hear motions to modify spousal and child support under §§ 20-108 and 20-109 based on a change in circumstance because while child support was the subject of remand, neither a husband nor a wife on remand asked the trial court to relitigate the original amount of child or spousal support, and each party claimed a change of circumstances that occurred after the final decree; the “mandate rule” does not apply to a modification of child and spousal support when the change of circumstances did not exist at the time of the order initially appealed. West v. West, 59 Va. App. 225, 717 S.E.2d 831, 2011 Va. App. LEXIS 390 (2011).

Mandate followed. —

Circuit court did not refuse to comply with the mandate of the court of appeals upon remand because it based its determination of retroactive child support pursuant to the circumstances of the parties in accordance with the statute, and the court of appeals had stated that upon remand, it had to determine child support pursuant to the statute; following the mandate, the circuit court chose the effective date of retroactivity and awarded the wife her appellate attorney’s fees. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

The husband is not entitled to set off the amount of overpayments against future payments required by the decree for the benefit of the child or children. Newton v. Newton, 202 Va. 515 , 118 S.E.2d 656, 1961 Va. LEXIS 137 (1961).

Payments made directly to a child or on his behalf are considered gifts and are not to be credited against support arrearages since the payor has the obligation to pay the specified amounts according to the terms of a support order and cannot vary these terms to suit his or her convenience. To allow a party to make payments other than as specified in the support order would lead to continuous trouble and turmoil. Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 845, 5 Va. Law Rep. 372, 1988 Va. App. LEXIS 96 (1988).

This section does not permit the cancellation of arrears in support money. Cofer v. Cofer, 205 Va. 834 , 140 S.E.2d 663, 1965 Va. LEXIS 141 (1965), overruled in part, Singh v. Mooney, 261 Va. 48 , 541 S.E.2d 549, 2001 Va. LEXIS 2 (2001).

Past due support installments become vested as they accrue and are thereafter immune from change. Parties cannot contractually modify the terms of a support order without the court’s approval. Nor does a party’s passive acquiescence in nonpayment of support operate to bar that party from later seeking support arrearages. Should circumstances change requiring alteration in the amount of support, a party’s remedy is to apply to the court for relief. Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 845, 5 Va. Law Rep. 372, 1988 Va. App. LEXIS 96 (1988).

Past due support installments become vested as they accrue and are thereafter immune from change. Miller v. Maitland, No. 1388-89-2 (Ct. of Appeals Oct. 16, 1990).

Trial court not authorized to credit overpayments against underpayments. —

Trial court abused its discretion in crediting a father’s overpayments against his underpayments, as such amounted to a unilateral modification of the support order by reducing the father’s payments for some months of the year without the court’s approval; moreover, even if the court were permitted to credit the overpayments against the underpayments, no matter how the calculation was attempted, the father’s payments, not including third-party payments, did not meet what he owed in child support from August, 1998, to March, 2004. Cooper v. Ebert, 2005 Va. App. LEXIS 491 (Va. Ct. App. Dec. 6, 2005).

Where there is no decree nothing can be changed. —

On appeal, the mother contended that a court of equity had power to enforce the common-law obligation of the father as to future support, by virtue of this section, authorizing a court of equity, in a divorce suit, on the petition of either party, after final decree, to revise and alter such decree concerning the care, custody and maintenance of the children. It was held that there was no merit in this contention for the reasons that the suit was not one for divorce, so that there was no decree to be revised, and the pleading did not purport to be a bill in equity. Buchanan v. Buchanan, 170 Va. 458 , 197 S.E. 426 , 1938 Va. LEXIS 202 (1938).

Failure of court to issue order embodying change not fatal. —

The absence of an order embodying the decision of a divorce court to reduce child support payments was not fatal to the decision where the chancellor’s opinion clearly showed the decision, and the failure of counsel to prepare the requested order was termed an “oversight,” since a court has the power to correct such ministerial omissions nunc pro tunc when the record clearly supports such corrections. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

Correction of errors under § 8.01-428 . —

Subsection B of § 8.01-428 , unlike this section, gives courts the authority to enter nunc pro tunc order modifying support obligations in the rare situation where the evidence clearly supports the conclusion that an error covered by subsection B of § 8.01-428 has been made. Dorn v. Dorn, 222 Va. 288 , 279 S.E.2d 393, 1981 Va. LEXIS 303 (1981).

Jurisdiction over action. —

Agency was incorrect in arguing in its cross-appeal that the trial court never had jurisdiction to change the amount of child support awarded to the mother. Pursuant to § 20-108 , a trial court was not limited to child support requests made by the parties since the trial court could even take action on its own motion, and the issue of child support was clearly raised by the father’s petition and, thus, the courts involved in the case had jurisdiction over the child support matter. Barrett v. Commonwealth, Dep't of Soc. Serv., Div. of Child Support Enforcement ex rel. Barrett, 2008 Va. App. LEXIS 210 (Va. Ct. App. Apr. 29, 2008).

Jurisdiction improperly exercised. —

Subject matter jurisdiction. —

Circuit court lacked subject matter jurisdiction over a father’s motion to modify child support, because the support order was entered by the another circuit court, and pursuant to § 20-108 , that court retained continuing and exclusive subject matter jurisdiction over modification of child support. Williams v. Williams, 61 Va. App. 170, 734 S.E.2d 186, 2012 Va. App. LEXIS 387 (2012).

Agreement did not prohibit court’s modification. —

Full faith and credit will not be given where foreign proceedings uncontested. —

Full faith and credit will not be given to a child support order entered in another state in uncontested proceedings. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

In such cases, no proof of change of circumstances required. —

No proof of change of circumstances is required before the Virginia court may make a child support award that differs from the award made in the other state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

Relocation to foreign country. —

The court erred in terminating the father’s child support obligation, notwithstanding that all parties had relocated to India and the father’s assertion that, as the noncustodial parent, he was precluded by Indian law from raising child support issues and that the mother had no incentive to raise such issue in India because she could reap greater financial benefits by allowing the Virginia child support order to stand; the court could have modified the child support award to reflect the lower cost of living in India, but abused its discretion by terminating support for the child merely because the parents and child no longer resided in Virginia. Karimi v. Karimi, No. 1416-97-3 (Ct. of Appeals June 16, 1998).

Enforcing decree on father returning to State is within power of court. —

When a provision for care and custody of a child was placed in a decree of divorce granted after service of process in another state under former §§ 8-73 through 8-75, the power granted by this section “to revise and alter such decree” immediately became effective, and when the husband returned to Virginia the trial court, upon the filing of a petition to reinstate and upon proper process, acquired jurisdiction over his person, and having acquired such jurisdiction by force of the statute, the court was empowered to enforce the common-law duty of the husband to support his infant child. Bailey v. Bailey, 172 Va. 18 , 200 S.E. 622 , 1939 Va. LEXIS 215 (1939).

Award was prospective award, not retroactive modification. —

The trial court did not abuse its discretion when it ordered father to pay 45% of daughter’s previously-accrued medical expenses and the trial court’s order was not a retroactive modification but a prospective award. Carter v. Thornhill, 19 Va. App. 501, 453 S.E.2d 295, 1995 Va. App. LEXIS 53 (1995).

Retroactivity of child support modification. —

Trial court’s order as to retroactivity of a child support modification was proper under § 20-108 because the trial court found that there was fraudulent notice to the mother of the father’s earlier motion inasmuch as the notice was sent to an address where the father knew that the mother was no longer residing; the next motion to modify child support was served on June 23, 2010, and the trial court did not err in holding that the mother’s child support obligation would commence on June 23, 2010. Jonathan v. Jonathan, 2011 Va. App. LEXIS 334 (Va. Ct. App. Nov. 8, 2011).

Choosing the date of retroactivity, which was not earlier than the mandated date, was not plainly wrong or an abuse of discretion because the contempt order contemplated a husband’s arrearages to include the time before a child had reached the age of majority; the order did not award support for the child after the date that he reached the age of majority. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

Trial court did not award child support to children that had reached the age of majority prospectively because the order reduced a husband’s retroactive obligation to his children by more than $60,000; therefore, any error would be in the husband’s favor. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

Notice that termination of child support is in issue. —

Appellant received notice that termination of child support was in issue at the hearing, where she was informed that appellee was seeking a reduction in child support. Termination of child support does not require notice other than notice of a motion for reduction. The court’s use of the term “termination” to describe its action in reducing the support obligation from $40 per week to nothing did not change the fact that appellant had notice that a complete reduction in child support was a possibility. Furthermore, the court did not extinguish the obligation that the appellee might have to pay child support based on a future change of circumstances. Mitteldorfer v. Mitteldorfer, No. 1315-85 (Ct. of Appeals Aug. 13, 1986).

Effect of consent order. —

To prevail on his petition to modify his child support obligations, a father had not been required to show a material change in circumstances since the entry of a consent order, as that order addressed only custody and visitation, and its language did not support an interpretation that the parties intended to reaffirm child support obligations. Burns v. Burns, 2012 Va. App. LEXIS 370 (Va. Ct. App. Nov. 20, 2012).

Interest on child support arrears. —

All orders for child support arrears must charge interest at the judgment rate unless waived. Commonwealth v. Branch, No. 2860-97-2 (Ct. of Appeals Oct. 6, 1998).

B.Material Change of Circumstances.

The court may revise and alter its decree if a material change in condition and circumstances has occurred. Watkinson v. Henley, 13 Va. App. 151, 409 S.E.2d 470, 8 Va. Law Rep. 819, 1991 Va. App. LEXIS 258 (1991).

A trial judge may adjust child support payments when the petitioning party has proven by a preponderance of the evidence a material change in circumstances. “Where a party has demonstrated a material change in circumstance, the trial [judge] must determine whether that change justifies a modification in the support award by considering ‘the present circumstances of both parties and the benefit of the children.’ ” Thus, an agreement or decree regarding child support can never permanently fix the amount of support. Kaplan v. Kaplan, 21 Va. App. 542, 466 S.E.2d 111, 1996 Va. App. LEXIS 26 (1996).

The principle is well established that a material change in circumstances requires an actual change. Kaplan v. Kaplan, 21 Va. App. 542, 466 S.E.2d 111, 1996 Va. App. LEXIS 26 (1996).

Material change in circumstances alone is not basis for modification. —

The moving party in a petition for modification of support is required to prove both a material change in circumstances and that such change justifies an alteration in the amount of support; a material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Even assuming a father’s evidence showed that a material change in circumstances existed for a time period that he was disabled and could not work, the current circumstances showed that he was able and willing to obtain employment. A permanent reduction in his child support was not justified. Jimenez v. Jimenez, 2006 Va. App. LEXIS 399 (Va. Ct. App. Aug. 22, 2006).

Trial court did not err in denying the father’s petition for reduction in child support; although the father’s income reportedly dropped significantly when the father stopped being a shoe salesman and became a self-employed tool salesman, sufficient evidence supported a finding that the father voluntarily engaged in underemployment considering the father’s education, training, and earning capacity. Ericson v. Ericson, 2007 Va. App. LEXIS 258 (Va. Ct. App. July 3, 2007).

Best interests of children. —

A party moving for a reduction in support is not required to prove that the reduction would be in the best interests of the children. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Record of change of circumstances needed to support modification. —

Where there was no evidence from which the Supreme Court could determine whether the trial court did or did not abuse its discretion in increasing the amount of support originally agreed to by the parties and incorporated into the decree, because the record contained no evidence concerning a change in the children’s needs or circumstances, the decree appealed from was vacated. Mayhood v. Mayhood, 4 Va. App. 365, 358 S.E.2d 182, 4 Va. Law Rep. 20, 1987 Va. App. LEXIS 190 (1987).

Material change in circumstances found. —

Section 20-108 provided the trial court with authority to revise and alter its final decree concerning the care, custody, and maintenance of the child of a husband and wife and to make a new decree concerning the same because the child support arrearage was significantly higher than when the trial court entered the final divorce decree; however, because the record contained no timely filed transcript or written statement of facts with respect to the hearing, the court of appeals could not determine the precise factual or legal basis for the trial court’s ruling, and the husband’s appeal of the trial court’s order was dismissed. Smith v. Smith, 2008 Va. App. LEXIS 184 (Va. Ct. App. Apr. 15, 2008).

Material change in circumstances absent. —

The fact that the initial amount of child support was less than the presumptive amount under the guidelines did not constitute a material change in circumstances because the initial support award was entered after the effective date of the guidelines. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

Voluntary unemployment. —

Father was not entitled to modification of child support due to unemployment, since evidence supported trial court’s finding that his unemployment was voluntary. Ingram v. Ingram, No. 1966-98-2 (Ct. of Appeals Sept. 14, 1999).

Decision to find a husband voluntarily unemployed and subsequently to impute income was not plainly wrong or without evidence in the record because the husband did not overcome the burden to prove that his previous income could not be applied to the modification order. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

Father’s income reduced due to own conduct. —

Where evidence indicated father’s reduced income was due to father’s own misconduct or neglect, the trial court did not err in refusing to reduce the amount of child support and in imputing income to father equal to his previous income level. Luciani v. Luciani, No. 1221-94-4 (Ct. of Appeals March 21, 1995).

Trial judge in a support modification proceeding is not required to specify in writing why an earlier award of child support should continue to deviate from the guidelines when the judge has determined that no material change in circumstances justifies a modification of the last child support award. Crabtree v. Crabtree, 17 Va. App. 81, 435 S.E.2d 883, 10 Va. Law Rep. 331, 1993 Va. App. LEXIS 449 (1993).

Disclosure relating to ability to pay required. —

Where the father seeks a reduction in the amount of payments for the support and maintenance of his minor children because of a change in his financial condition, he must make a full and clear disclosure relating to his ability to pay. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

Discoverable records in support modification proceeding. —

While records probative of husband’s financial status prior to the divorce were arguably irrelevant to the instant proceedings for modification of previously ordered support, records of husband’s economic circumstances subsequent to the earlier order, including the financial particulars of his corporation, were proper subjects of inquiry which appeared reasonably calculated to lead to the discovery of admissible evidence. Mancini v. Mancini, No. 1420-96-1 (Ct. of Appeals Apr. 8, 1997).

Burden of proof. —

The burden is on the father of minor children to prove by a preponderance of the evidence that a change in his capacity to pay rendered him unable to keep up the payments of the amounts fixed by the agreement with his wife and ratified by the court. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

Spouse seeking change must show that his lack of ability to pay is not due to his own voluntary act or because of his neglect. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

The burden rests upon the party seeking to alter the decree to establish a material change in condition and circumstances by a preponderance of the evidence. Featherstone v. Brooks, 220 Va. 443 , 258 S.E.2d 513, 1979 Va. LEXIS 279 (1979); Edwards v. Lowry, 232 Va. 110 , 348 S.E.2d 259, 3 Va. Law Rep. 567, 1986 Va. LEXIS 235 (1986).

A party seeking a reduction in support payments has additional burdens: He must make a full and clear disclosure relating to his ability to pay. He must also show that his lack of ability to pay is not due to his own voluntary act or because of his neglect. Edwards v. Lowry, 232 Va. 110 , 348 S.E.2d 259, 3 Va. Law Rep. 567, 1986 Va. LEXIS 235 (1986).

The court retains jurisdiction to revise and alter child support amounts, whether the amount is initially set by the court or by agreement between the parties; however, the court may alter its prior decree only if a material change in condition and circumstances has occurred, and the burden of proof is on the party moving for an increase or decrease in the support amount. Mayhood v. Mayhood, 4 Va. App. 365, 358 S.E.2d 182, 4 Va. Law Rep. 20, 1987 Va. App. LEXIS 190 (1987).

While a trial court correctly placed on a mother the burden of proving a material change in circumstances justifying the modification of her support obligation, it improperly placed on the Virginia Department of Social Services, rather than the mother, the burden of proving that a change in circumstances was due to the mother’s voluntary act or dereliction. Commonwealth Dep't of Soc. Servs. Div. of Child Support Enforcement ex rel. Pomey v. Quantrille, 2005 Va. App. LEXIS 384 (Va. Ct. App. Oct. 4, 2005).

Revision permitted for material change in condition or circumstances. —

In exercising power under this section the court may revise and alter its decree if a material change in condition and circumstances has occurred. Featherstone v. Brooks, 220 Va. 443 , 258 S.E.2d 513, 1979 Va. LEXIS 279 (1979).

Remarriage of spouse seeking change. —

The fact that the spouse seeking a change in support obligation has remarried and has another family dependent upon him for support is entitled to little, if any, consideration. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

Husband’s primary responsibility was to child of his former marriage. —

His subsequent, voluntarily-assumed responsibilities should not be taken into account as a justification for reducing his obligation to support his own child. Edwards v. Lowry, 232 Va. 110 , 348 S.E.2d 259, 3 Va. Law Rep. 567, 1986 Va. LEXIS 235 (1986).

Inquiring about other employment opportunities, without more, did not support a finding that appellant’s subsequent termination for initiating the job search was self-imposed, that he voluntarily terminated his employment, or that he was discharged due to his own fault. Appellant was terminated without any wrongdoing on his part, therefore, the trial court erred in finding appellant’s termination voluntary and in finding that his reduction in income was self-imposed. Richards v. Richards, No. 0786-93-3 (Ct. of Appeals June 14, 1994).

Reconsideration of child support award on evidence of improvement of wife’s circumstances. —

Where the wife attained substantial employment since entry of a decree which granted alternating custody, reduced the husband’s child support obligation to $300 per month, and ratified the division of the remaining personal property, the wife earned a salary which approximated the husband’s income, and she was no longer a probationary employee but, rather, is gainfully employed in a professional position, on this evidence alone the husband proved by a preponderance of the evidence a material change in circumstances which justified a reconsideration of the decree requiring him to pay $300 per month in child support, including the six months of the year in which he has custody of the children. Poston v. Walton, No. 0067-86-3 (Ct. of Appeals Sept. 30, 1986).

The court was not automatically required to grant a reduction in support once the father established that the mother’s financial circumstances had improved. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Increase in mother’s income not bar to increase in father’s support obligation. —

While the mother’s income had increased substantially more than the father’s during the interim period, that fact did not bar increase of the father’s child support payments when otherwise warranted under the circumstances; the mother was now in the position where, except for periods of extended visitations, she was the one who had to take care of the children all the time and had the attendant expense for taking care of the children. Bell v. Goodman, No. 0393-94-4 (Ct. of Appeals Aug. 30, 1994).

Court-ordered change in custody established material change in circumstances. —

The circuit court’s decision to change the custody of the children from one parent to the other in itself established a material change in the conditions and circumstances of the parties so as to empower the circuit court to revise and alter the original support decree as warranted by the evidence. Rippe v. Rippe, 3 Va. App. 506, 351 S.E.2d 181, 3 Va. Law Rep. 1517, 1986 Va. App. LEXIS 389 (1986).

Child support consent order not shown to be material change. —

Husband who sought to obtain a suspension or reduction in spousal support, based on consent support order requiring him to pay child support for an illegitimate child, which consent order was entered between the hearing on permanent spousal support and the entry of the final decree setting that support, failed to show a material change in circumstances warranting a modification. Barton v. Barton, 31 Va. App. 175, 522 S.E.2d 373, 1999 Va. App. LEXIS 677 (1999).

Husband’s discovery that decree was binding did not warrant modification. —

Husband’s discovery that a decree requiring him to pay $1,000 a month in support was binding was not a change of circumstances warranting modification of the decree, where no challenge was made to the validity of the property settlement agreement in the case. Carr v. Carr, No. 1174-89-2 (Ct. of Appeals, Oct. 30, 1990).

Decrease in income following commencement of strike was material change. —

Defendant’s decrease in income following the commencement of union strike was a material change in circumstances invoking the court’s continuing jurisdiction to modify its decree concerning his child support obligation. Rawlings v. Rawlings, 20 Va. App. 663, 460 S.E.2d 581, 12 Va. Law Rep. 84, 1995 Va. App. LEXIS 649 (1995).

Retroactive modification allowed. —

While mother disputed the existence of an agreement for a permanent change, the parties fully complied with the change in physical custody for the time at issue — a period at the time of the modification hearing in excess of fifteen months. The resulting arrangement, that father assumed physical custody and total responsibility for the support of the child, fulfilled his obligation under the decree. Thus, the trial court had discretion to exercise its equity power and to credit father for his nonconforming payments. Carver v. Carver, No. 2189-97-4 (Ct. of Appeals May 5, 1998).

Although retroactive modification is generally not allowed, the court had authority to order the father to pay child support for a 15 month period during which he had custody of the parties’ child pursuant to an oral agreement and to order the mother to pay such support back to the father, as an implicit means of crediting the father for his expenditures in support of the child in his custody. Carver v. Carver, Jr., No. 2189-97-4 (Ct. of Appeals May 5, 1998).

Trial court did not err in making its order increasing child support retroactive to a date one year after the father was served with the mother’s petition to modify, as § 20-108 allowed modification of child support, in cases where the petition was still pending, from the date that notice of the petition to modify was given to the other party. Stiles v. Stiles, 48 Va. App. 449, 632 S.E.2d 607, 2006 Va. App. LEXIS 342 (2006).

Retroactive modification prohibited. —

Where there is a pending petition for modification, the trial court has the statutory authority to modify the support order, but only from the date that notice of such petition has been given to the responding party; it is well established that a trial court may not retroactively modify a child support decree to cancel a support arrearage or to relieve a parent of an accrued support obligation. Commonwealth ex rel. Graham v. Bazemore, 32 Va. App. 451, 528 S.E.2d 193, 2000 Va. App. LEXIS 334 (2000).

Where the sole issue before the trial court was whether the father was in contempt for failing to comply with that portion of a support order that required him to provide health care coverage for his child, it was within the court’s discretion to find that it would have been unduly burdensome to the father to provide such coverage and, therefore, that he was not in contempt, but the court exceeded its authority by retroactively modifying the underlying support order to eliminate this requirement. Commonwealth ex rel. Graham v. Bazemore, 32 Va. App. 451, 528 S.E.2d 193, 2000 Va. App. LEXIS 334 (2000).

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).

Effective date of modification. —

Trial court’s decision to make modified child support effective as of start of month following entry of its final decree was not an abuse of discretion. Hutchins v. Carrillo, No. 2674-98-4 (Ct. of Appeals June 22, 1999).

Effective date of change. —

Since the amount of the father’s income was one of the main issues in the case, the trial court did not abuse its discretion in deciding to make the child support payments effective as of the date of the hearing, when the main issue was resolved. Tidwell v. Late, 67 Va. App. 668, 799 S.E.2d 696, 2017 Va. App. LEXIS 137 (2017).

Trial court’s discretion as to effective date. —

Trial court did not err in calculating the amount of arrears in child support owed by a father from the date of the parties’ agreement to a reduction in child support rather than the date of the child’s emancipation. The earliest date from which the arrears could be calculated was the date a petition to modify was filed, pursuant to § 20-108 . Murphy v. Commonwealth, 2009 Va. App. LEXIS 518 (Va. Ct. App. Nov. 24, 2009).

Evidence insufficient to show material change in conditions. —

Estimated expenditures directly related to the care and maintenance of a new family which appellant had acquired is insufficient evidence to show that appellant had suffered a material change in his financial condition justifying modification of child support payments required of him. Morris v. Morris, 216 Va. 457 , 219 S.E.2d 864, 1975 Va. LEXIS 314 (1975).

Trial court properly denied a mother’s motion for a reduction in a child support award because the mother’s evidence failed to show a material change in circumstances justifying a change in the amount of the child support award; the trial court directly questioned the mother concerning her current monthly income and properly refused to admit evidence the mother proffered related to her income prior to the entry of a final decree of divorce. Mayo v. Mayo, 2008 Va. App. LEXIS 155 (Va. Ct. App. Apr. 1, 2008).

Insufficient evidence of fraud to necessitate support termination. —

Although DNA testing proved that the husband was not the child’s biological father, wife’s testimony proved that he married her with knowledge that another man might be the child’s father and convinced her to have the child, therefore, husband’s allegation of fraud as justification for relief from child support payment was unsupported by the evidence. Aviles v. Aviles, 14 Va. App. 360, 416 S.E.2d 716, 8 Va. Law Rep. 2925, 1992 Va. App. LEXIS 297 (1992).

Evidence held to show a sufficient change of condition and circumstances to justify the modification of the decree awarding exclusive custody of the child to appellant. Kern v. Lindsey, 182 Va. 775 , 30 S.E.2d 707, 1944 Va. LEXIS 232 (1944).

Where the children were nine years older than at the time the original decree was entered, it was proper under the circumstances to conclude that of necessity more money would be required for their support than was earlier required. Barnes v. Craig, 202 Va. 229 , 117 S.E.2d 63, 1960 Va. LEXIS 211 (1960).

Where one of the children had entered college since the time of the original decree, and where the separation agreement incorporated in the original decree contained an undertaking by the husband to “endeavor to provide” the children with a four-year college education, it was proper to increase the amount payable by the husband on behalf of the child who had entered college. Barnes v. Craig, 202 Va. 229 , 117 S.E.2d 63, 1960 Va. LEXIS 211 (1960).

Continuation of private school payments upheld. —

Clearly, the trial court did not find that it was without jurisdiction to modify the husband’s obligation to pay the private school tuition. Rather, the court evaluated the evidence presented and declined to make the modification sought by the husband. The court considered that, in previous litigation, it determined that private school was in the children’s best interest, and also that the parties had consistently contracted for the husband to provide the tuition costs. The husband made no showing that private school was not still in the son’s best interest. Therefore, the decision of the trial court was affirmed. Fricke v. Fricke, No. 1184-96-4 (Ct. of Appeals Jan. 7, 1997).

Effect of child reaching majority. —

Once the child reaches majority, the jurisdiction of the divorce court to provide for his support and maintenance terminates unless otherwise provided by agreement incorporated into the divorce decree. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

Court’s characterization of initial amount of child support as “improvident” was unnecessary but did not suggest a reliance upon an improper criterion, and it did not significantly affect the court’s decision, where the court’s finding that the mother met her burden of showing a substantial change in circumstances since entry of the final decree was supported by a preponderance of the evidence. Pistole v. Pistole, No. 0762-85 (Ct. of Appeals Oct. 10, 1986).

Noncustodial spouse’s ability to pay. —

Trial judge erred in using incarceration as a ground for reducing child support obligation where the reason for father’s diminished ability to pay, his incarceration, was a result of his own voluntary act of committing the crime of attempted capital murder. Brooks v. Division of Child Support Enforcement ex rel. Brooks, No. 1928-96-2 (Ct. of Appeals June 3, 1997).

C.Agreements Between Parties.

Modification of contracts for support of children beyond majority. —

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. However, where such contracts are incorporated into support decrees by a divorce court, they can only be modified by that court to the extent of its jurisdiction. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

Where the parties had expressly agreed that the husband’s obligation to pay child support would continue past the age of majority and did not condition this obligation on the place of the child’s residence, the parties’ agreement was enforceable and the husband was required to make the specified payments regardless of whether the child continued to reside with the wife. Goldin v. Goldin, 34 Va. App. 95, 538 S.E.2d 326, 2000 Va. App. LEXIS 797 (2000).

The jurisdiction of a court to provide for child support pursuant to a divorce is purely statutory and the relevant statutes only deal with the court’s power to provide for support and maintenance of minor children. Once the child reaches majority, the jurisdiction of the divorce court to provide for his support and maintenance terminates unless otherwise provided by agreement incorporated into the divorce decree. Goldin v. Goldin, 34 Va. App. 95, 538 S.E.2d 326, 2000 Va. App. LEXIS 797 (2000).

Trial court properly concluded that it did not have jurisdiction to modify support for the parties’ child because there was no language in the property settlement agreement that allowed for modification of child support after the child turned eighteen or graduated from high school; a court cannot modify support for a child who is no longer a minor simply because the agreement requires payment of support after the child has reached the age of majority. Everett v. Carome, 65 Va. App. 177, 775 S.E.2d 449, 2015 Va. App. LEXIS 246 (2015).

Contract may determine college education expense obligation. —

No law requires a parent to provide the expenses of an adult child to attend college. Such is true whether the parents are married or divorced. Thus, where parents seek to include such an obligation in their separation contract, the plain and unambiguous terms of their contract establish the rights and obligations of the parties. Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 1994 Va. App. LEXIS 692 (1994).

Contractual right to veto college choice upheld. —

Where the contract provided father the right to veto the selection of a particular college and, by exercising that right, to eliminate any obligation to pay a parental share of the expenses incurred at a college rejected by him, the court was not at liberty to impose a limitation on that veto right not found in the terms of the parties’ contract even though the parties could easily have done so. Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 1994 Va. App. LEXIS 692 (1994).

Virginia courts have continuing jurisdiction to modify, as circumstances may require, child support awards previously made by those courts in divorce proceedings. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

In exercising power under this section, the court may revise and alter its decree if a material change in condition and circumstances has occurred. Hammers v. Hammers, 216 Va. 30 , 216 S.E.2d 20, 1975 Va. LEXIS 246 (1975).

A divorce court has continuing jurisdiction during a child’s infancy to provide for his support and maintenance. Cutshaw v. Cutshaw, 220 Va. 638 , 261 S.E.2d 52, 1979 Va. LEXIS 306 (1979).

Modification not barred by res judicata. —

As a trial court had never ruled on a mother’s petition to modify child support, its order terminating the father’s alimony obligation was not a final judgment with regard to child support; therefore, the mother was not barred by res judicata in seeking modification of child support. Stiles v. Stiles, 48 Va. App. 449, 632 S.E.2d 607, 2006 Va. App. LEXIS 342 (2006).

Parties cannot contractually modify the terms of a support order without the court’s approval. Miller v. Maitland, No. 1388-89-2 (Ct. of Appeals Oct. 16, 1990).

Agreement to reduce child support invalid. —

An agreement between parents, which was not approved by the court, to proportionately reduce the amount of child support paid by the father upon the emancipation of each child, was in clear contravention of Virginia law and public policy and, to the extent such an adjustment was contemplated by the divorce decree incorporating the parties’ earlier agreement, such decree was violative of this section and ineffective. Riggins v. O'Brien, 34 Va. App. 82, 538 S.E.2d 320, 2000 Va. App. LEXIS 798 (2000), aff'd, 263 Va. 444 , 559 S.E.2d 673, 2002 Va. LEXIS 31 (2002).

Apportionment of unitary award made pursuant to approved settlement agreement. —

A court, without any necessity therefor, may not apportion a unitary award made pursuant to an approved settlement agreement. Wickham v. Wickham, 215 Va. 694 , 213 S.E.2d 750, 1975 Va. LEXIS 211 (1975) (limiting Carter v. Carter, 215 Va. 475 , 211 S.E.2d 253 (1975), in application to cases involving substantially similar factual situations as therein).

An agreement by parties regarding the support of minor children has a characteristic that is significantly different from contracts generally. When parties contract concerning their property, spousal support, and related aspects of their affairs and file the contract with the court before entry of the divorce decree, “no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that . . . contract.” Unlike those contracts, any agreement that the parties reach regarding minor children may be modified by a judge “from time to time . . . , as the circumstances of the parents and the benefit of the children may require.” The issue of foreseeability of a change in condition, therefore, has significantly less impact in matters concerning child support. Kaplan v. Kaplan, 21 Va. App. 542, 466 S.E.2d 111, 1996 Va. App. LEXIS 26 (1996).

In an action interpreting a child support provision in a property settlement agreement, the trial court properly required the mother and father to seek court approval of a support modification and in imputing income to the mother, based on her concession to allowing such; but, the trial court erred in crediting the father with non-conforming child support payments, requiring remand to recalculate the arrearage amount and any interest therein. Cooper v. Ebert, 2005 Va. App. LEXIS 491 (Va. Ct. App. Dec. 6, 2005).

Trial court erred in granting a wife’s motion in limine to exclude evidence that would allow a husband to contradict the property settlement agreement’s requirement that he pay a certain sum each month because the agreement had to be read in a manner that allowed for apportionment of the support award between the children and for a downward modification of the monthly obligation so long as the adjustment was warranted by a change in circumstances and one child was a minor. Everett v. Carome, 65 Va. App. 177, 775 S.E.2d 449, 2015 Va. App. LEXIS 246 (2015).

Modification of child support remains with court regardless of contract between parties. Parrillo v. Parrillo, 1 Va. App. 226, 336 S.E.2d 23, 1985 Va. App. LEXIS 90 (1985).

Agreement cannot preclude court from exercising statutory power. —

The trial court cannot be precluded by agreement from exercising its statutory power under this section to alter child support under appropriate circumstances. Carter v. Carter, 215 Va. 475 , 211 S.E.2d 253, 1975 Va. LEXIS 175, limited, Wickham v. Wickham, 215 Va. 694 , 213 S.E.2d 750, 1975 Va. LEXIS 211 (1975).

Reliance on property settlement agreement improper. —

In an action to reduce child support based on a property settlement agreement, the trial court failed to give due consideration to the factors specified in this section where it placed primary reliance on the provisions of the property settlement agreement. Yohay v. Ryan, 4 Va. App. 559, 359 S.E.2d 320, 4 Va. Law Rep. 257, 1987 Va. App. LEXIS 214 (1987).

Letter by mother relieving father of child support payment ineffectual. —

Letter by mother to father’s attorney relieving him of his child support payments while mother and child lived in Louisiana did not in fact relieve father of court ordered child support payments since a party cannot by contract or acquiescence modify the terms of a support order. Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 845, 5 Va. Law Rep. 372, 1988 Va. App. LEXIS 96 (1988).

CIRCUIT COURT OPINIONS

Settlement agreement void. —

Because a provision in the parties’ property settlement agreement providing that mortgage payments would be in lieu of child support clearly deprived the court of its continuing jurisdiction under § 20-108 to modify or enforce support, the provision was void. Wykle v. Wykle, 74 Va. Cir. 526, 2006 Va. Cir. LEXIS 297 (Roanoke Apr. 10, 2006).

Effect of child reaching majority. —

While it was true that once a child reached a statutory child support termination event, the trial court lost jurisdiction over the case unless an agreement incorporated into a divorce decree provided otherwise, it was also true that the legislature could extend the age at which a statutory child support termination event occurred, and, thus, the father should not have stopped paying child support when the minor son turned 18 years old even though that was the age of majority at the time the father and mother divorced, since the legislature was authorized to, and did, change that age to 19 long before the minor child turned 18 years old, which meant the trial court retained jurisdiction to order the father to continue paying child support to the mother on behalf of the minor son who had just turned 18 years old. Trimble v. Baker, 2004 Va. Cir. LEXIS 111 (Fairfax County Apr. 28, 2004).

Credit for non-conforming support payments must be based upon agreement between parents. —

Any credit for non-conforming child support payments must be based upon an agreement between parents which modifies only the terms or method of payment with no adverse effect on the support award; thus, a father was not entitled to any credit against his child support obligations for his non-conforming payments to his daughter because his former wife did not agree to the change. Poyo v. Kozlow, 63 Va. Cir. 328, 2003 Va. Cir. LEXIS 335 (Loudoun County Oct. 28, 2003).

Child support retroactive to date of decree. —

Because the parties’ support agreement did not become an order enforceable by the court until November 17, 2003, when it was incorporated into the action for divorce, the court ordered that its award of child support be retroactive to the date of the decree. Buchner v. Buchner, 2004 Va. Cir. LEXIS 240 (Fairfax County Aug. 17, 2004).

Material change in circumstance has occurred. —

After the father, through no fault of his own, lost his job, he obtained new employment earning approximately one half of his previous salary; thus, the change in circumstances warranted a reduction in the father’s child support obligation. Jones v. Jones, 2003 Va. Cir. LEXIS 165 (Loudoun County Oct. 3, 2003).

Father was not entitled to a modification of his child support obligation on grounds that he was unable to pay the same, where said inability was due to his own voluntary act, specifically, his incarceration, and this incarceration did not amount to a change in circumstances. Gutman v. Gutman, 2003 Va. Cir. LEXIS 212 (Fairfax County Nov. 12, 2003).

In a case in which an ex-husband sought modification of both his spousal support and child support obligation under the last support order, which was a consent decree, his ex-wife’s remarriage constituted a material change. The ex-husband’s child support obligation was increased because his ex-wife’s remarriage, which terminated his spousal support, constituted a material change of circumstances, and he had been relieved of his obligation to provide medical insurance for the children. Bruley v. Galer, 2009 Va. Cir. LEXIS 105 (Loudoun County Oct. 5, 2009).

Modification of support denied. —

As a former husband failed to prove that his voluntary act in taking a lower paying job did not contribute to his current lack of ability to pay child and spousal support, due to his loss of the lower-paying job, his motion to modify support was denied. Cherpes v. Cherpes, 2003 Va. Cir. LEXIS 109 (Loudoun County June 20, 2003).

Where a former husband asked that his spousal support obligation be terminated retroactively due to his former wife’s failure to obtain a degree, and the wife requested that spousal support continue for an additional time so she could obtain her degree, the trial court denied both motions because the defined duration award was not conditioned on the wife’s obtaining a degree, but was intended to give her the opportunity and incentive to do so. Cherpes v. Cherpes, 2003 Va. Cir. LEXIS 109 (Loudoun County June 20, 2003).

Father’s child support obligations to mother could not be retroactively modified absent a showing of fraud. Miller v. Miller, 72 Va. Cir. 274, 2006 Va. Cir. LEXIS 268 (Fairfax County Nov. 21, 2006).

§ 20-108.1. Determination of child or spousal support.

In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court’s decision shall be rendered based upon the evidence relevant to each individual case.
In any proceeding on the issue of determining child support under this title, Title 16.1, or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court’s decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent 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 on the obligor.In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;
4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;
5. Debts of either party arising during the marriage for the benefit of the child;
6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
8. Any special needs of a child resulting from any physical, emotional, or medical condition;
9. Independent financial resources of the child or children;
10. Standard of living for the child or children established during the marriage;
11. Earning capacity, obligations, financial resources, and special needs of each parent;
12. Provisions made with regard to the marital property under § 20-107.3 , where said property earns income or has an income-earning potential;
13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
15. Such other factors as are necessary to consider the equities for the parents and children.
In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to order either party or both parties to provide health care coverage or cash medical support, as defined in § 63.2-1900 , or both, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.
In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.
Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption and any credits resulting from such exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.
Notwithstanding any other provision of law, any amendments to this section shall not be retroactive to a date before the effective date of the amendment, and shall not be the basis for a material change in circumstances upon which a modification of child support may be based.
Child support payments, whether current or arrears, received by a parent for the benefit of and owed to a child in the parent’s custody, whether the payments were ordered under this title, Title 16.1, or Title 63.2, shall not be subject to garnishment. A depository wherein child support payments have been deposited on behalf of and traceable to an individual shall not be required to determine the portion of deposits that are subject to garnishment.
In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. The order may permit the attendance of the vocational expert at the deposition of the person to be evaluated. The order shall specify the name and address of the expert, the scope of the evaluation, and shall fix the time for filing the report with the court and furnishing copies to the parties. The court may award costs or fees for the evaluation and the services of the expert at any time during the proceedings. The provisions of this section shall not preclude the applicability of any other rule or law.

History. 1986, c. 461; 1988, c. 907; 1989, c. 599; 1990, c. 567; 1991, cc. 545, 588; 1992, cc. 543, 716, 860; 1993, cc. 520, 534; 1994, c. 764; 1995, c. 261; 1996, c. 491; 1998, cc. 592, 612; 2001, c. 809; 2004, cc. 204, 1008; 2006, cc. 785, 798; 2007, c. 872; 2009, c. 713; 2010, c. 176; 2013, cc. 276, 522; 2020, c. 192.

Cross references.

As to exclusion of witnesses in civil cases, see § 8.01-375 .

As to protective order in cases of family abuse, see § 16.1-279.1.

As to support of a committed juvenile, see § 16.1-290. As to additional homestead exemption for parents of dependent children, see § 34-4.2 .

As to child support for child placed in foster care by court, see § 63.2-909 .

As to administrative review of a support order that deviated from guidelines, based on a deviating factor set out in § 20-108.1 , and scheduling of a court hearing, see § 63.2-1921 .

The 2001 amendments.

The 2001 amendment by c. 809 deleted “other children,” preceding “other family” in subdivision B 1.

The 2004 amendments.

The 2004 amendment by c. 204 substituted “any” for “the” in the last sentence of the first paragraph of subsection B.

The 2004 amendment by c. 1008 substituted “unreimbursed” for “extraordinary” in subdivision B 8.

The 2006 amendments.

The 2006 amendment by cc. 785 and 798 are nearly identical, and in subsection B, added “including the cost of visitation travel” at the end of subdivision B 2, added the proviso at the end of subdivision B 3, deleted former subdivision B 5, which read: “Debts incurred for production of income,” redesignated former subdivisions B 6 through B 11 as subdivisions B 5 through B 10, former subdivisions B 14 through B 16 as subdivisions B 11 through B 13 and former subdivision B 18 as B 14, in subsection B 5, deleted “health care coverage” following “the court for” and “and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3 ” following “the child,” rewrote subdivision B 7, deleted “if any” following “resources” in subdivision B 8, substituted “child or children” for “family” in subdivision B 9, in subdivision B 10, deleted “and needs, and” following “obligations” and inserted “and special needs”, deleted former subdivisions B 12 and B 13, relating to education and training factors and contributions for the family well-being, respectively, added “where said property earns income or has an income-earning potential” in subdivision B 11, in subdivision B 12, substituted “including” for “regarding,” inserted “for exemptions, child tax credit, and child care credit” and deleted “and child care expenses” following “children,” inserted “stipulation, consent order, or decree” in subdivision B 13, deleted former subdivision B 17, relating to pendente lite decrees, in subdivision B 14, deleted “including tax consequences to each party” following “factors” and made related changes; and added subsection F.

The 2007 amendments.

The 2007 amendment by c. 872 added subsection G.

The 2009 amendments.

The 2009 amendment by c. 713, in subsection C, substituted “order either party or both parties” for “order a party,” and inserted “or cash medical support” and “or both.”

The 2010 amendments.

The 2010 amendment by c. 176 added subsection H.

The 2013 amendments.

The 2013 amendments by cc. 276 and 522 are identical, and added “including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential” at the end of subdivision B 3; added subdivision B 4, and redesignated the remaining subdivisions accordingly; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c 192 inserted “and any credits resulting from such exemption” in subsection E.

Law Review.

As to 1988 legislative change in child support, see 22 U. Rich. L. Rev. 565 (1988).

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

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

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

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

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

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

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

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 19 Trial Procedure. § 19.02 Order of Procedure at Trial. Friend.

Virginia Forms (Matthew Bender). No. 2-1007 Scheduling Order for Divorce Trial.

Michie’s Jurisprudence.

For related discussion, see 6A M.J. Divorce and Alimony, § 53, 58.

CASE NOTES

Analysis

I. In General.
II. Factors for Consideration.
- A. Generally.
- B. Imputed Income.

I.In General.

Applicability. —

Trial court’s order as to retroactivity of a child support modification was proper under § 20-108 because the trial court found that there was fraudulent notice to the mother of the father’s earlier motion inasmuch as the notice was sent to an address where the father knew that the mother was no longer residing; the next motion to modify child support was served on June 23, 2010, and the trial court did not err in holding that the mother’s child support obligation would commence on June 23, 2010. This section applies to initial petitions for child support, not modifications of child support. Jonathan v. Jonathan, 2011 Va. App. LEXIS 334 (Va. Ct. App. Nov. 8, 2011).

Parties may not override the legislative scheme to determine child support amounts by agreeing to establish a different process for arriving at the appropriate support amount. Saleem v. Saleem, 26 Va. App. 384, 494 S.E.2d 883, 1998 Va. App. LEXIS 26 (1998).

This section allows for a written agreement between the parties as to a different amount of child support, not a different process for determining child support. Saleem v. Saleem, 26 Va. App. 384, 494 S.E.2d 883, 1998 Va. App. LEXIS 26 (1998).

New custody category created by 1992 amendment. —

Enactment of the shared custody guidelines in subdivision G 3 of § 20-108.2 did not merely set out a methodology for considering custodial arrangements under existing subdivision B 2 of this section, it created a new category of custody. Both the language of the Code of Virginia and the effect of its provisions indicate that the 1992 amendment recognized a third type of custody applicable to parents who had custody for more than 110 days a year. Hadeed v. Hiner, No. 2270-93-2 (Ct. of Appeals June 7, 1994).

Retroactivity of amendment providing for retroactive award. —

The amendment to the statute which provided for the retroactivity of an award of child support was procedural, rather than substantive, and, therefore, applied retroactively. Sharp v. Wilson, No. 0469-97-4 (Ct. of Appeals June 2, 1998).

Retroactive award. —

Trial court erred in not awarding child support from the date of the commencement of the proceeding, as it was obliged to order child support retroactively and had no discretion in the matter. Cirrito v. Cirrito, 44 Va. App. 287, 605 S.E.2d 268, 2004 Va. App. LEXIS 574 (2004).

District court order was a valid, enforceable order that remained in effect until the time of the circuit court’s decision; accordingly, there was no error in the circuit court’s refusal to retroactively terminate the previously ordered spousal support. Barrett v. Barrett, 2005 Va. App. LEXIS 458 (Va. Ct. App. Nov. 15, 2005).

Trial court did not err in awarding child support retroactive to the date wife filed her initial pleadings because the trial court’s order did not constitute a finding that the trial court had no jurisdiction over child support, but rather, it was simply a decision to decline to exercise jurisdiction over child support at that particular time; that order was no basis for saying the trial court had no jurisdiction over child support. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Trial court erred in ordering that child support would be effective March 1, 2018, because this statute required that liability for child support be measured from the date the proceeding was commenced on February 19, 2015, which was the date the ex-husband filed a complaint for divorce, including a request for pendente lite relief; and the husband was liable for child support retroactively to that date; therefore, the trial court erred in failing to award to the ex-wife child support retroactive to February 19, 2015. Pittman v. Pittman, 2019 Va. App. LEXIS 216 (Va. Ct. App. Oct. 1, 2019).

Given the statutory mandate of to make a child support order retroactive to the date of filing, the trial court did not err in using the wife’s imputed salary as the basis for child support retroactive to October 2, 2017. Chaudhry v. Chaudhry, 2020 Va. App. LEXIS 27 (Va. Ct. App. Jan. 28, 2020).

Circuit court had before it a divorce proceeding requesting it to adjudicate support, filed January 30, 2018, and by granting wife’s request to merge her dismissed petitions from another court into the matter before it, the circuit court did not effectively mean the case now originated with her filing petitions in the lower court. The proceeding at hand commenced with the filing of a complaint in the circuit court, which did not err in ruling that support be retroactive to January 30, 2018. Myers v. Myers, 2020 Va. App. LEXIS 111 (Va. Ct. App. Apr. 14, 2020).

Pendente lite support order not required. —

Husband’s assertion that wife waived her right to retroactive child support by not seeking a pendente lite support order lacked merit because the statute contained no requirement for a pendente lite order or hearing to establish a retroactive obligation. Chaudhry v. Chaudhry, 2020 Va. App. LEXIS 27 (Va. Ct. App. Jan. 28, 2020).

Court must adhere to relevant statutory requirements. —

There may be sufficient grounds for the trial judge to rebut the presumption found in § 20-107.2 and this section; however, the trial judge must adhere to the statute and give an analysis using the required factors in his decision. Where the trial judge failed to satisfy § 20-108.2 , the child support award in an amount different from that contained in the guidelines could not stand. Smith v. Smith, No. 2336-91-1 (Ct. of Appeals Nov. 10, 1992).

Even though the amount of support awarded may be appropriate, it is reversible error for a trial court to enter a support order which does not expressly determine the presumptive amount of support due under the guidelines or fully explain the basis for deviating from that amount, as required by this section. Herring v. Herring, 33 Va. App. 281, 532 S.E.2d 923, 2000 Va. App. LEXIS 610 (2000), limited, Courembis v. Courembis, 43 Va. App. 18, 595 S.E.2d 505, 2004 Va. App. LEXIS 203 (2004).

Where a trial court conducted an ore tenus hearing on equitable distribution and was advised that the parties’ marital home had been destroyed by fire and that the wife and child were left without a residence or sufficient funds to obtain shelter, the trial court abused its discretion in allowing the husband to continue to make mortgage payments under a pendente lite child support order and receive credit for them in lieu of making the required child support payments to wife for the child’s benefit. The trial court did not adhere to the statutory child support requirements; child support was not allocated to benefit the child according to the guidelines. Stewart-Payne v. Payne, 2008 Va. App. LEXIS 49 (Va. Ct. App. Jan. 29, 2008).

Trial court erred when, in modifying a father’s child support obligation but ordering an amount higher than the father’s presumptive obligation under subsection B of § 20-108.2 , the trial court failed to explain and make written findings as to why the modification was justified, why the guideline amount was unjust or inappropriate or why a deviation from the guideline was proper. Allbritten v. Allbritten, 2008 Va. App. LEXIS 499 (Va. Ct. App. Nov. 12, 2008).

Trial court’s order on child support failed to comply with the statutory requirements and the mandatory steps that courts must follow in exercising their discretion to make an award of child support because the record revealed no calculation of the presumptive amount of child support under the guidelines, nor was there any statement of why the application of the child support guidelines would be unjust or inappropriate. Sizov v. Sizov, 2020 Va. App. LEXIS 299 (Va. Ct. App. Dec. 8, 2020).

Determination of support awards must be based on contemporary circumstances and modified in the future as changes in circumstances occur. Howe v. Howe, 30 Va. App. 207, 516 S.E.2d 240, 1999 Va. App. LEXIS 420 (1999).

Presumption of guideline’s correctness. —

A rebuttable presumption exists that the amount derived from the guidelines, § 20-108.2 , is correct. Auman v. Auman, 21 Va. App. 275, 464 S.E.2d 154, 1995 Va. App. LEXIS 863 (1995).

It was reversible error for the court to award child support without first determining the presumptively correct amount of child support and without making written findings in the order or incorporated by reference to support its deviation from the guidelines. Hackett v. Hackett, No. 2640-97-2 (Ct. of Appeals Mar. 23, 1999).

The child support guidelines in § 20-108.2 are presumed to be correct unless rebutted and must be followed unless the trial court finds that their application would be unjust or inappropriate. Rinaldi v. Dumsick, 32 Va. App. 330, 528 S.E.2d 134, 2000 Va. App. LEXIS 330 (2000).

Trial court must first apply guidelines of § 20-108.2 . —

Before any of the factors of this section can be considered, a trial court must first apply the child support guidelines of § 20-108.2 to determine the presumptively correct amount of child support. Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897, 7 Va. Law Rep. 1840, 1991 Va. App. LEXIS 29 (1991).

The presumptive amount determined from § 20-108.2 must be awarded unless, because of evidence of one or more factors enumerated in § 20-107.2 and this section, such amount is “unjust or inappropriate.” Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991).

Opportunity to introduce any evidence or testify. —

Trial court erred in dismissing with prejudice a wife’s motion to modify child support and in awarding attorney fees to the husband because the court did not have the authority to impose sanctions without prior entry of an order to compel, the court’s determination that the wife had not met her burden of proof was premature inasmuch as the wife never had an opportunity to introduce any evidence or testify, the husband never filed a motion to compel, the court failed to consider the significant factor that the wife should have prevailed on the husband’s motion before awarding attorney fees. Khakee v. Rodenberger, 2019 Va. App. LEXIS 77 (Va. Ct. App. Apr. 9, 2019).

Court must calculate support under guidelines and explain deviation in writing. —

Pursuant to this section, a court has an affirmative duty to calculate expressly the presumptive amount of child support under the guidelines and, if it deviates from that presumptive amount, to explain adequately the basis for such deviation; a trial court’s deviation from the child support guidelines without first calculating and stating the presumptive amount of support due constitutes reversible error. Tatum v. Tatum, 2000 Va. App. LEXIS 789 (Va. Ct. App. Dec. 5, 2000).

Offset of expenses. —

Nothing in subdivision B 8 of § 20-108.1 , or elsewhere in the relevant statute, requires the court to offset out-of-pocket expenses against an award based on the statutory guidelines; because appellants presented no supporting legal authority, the court did not consider their claim that they were entitled to an offset from their child support debt. Sparks v. Arlington Cty. Dep't of Human Servs., 2019 Va. App. LEXIS 22 (Va. Ct. App. Jan. 29, 2019).

Failure to provide written grounds for deviation requires reversal. —

In order to rebut the presumption that the amount of support which would result from the application of the guidelines is correct, the trial judge is required to make written findings in the order and, where the order contains no such findings, the trial judge has erred and the case must be reversed and remanded for further consideration. Goldin v. Goldin, 34 Va. App. 95, 538 S.E.2d 326, 2000 Va. App. LEXIS 797 (2000).

Since the trial court erroneously failed to first determine the presumptive amount of support and failed to support any deviation from the guidelines with written findings, the matter had to be remanded for the purposes of compliance with §§ 20-108.1 and 20-108.2 .Barrett v. Barrett, 2005 Va. App. LEXIS 458 (Va. Ct. App. Nov. 15, 2005).

Trial court erred in denying child support to the husband because there was no determination of the best interests of the children, no mention of the presumed amount to be awarded under the guidelines nor written justification for the trial court’s deviation from that presumed amount, and little analysis of the factors. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

Trial court may adjust scheduled amount. —

The starting point for a trial court in determining the monthly child support obligation of a party is the amount as computed by the schedule found in subsection B of § 20-108.2 . However, after determining the presumptive amount of support according to the schedule, the trial court may adjust the amount based on the factors found in § 20-107.2 and this section. Richardson v. Richardson, 12 Va. App. 18, 401 S.E.2d 894, 7 Va. Law Rep. 1833, 1991 Va. App. LEXIS 32 (1991) (see also,). Scott v. Scott, 12 Va. App. 1245, 408 S.E.2d 579, 8 Va. Law Rep. 666, 1991 Va. App. LEXIS 226 (1991); Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811, 9 Va. Law Rep. 789, 1993 Va. App. LEXIS 6 (1993).

The trial court may deviate from the presumptive amount of child support to the extent that the factors enumerated in this section “may be reflected in the child support or other provisions of an agreement which indirectly benefit a child.” Kogon v. Keenan, No. 0603-92-4 (Ct. of Appeals April 27, 1993).

If the application of the guidelines after including a gift received by a parent in that parent’s gross income is unjust or inappropriate, the chancellor may make written findings and deviate from the guidelines amount based on other factors; such factors include, but are not limited to, whether the financial resources were used to reduce marital debt, enhance the marital estate or benefit any child; whether the asset is received with regularity; whether the assert is liquid and whether the asset or property is income producing. Goldhamer v. Cohen, 31 Va. App. 728, 525 S.E.2d 599, 2000 Va. App. LEXIS 156 (2000).

Trial court’s written explanation for its order modifying child support was satisfactory because the explanation adequately informed the parties that the trial court accepted the mother’s testimony about the additional expenses and took into account the parties’ earlier child support agreement; the court of appeals sufficiently understood the trial court’s decision to review it on appeal. Saxon v. Lesueur, 2013 Va. App. LEXIS 379 (Va. Ct. App. Dec. 17, 2013).

Reasons justifying variation must be recognized by § 20-108.2 B and be in writing. —

Although a trial court properly deviated from, and made findings in accordance with the § 20-108.2 child support guidelines based on the subsection B of § 20-108.1 finding of the mother’s history of financial irresponsibility, the trial court failed to consider or rule on the mother’s request for attorney’s fees, which was properly preserved under subsection A of § 8.01-384 . Princiotto v. Gorrell, 42 Va. App. 253, 590 S.E.2d 626, 2004 Va. App. LEXIS 12 (2004).

Justification of deviation may be incorporated in order of the court prepared by trial counsel. —

Although a deviation from the presumptive amount of child support requires a trial court to “make written findings of enough detail and exactness to allow for effective appellate review of the findings,” these findings may be incorporated in an order of the court prepared and submitted for approval by trial counsel. Kogon v. Keenan, No. 0603-92-4 (Ct. of Appeals April 27, 1993).

Court vested with discretionary power. —

In determining an appropriate contribution to the child’s support the trial court is vested with discretionary power and its award will not be reversed on appeal unless plainly wrong or unsupported by the evidence. Rinaldi v. Dumsick, 32 Va. App. 330, 528 S.E.2d 134, 2000 Va. App. LEXIS 330 (2000)(Ct. of Appeals Oct. 23, 1990) (see also,). Rinaldi v. Dumsick, 32 Va. App. 330, 528 S.E.2d 134, 2000 Va. App. LEXIS 330 (2000).

Written findings explaining nonconforming award are not required. —

Where trial judge may not consider modifying award, written findings explaining the nonconforming award are not required, even though the trial judge in the prior proceeding may have failed to make those required findings. Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811, 9 Va. Law Rep. 789, 1993 Va. App. LEXIS 6 (1993).

Comparisons of statutory definitions of gross income. —

Reversible error for failure to follow statutory guidelines. —

Where trial court’s order reducing father’s child support obligation failed to explain why the guideline amount was unjust or inappropriate, failed to determine the guideline amount, and failed to give a written explanation for deviating from the guideline amount, the failure to make the required written findings in accordance with this section and § 20-108.2 was reversible error. Miller v. Miller, No. 1935-92-1 (Ct. of Appeals Dec. 28, 1993).

Trial court erred when it deviated from the requirements of subsection D of § 20-108.2 in ordering a husband to pay 80 percent of all unreimbursed medical and dental expenses of the children without making findings consistent with the dictates of §§ 20-108.1 and 20-108.2 .Gerl v. Gerl, 2005 Va. App. LEXIS 364 (Va. Ct. App. Sept. 20, 2005).

Failure to request spousal support in complaint. —

As a former wife did not request permanent or lump sum spousal support in her complaint, she waived her right to such support. Stout v. Stout, 2009 Va. App. LEXIS 354 (Va. Ct. App. Aug. 11, 2009).

Review of modification under “ends of justice” exception where objection not properly preserved. —

Where court, while refusing to terminate child support because 18-year-old child was mentally retarded, did reduce the amount of monthly support from $357.50 to $157.50, and where counsel’s objection was insufficient to satisfy the requirement of Va. Sup. Ct. Rule 5A:18, the modification of the child support award was still reviewed under the “ends of justice” exception to Va. Sup. Ct. Rule 5A:18 because the entry of a support order without any written findings as to why the guideline amount was unjust or inappropriate and without justifying the deviation, would not provide an adequate basis for setting support in the future. Miller v. Miller, No. 1935-92-1 (Ct. of Appeals Dec. 28, 1993).

Conclusory guideline departure lacked sufficient detail. —

Trial court’s written finding that application of the statutory “shared custody calculations would seriously impair the [wife’s] ability to maintain minimal adequate housing and provide other basic necessities for the child” was conclusory and lacked sufficient detail to satisfy subsection B of this section, subsection A of § 20-108.2 , and the attendant case law. The statutory considerations which supported the deviation, and their effect on the court’s decision, were neither identified nor explained. Thus, the order provided insufficient written support for the result and precluded a meaningful appellate review of the findings and related award. Pharo v. Pharo, 19 Va. App. 236, 450 S.E.2d 183, 1994 Va. App. LEXIS 664 (1994).

Issue of arrearages moot. —

Whether the trial court erred in awarding child support arrearages to the husband was moot because counsel for the wife acknowledged that the wife had satisfied the child support arrearage judgment by paying the ordered amount in full to the husband; assuming without deciding that the trial court erred in determining the date from which the support arrearage would accrue, the wife could not recoup her payment. Canedo v. Canedo, 2013 Va. App. LEXIS 61 (Va. Ct. App. Feb. 26, 2013).

Child support hearing. —

Because the parties entered into a property settlement agreement that addressed child support and the parties agreed on the amount and duration of child support, the trial court, which incorporated the agreement into the final decree of divorce, was not required to proceed under the provisions of § 20-108.1 and conduct a full child support hearing. Kumar v. Kumar, 2016 Va. App. LEXIS 301 (Va. Ct. App. Nov. 8, 2016).

Decrease in spousal support. —

Because the decrease in spousal support was a known event that was certain to occur at a time certain, it was not error for the trial court to consider and utilize it in crafting its child support order. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Child tax credit. —

Considering the totality of the record, including the parties’ relatively comparable earning capacity, the circuit court did not abuse its discretion in alternating the child tax credit. Kaur v. Dhillon, 2021 Va. App. LEXIS 206 (Va. Ct. App. Nov. 16, 2021).

II.Factors for Consideration.

A.Generally.

Support for other children or family members. —

Decree contained sufficient detail to justify a departure from statutory guidelines, where it recited that departure was appropriate because wife had a child not born of the marriage who had certain medical needs and related expenses. Baxter v. Baxter, No. 2215-98-1 (Ct. of Appeals Aug. 17, 1999).

No credit or offset for other support payments. —

This section does not require the trial court to give a credit or an offset equal to the support a parent pays to support a child from another relationship; it only requires consideration of that fact. Simmons v. Joanne (Simmons) Hairston, 2001 Va. App. LEXIS 145 (Va. Ct. App. Mar. 20, 2001).

Deviation from presumptive amount supported. —

Where the trial judge did not make a specific calculation showing the precise allocation of dollars to the factors used to calculate the deviation, the trial judge made specific reference to the major issue of contention between the parties — the private school tuition for the children — and the amount of deviation had a rational correlation to the amount proved for the tuition payment, the record supported the deviation from the presumptive amount of child support. Wirth v. Wirth, No. 0772-92-1 (Ct. of Appeals May 18, 1993).

Trial court did not err in granting father a $200 reduction in gross monthly income, as a deviation from statutory guidelines, based on his monetary support for other children; nor did court err in refusing to find that father’s work-related expense of purchasing tools warranted further reduction in his gross income. Hutchins v. Carrillo, No. 2674-98-4 (Ct. of Appeals June 22, 1999).

Deviation from child support guidelines requiring the father to pay an additional $200 per month for the oldest daughter’s education expenses and 60% of airline travel for the children for short visits and all of it for extended visits was permissible and not an abuse of discretion. A.O.V. v. J.R.V., 2007 Va. App. LEXIS 64 (Va. Ct. App. Feb. 27, 2007).

Downward deviation of $300 from the child support guidelines was supported by the trial court’s finding that the father was obligated to make monthly payments of $100 into each of the three children’s education savings plans. The trial court also properly considered equitable distribution issues resolved by property settlement agreement and various tax consequences to the parties. Olson v. Olson, 2009 Va. App. LEXIS 6 (Va. Ct. App. Jan. 13, 2009).

There was no abuse of discretion in the trial court’s deviation from the presumptive guideline amount where the mother was voluntarily underemployed and the trial court considered the father’s travel expenses from his job in Oregon. Broadhead v. Broadhead, 2010 Va. App. LEXIS 101 (Va. Ct. App. Mar. 16, 2010).

Circuit court did not abuse its discretion in ordering child support and private school tuition in excess of the support calculated using the guidelines because the evidence supported the court’s findings that the parties established a high standard of living during the marriage and that their child had special needs requiring a private school. Plaisted v. Plaisted, 2014 Va. App. LEXIS 283 (Va. Ct. App. Aug. 19, 2014).

Trial court did not err in deviating from the child support guidelines in order to fashion an appropriate award by not treating the occupational therapy expenses for one of the parties’ children only as unreimbursed medical expenses and categorically excluded from consideration when fashioning a child support award because the child and the mother required, and the occupational therapist provided, additional caretaker and respite care services; the therapist often assisted the child with everything from brushing his teeth to going to bed; and, while the tasks the therapist fulfilled fell under the ambit of therapy in many senses, that did not mean they were not also caretaking and respite care functions. Ridenour v. Ridenour, 72 Va. App. 446, 848 S.E.2d 628, 2020 Va. App. LEXIS 251 (2020).

Deviation from presumptive amount not supported. —

Although the trial court mentioned tax considerations, an equitable distribution award, and the catch-all provision in § 20-108.1 as the basis for a deviation from the child support guidelines, its findings were insufficiently specific for effective appellate review. Olson v. Olson, 2007 Va. App. LEXIS 252 (Va. Ct. App. July 17, 2007).

Trial court erred in allowing a husband a “credit” against his child support obligation for payment of educational expenses on behalf of the child because it failed to make the written findings required by subsection B of § 20-108.1 for deviating from the guideline amount; the trial court was asked to deviate from the guidelines, and it expressly refused to do so, yet, in awarding the husband what it termed a “credit” for the tuition payments the husband had previously made, the trial court effectively reduced the amount of child support as calculated under the guidelines, and thus, whatever the reduction was called, it amounted to a deviation from the guideline amount. Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461, 2011 Va. App. LEXIS 124 (2011).

Calculation of income proper. —

Trial court awarded the correct statutory child support amount based on an accurate calculation of a wife’s income because the trial court based its presumptive child support award calculation on wife’s most recent actual income; the trial court’s finding of the wife’s income was supported by credible evidence in the record because its calculation of her earnings was based only upon her earnings, as demonstrated by her pay stubs. Ranghelli v. Ranghelli, 2019 Va. App. LEXIS 107 (Va. Ct. App. May 7, 2019).

Trial court’s determination of the husband’s income of $21,188 per month was upheld on appeal; there were many complicating factors in this determination, ranging from the husband’s claims of disability, the opinion of his expert that his depression would resolve shortly after trial, and the fact that he continued to receive payments from his employer in 2018 and 2019 in addition to disability payments. Although another fact-finder could have set the income at a different level, the trial court’s decision was reasonable. Morrison v. Morrison, 2020 Va. App. LEXIS 219 (Va. Ct. App. July 28, 2020).

Previously incurred medical expenses are contemplated by guidelines. —

The child support guideline work sheet instructions and the statutory provisions governing child support contemplate the possibility that already-incurred medical expenses will increase a supporting parent’s obligation. Carter v. Thornhill, 19 Va. App. 501, 453 S.E.2d 295, 1995 Va. App. LEXIS 53 (1995).

Parent misconduct not deviation ground. —

A deviation from the presumptive amount of support must be in the best interests of the child. The statutory grounds for deviation from the presumptive amount do not include punishing a parent for misconduct. Therefore, the trial court did not abuse its discretion in declining to increase the husband’s support obligation because of his alleged misrepresentation of income. Bourne v. Frey, 1994 Va. App. LEXIS 747 (Va. Ct. App. Dec. 20, 1994).

The expense of a private tutor for a child with a learning disability results from a “mental condition of the child” and is, therefore, a factor to be considered in determining whether to deviate from the presumptive amount of child support. Kogon v. Keenan, No. 0603-92-4 (Ct. of Appeals April 27, 1993).

Failure to provide adjustment in support upon high school graduation. —

Trial court erred by ceasing support because master’s degree was to be awarded. —

Although there may be an expectation that upon being awarded a master’s degree wife may obtain employment that will entitle husband to seek relief pursuant to the provisions of § 20-109 , because the record in the instant case does not assure that wife will be so fortunate, the trial court erred when it ordered that wife’s right to spousal support would cease upon the expiration of twelve months from the date of the decree. Hauger v. Hauger, No. 1887-93-1 (Ct. of Appeals Feb. 28, 1995).

Wife’s assertion that the court erred by requiring her to pay her son’s tuition expenses out of the child support award was without merit. Implicit in the statutory scheme is that educational expenses are included in the presumptive amount of child support as calculated under the Code of Virginia. In this case, because the trial court chose not to deviate from the presumptive amount of child support, no findings of fact were necessary. Nevertheless, the record showed that the court was cognizant of both the magnitude and continuing nature of the expenses. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, 10 Va. Law Rep. 1394, 1994 Va. App. LEXIS 315 (1994).

Implicit in the child support statutory scheme is that educational expenses are included in the presumptive amount of child support as calculated under the Code. Challoner v. Challoner, 1997 Va. App. LEXIS 202 (Va. Ct. App. Apr. 1, 1997).

Private school tuition factors. —

In determining whether requiring a parent to pay for a child to transfer to a more expensive private school is justified, relevant factors include: the availability of satisfactory public schools, attendance at private school prior to the separation and divorce, special emotional or physical needs, religious training and family tradition. Challoner v. Challoner, 1997 Va. App. LEXIS 202 (Va. Ct. App. Apr. 1, 1997).

A parent may be required to pay for private educational expenses, even though such expenses exceed the guidelines, when there is a demonstrated need for the child to attend private school and the parent has the ability to pay; in making this determination, the trial court must consider factors such as the availability of satisfactory public schools, the child’s attendance at private school prior to the separation and divorce, the child’s special emotional or physical needs, religious training and family tradition. Joynes v. Payne, 35 Va. App. 386, 545 S.E.2d 561, 2001 Va. App. LEXIS 235 (2001).

Trial court did not abuse discretion when it declined to deviate from the child support guidelines to include the cost of private school tuition because, assuming the husband had the ability to pay such costs, the wife did not present evidence showing an educational, emotional, or developmental need to continue private school education for the children, and her contention that requiring them to attend public school would disrupt their education was not supported by the evidence. Lesesne v. Zablocki, 2007 Va. App. LEXIS 6 (Va. Ct. App. Jan. 9, 2007).

Although a child’s educational expenses are implicitly included in the presumptive amount of child support pursuant to § 20-108.2 , the trial court did not err in not including the cost of the children’s private school tuition in its calculation of child support that the trial court ordered the husband to pay. The parties agreed that there was a demonstrated need for their two children to attend private school and the husband conceded at trial in the parties’ divorce case that the husband could afford to pay the school’s tuition. Eisert v. Eisert, 2008 Va. App. LEXIS 134 (Va. Ct. App. Mar. 18, 2008).

Parties did not agree that private school was necessary, nothing showed a need for the children to attend private school, and there was sufficient evidence to support the decision to decline to deviate from the child support guidelines to include the cost of the children’s private school tuition; there was no abuse of discretion, as the trial court properly considered both the children’s need for private school and the mother’s ability to pay tuition. Oley v. Branch, 63 Va. App. 681, 762 S.E.2d 790, 2014 Va. App. LEXIS 305 (2014).

Standard of living. —

In cases in which the child support award begins and ends during the year or two before the child turns eighteen, the cost averaging assumption may be inequitable, and a pure guideline based award can be adjusted if it appears to be unjust or inappropriate; thus it is reasonable for a trial court to take into account a payee parent’s testimony about the age related costs, and expenses naturally related to a child of that age can be taken into account when considering the standard of living factor. Saxon v. Lesueur, 2013 Va. App. LEXIS 379 (Va. Ct. App. Dec. 17, 2013).

Father did not show that the trial court abused its discretion in issuing a modified child support award because it accepted as credible the mother’s testimony about the unique expenses associated with their son’s activities during his last year of high school, and there was no evidence that the expenses were extravagant; the increased expenses would not be a recurring financial burden, and thus, the trial court imposed an award that, prospectively, would last only six months. Saxon v. Lesueur, 2013 Va. App. LEXIS 379 (Va. Ct. App. Dec. 17, 2013).

Needs, resources and equities of parents must be considered. —

While the children’s best interests are of paramount importance in the analysis of whether the presumptive amount from the guidelines would be unjust or inappropriate, the needs and resources of the parents and their equities are factors under this section and former subdivision 2 of § 20-107.2 which must be considered in deciding whether to vary from the presumptive amount or whether to ratify, affirm and incorporate or to reject the child support provisions of a separation agreement. Oliveri v. Mardula, No. 1690-90-4 (Ct. of Appeals, February 25, 1992) (decided under prior law).

Trial court did not abuse its discretion in ordering a husband to pay spousal support to the wife, after it carefully considered the wife’s employment history, her current salary, the husband’s income, the special needs of the parties’ children, and the effect that had on the wife’s employment options. Jones v. Campanelli, 2005 Va. App. LEXIS 33 (Va. Ct. App. Feb. 1, 2005).

Income tax deduction exception. —

There was no error in awarding a wife the Income Tax Deduction Exception because the husband was voluntarily unemployed and had not been paying taxes; the wife was the custodial parent and did not need the husband to execute any waivers, and she previously claimed the children on her taxes because the husband was not paying income tax. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

Not all factors were properly considered. —

Factors properly considered. —

Trial court did not abuse its discretion in awarding a wife spousal support because it was cognizant of the facts of the case and made a reasonable award of spousal support based on those facts and controlling law; the trial court acknowledged the facts supporting the husband’s claim that the wife’s negative contributions cost the parties significant sums of money in making its determination and also noted the husband’s income and the wife’s educational background and history of mental health difficulties. Showalter v. Showalter, 2009 Va. App. LEXIS 78 (Va. Ct. App. Feb. 17, 2009).

Trial court did not abuse its discretion in ordering the husband to pay permanent spousal support considering the lengthy 30-year marriage, that the husband had been the primary wage earner while the wife raised their children, that the parties moved several times to further the husband’s career goals, and that the husband was a college graduate while the wife only graduated high school. Even though the husband retired at a normal retirement age, his decision to move to Florida with another woman greatly impacted his ability to support the wife. Harber v. Harber, 2009 Va. App. LEXIS 303 (Va. Ct. App. July 7, 2009).

Trial court did not err in terminating a wife’s spousal support award because the husband provided full and clear disclosure regarding his ability to meet his support obligations; the husband provided bank statements, multiple income and expense statements, several years of tax returns, and his retirement accounts, life insurance, and debts, and there was nothing in the record to suggest that his financial obligations and debts were a result of his neglect or misconduct. Lanier v. Lanier, 2014 Va. App. LEXIS 362 (Va. Ct. App. Nov. 4, 2014).

Circuit court properly increased a father’s child support obligation because the court followed the statutory procedures to calculate the presumptive amount of child support, the court deviated downward based on the statutory factors, and the father’s inheritance was a substantial financial resource that was readily available and was clearly in the children’s best interest since it contemplated consistent and ongoing support while they remained dependents. Da'mes v. Da'mes, 74 Va. App. 138, 867 S.E.2d 77, 2022 Va. App. LEXIS 2 (2022).

Spousal support and child support may not be set off. —

Needs of child and ability of parents to provide for needs. —

In any judicial proceeding to determine child support, the court must consider all relevant evidence concerning the needs of the child and the ability of the parents to provide for those needs. Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811, 9 Va. Law Rep. 789, 1993 Va. App. LEXIS 6 (1993).

Cost of living. —

Where the trial court found that the cost of living in the Kingdom of Jordan was substantially lower than in Virginia, and that as such, the guideline level of $390 per month was unjust and inappropriate, the trial court’s deviation from the guidelines amount was supported where, in addition to the cost of living differential, it did not impose a lower standard of living on the child, reflected no abuse of discretion, was authorized by subsection B of § 20-108.1 , provided appropriately for the child, and was affordable by the father. Jariri v. Div. of Child Support Enforcement, 2004 Va. App. LEXIS 555 (Va. Ct. App. Nov. 16, 2004).

A contract between a husband and wife cannot prevent the court from exercising its power to modify child support awards. Alexander v. Alexander, 12 Va. App. 691, 406 S.E.2d 666, 8 Va. Law Rep. 34, 1991 Va. App. LEXIS 153 (1991).

Prerequisite to use of written agreement variance provision. —

Although subsection B of this section authorizes a trial court to deviate from the presumptive guideline amount upon consideration of a written agreement between the parties which includes the amount of child support, this variance provision can be considered only after the procedure mandated by the statute is followed, that is, only after a calculation of the presumptive amount is made. Saleem v. Saleem, 26 Va. App. 384, 494 S.E.2d 883, 1998 Va. App. LEXIS 26 (1998).

Deviation from presumptive amount not supported when finding that mother had voluntarily foregone higher-paying employment could only be made by supplementing the evidence presented with surmise and conjecture. Niemiec v. Commonwealth, Dep't of Social Servs. ex rel. Niemiec, 27 Va. App. 446, 499 S.E.2d 576, 1998 Va. App. LEXIS 304 (1998).

Trial court erred in not making written findings as it was required to do by statute when it increased the father’s child support obligation in order to pay for his children’s attendance at a private, parochial high school as the trial court was required to state why the presumptive child support guideline was unjust or inappropriate under the circumstances before modification could be allowed. Newland v. Newland, 2002 Va. App. LEXIS 152 (Va. Ct. App. Mar. 12, 2002).

Res judicata bars reconsideration of award where no material change in circumstance. —

Where no material change in circumstance has occurred since the last modification hearing in which the support guidelines presumably had been considered, the principles of res judicata bar the trial judge from reconsidering the child support award. Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811, 9 Va. Law Rep. 789, 1993 Va. App. LEXIS 6 (1993).

Provision for support in separation agreement. —

Although both this section and § 20-108.2 serve to provide a rebuttable presumption of the amount of child support to be paid, a trial judge may determine that the contractual amount of child support is fair and equitable without requiring evidence and without determining the precise presumptive amount of support. Moreno v. Moreno, 24 Va. App. 227, 481 S.E.2d 482, 1997 Va. App. LEXIS 80 (1997).

As neither party sufficiently showed that error resulted from the circuit court’s award of contractual spousal support to the wife, as contrary to the evidence or as inadequate, and said court correctly found insufficient contractual reciprocity to relieve the husband of his obligation to make the annual $10,000 payment, the award was affirmed. Goyal v. Gillespie, 2008 Va. App. LEXIS 67 (Va. Ct. App. Feb. 12, 2008).

Pendente lite support award. —

Because a wife’s income and expense statement included a pendente lite support award, her need for spousal support was actually greater than what the trial court awarded her when the pendente lite award was subtracted from her income and expense statement; therefore, she was properly awarded $1,000 per month in spousal support. Howard v. Howard, 2009 Va. App. LEXIS 116 (Va. Ct. App. Mar. 17, 2009).

Financial resources. —

The “financial resources” of a parent, whether incarcerated or not, include the value of any assets and any potential income from those assets. To analyze this issue, a court must first determine the presumptive amount of support based upon the parents’ income using the support guidelines. If the court finds that the obligor possesses assets that currently produce or must be liquidated and invested in order to produce income, the court should consider a deviation from the presumptive amount and determine how much asset income will be attributed to the parent in calculating his child support obligation. L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580, 1995 Va. App. LEXIS 153 (1995), cert. denied, 517 U.S. 1124, 116 S. Ct. 1360, 134 L. Ed. 2d 527, 1996 U.S. LEXIS 2241 (1996).

Trial court did not abuse its discretion in denying a former husband’s petition to reduce his spousal support obligation; its use of his three-year income average was a realistic method of assessing his earnings, as his bonuses and stock options varied from year to year and job to job. Sewell v. Sewell, 2013 Va. App. LEXIS 219 (Va. Ct. App. July 30, 2013).

Non-recurring capital gains. —

The fact that capital gains realized by one spouse were “one-time” and not a recurring event was not, in itself, a basis for requiring the court to deviate from the presumptive amount. Giambanco v. Giambanco, 2001 Va. App. LEXIS 335 (Va. Ct. App. June 12, 2001).

No requirement to take into account father’s transportation costs. —

Trial court did not err in refusing to deviate from child support guidelines to take into account father’s transportation costs. Vissicchio v. Vissicchio, 27 Va. App. 240, 498 S.E.2d 425, 1998 Va. App. LEXIS 239 (1998).

Life insurance. —

Order directing a husband to designate the parties’ minor child as beneficiary of his life insurance policy was affirmed because, under subsection D of § 20-108.1 , the trial court had the authority to enter the order, and, as the husband provided no indication that the trial court abused its discretion, the order was presumed correct; the burden was upon the husband to provide a record which substantiated his claim of error. Watson v. Watson, 2009 Va. App. LEXIS 323 (Va. Ct. App. July 21, 2009).

Effect of unemployment and support obligations. —

Circuit court did not abuse its discretion by granting a husband’s motion to reduce spousal support based on a material change in circumstances because it heard expert testimony that the husband would not qualify for his former job, and the husband provided documentation on each job for which he applied along with the requirements for each job. LaBrie v. LaBrie, 2017 Va. App. LEXIS 344 (Va. Ct. App. Dec. 27, 2017).

Voluntary assumption of additional financial obligations on behalf of his new family did not justify a reduction in the amount of child support paid by the father. Nichols v. Nichols, No. 1441-97-4 (Ct. of Appeals April 28, 1998).

Rental income properly excluded. —

A court did not err in finding that a husband had no net rental income attributable to a condominium for purposes of child support where the husband presented evidence that the expenses for the condominium mortgage, homeowner’s fees, maintenance, repairs and the like exceeded the amount collected in rent. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Rental income improperly excluded. —

A court erred in failing to include rental income when calculating a husband’s spousal support obligation where the husband claimed no reasonable business expenses associated with the property. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Mother’s decision to forego higher income in order to diminish child care expenses, particularly for the parties’ eldest daughter, was a cost to mother, and fell within the statutory factors which the court may consider in order to rebut the guidelines’ presumptively correct amount of child support. Myers v. Myers, No. 0330-94-2 (Ct. of Appeals Sept. 20, 1994).

Where father pursued other reasonable employment and salary diminished, no reduction in support obligation. —

Where father’s income had diminished due to a voluntary change of employment, and where chancellor, in the exercise of judicial discretion, implicitly held that when the father who was under court order to pay a certain sum for child support, which he was able to pay given his employment, chose to pursue other employment, albeit a bona fide and reasonable business undertaking, the risk of his success at his new job was upon the father, and not upon the children, the chancellor did not impose an erroneous standard of proof in denying the father a reduction in his support obligation. Antonelli v. Antonelli, 242 Va. 152 , 409 S.E.2d 117, 8 Va. Law Rep. 906, 1991 Va. LEXIS 126 (1991).

B.Imputed Income.

Voluntary employment decisions. —

Trial court erred in determining the amount of child support the father owed to the mother, in calculating the presumptive amount of child support, by using the imputed income attributed to the father as a result of the father’s voluntary underemployment; the trial court instead should have used the father’s actual gross income, which differed significantly from the imputed income attributed to the father. Ericson v. Ericson, 2007 Va. App. LEXIS 258 (Va. Ct. App. July 3, 2007).

Decision to impute a father’s previous income to him was not an abuse of discretion as his supervisors had not decided to discharge him, his termination was voluntary, and his decision to leave his job without having secured other employment suitable to meet his child support obligation displayed a careless disregard of his child support obligation; the father did not show a change in circumstances under subdivision B 3 of § 20-108.1 to support a reduction in his child support obligation. Delaney v. Delaney, 2007 Va. App. LEXIS 478 (Va. Ct. App. Dec. 27, 2007).

In denying a former husband’s petition to reduce his spousal support obligation, the trial court did not abuse its discretion in finding that he voluntarily left his job for a lower paying job, as he offered no support for his claim that a “tumultuous work environment” and the “threat of losing his job” influenced his decision to resign. Sewell v. Sewell, 2013 Va. App. LEXIS 219 (Va. Ct. App. July 30, 2013).

Evidence was sufficient to support the trial court’s finding that the husband had a voluntary reduction in his income and lost his reliable source of income such that the trial court did not err in denying his motion to modify support. Manson v. Manson, 2013 Va. App. LEXIS 395 (Va. Ct. App. Dec. 27, 2013).

Trial court did not err by denying the father’s motion to modify his child support obligation because the evidence supported the trial court’s finding that the father was voluntarily underemployed, as it noted that he chose not to accept a $170,000 severance package from his previous employer and instead voluntarily took a job earning $120,000 per year, and it considered the evidence the father presented. Nashnoush v. Yousef, 2017 Va. App. LEXIS 190 (Va. Ct. App. Aug. 1, 2017).

Circuit court did not abuse its discretion by finding that the wife was voluntarily underemployed, imputing income to her, declining to impute income to the husband, and terminating the spousal support award because it found that the wife had made no efforts to find employment for two years even though it had been available to her in the past and that the husband’s payment of spousal support for the last 22 months was sufficient. Kaur v. Dhillon, 2021 Va. App. LEXIS 206 (Va. Ct. App. Nov. 16, 2021).

A father seeking to reduce a court ordered child support award has the burden to prove by a preponderance of the evidence that he is not voluntarily unemployed or voluntarily under employed. Furman v. Furman, No. 0001-94-4 (Ct. of Appeals Jan. 10, 1995).

A parent’s incarceration may be found to constitute voluntary unemployment and may consequently preclude a reduction of a support obligation based on a loss of income resulting from that incarceration. Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658, 1997 Va. App. LEXIS 525 (1997).

Income imputed while incarcerated for failing to pay support. —

A trial court properly found that a father’s lack of employment was voluntary and imputed income to him for the period during which the father had been incarcerated for failing to pay his court-ordered child support obligations. Mahoney v. Mahoney, 2001 Va. App. LEXIS 108 (Va. Ct. App. Mar. 6, 2001).

Voluntary underemployment is not an absolute bar to judicial adjustment of child support if other material changes in circumstances have occurred that are not the fault of the movant. The guidelines include voluntary underemployment as only one of several factors to be considered in adjusting the presumptive child support amount. Barnhill v. Brooks, 15 Va. App. 696, 427 S.E.2d 209, 9 Va. Law Rep. 869, 1993 Va. App. LEXIS 28 (1993).

Leaving employment on own volition. —

The risk of reduction in income as a result of a parent’s intentional act such as voluntarily leaving paid employment, even if done in good faith, is insufficient grounds for reducing the amount of support due under a pre-existing order. Hamel v. Hamel, 18 Va. App. 10, 441 S.E.2d 221, 10 Va. Law Rep. 1051, 1994 Va. App. LEXIS 104 (1994).

Trial court’s decision not to impute income to a divorced mother when the mother quit the mother’s second job was not plainly wrong or unsupported by the evidence because, although the mother admitted that the mother partly was motivated to leave the second job in that it could increase the mother’s support obligation, the mother offered valid reasons for quitting the second job, including the employer’s leave policy and the mother’s child care concerns. Illetschko v. Illetschko, 2017 Va. App. LEXIS 234 (Va. Ct. App. Sept. 12, 2017).

Voluntary underemployment found. —

In a case where a husband’s monthly child support obligation was reduced, but the trial court awarded his wife spousal support, the trial court found that a material change occurred in the husband’s employment circumstances and that he was not voluntarily unemployed; however, the trial court found that he was voluntarily underemployed since: (1) after losing his job, he spent only two of the next 13 months searching full-time for employment befitting his qualifications; (2) he presented no evidence that he looked for suitable work during the initial two-month period when he was receiving unemployment benefits; (3) he admitted that the job he obtained as a car salesman did not permit him time to look for suitable work; (4) after leaving his car salesman job, he operated his own consulting company, rather than concentrating solely on looking for a job; and (5) although a witness for him testified that he lost his original job to down-sizing, the same witness testified that his former employer had hired other sales representatives after he left and that there were jobs out there. Thus, for purposes of determining his child and spousal support obligations, the trial court did not abuse its discretion in imputing to the husband his annual earned income from the time the original support order was entered. McMartin v. McMartin, 2006 Va. App. LEXIS 41 (Va. Ct. App. Jan. 31, 2006).

Based on a former husband’s voluntary underemployment, his prior employment history, and the declining status of his businesses, a trial court did not abuse its discretion under subdivision B 3 of § 20-108.1 when it only partially reduced the amount of income imputed to him for purposes of his request to reduce his spousal and child support obligations; the husband only showed a partial material change in circumstances. Assari v. Assari, 2011 Va. App. LEXIS 39 (Va. Ct. App. Feb. 8, 2011).

Father’s fault for losing job amounted to voluntary underemployment. —

Circuit court did not err in finding that the father was voluntarily underemployed and imputing income to him; he was at fault for losing his job because he failed to sufficiently correct issues raised in 2014. Parham v. Parham, 2018 Va. App. LEXIS 262 (Va. Ct. App. Oct. 9, 2018).

Voluntary underemployment not found. —

Although appellee’s 1993 income was 10 percent less than his 1991 and 1992 incomes because he and the medical group to which he belonged employed an additional member and voluntarily reduced their workloads and salaries, the trial court did not err in finding that the appellee was not voluntarily underemployed in view of his substantial earnings and the justifiable decision of the members of the medical group to employ an additional member and reduce their workload. Squires v. Squires, No. 1058-94-2 (Ct. of Appeals Feb. 21, 1995).

Trial court did not err in declining to impute income to a mother on the ground that she was voluntarily under-employed because it followed the procedure set out by the legislature, and the mother’s reduced salary still provided a generous income; the record presented numerous reasons the trial court could have concluded the mother’s decision was both reasonable and in good faith. Murphy v. Murphy, 65 Va. App. 581, 779 S.E.2d 236, 2015 Va. App. LEXIS 358 (2015).

Voluntary unemployment. —

Trial court did not err in terminating a wife’s spousal support award because it applied the correct standard and properly determined that the husband was not voluntarily unemployed; the husband’s training and experience were limited to road construction, and he did not have a college degree. Lanier v. Lanier, 2014 Va. App. LEXIS 362 (Va. Ct. App. Nov. 4, 2014).

Trial court did not abuse its discretion in imputing income to a husband for purposes of calculating the child support guidelines and for determining spousal support and unreimbursed medical expenses because noted that the husband was unemployed due to his own actions, and it used the husband’s prior salary to impute income. Garrett v. Garrett, 2017 Va. App. LEXIS 104 (Va. Ct. App. Apr. 18, 2017).

Factors to be considered for imputing income. —

In determining whether to impute income, the trial court must consider the parties’ earning capacity, financial resources, education and training, ability to secure education and training, and other factors relevant to the equities of the parents and the children. Tatum v. Tatum, 2000 Va. App. LEXIS 789 (Va. Ct. App. Dec. 5, 2000).

It was error for a trial court to impute income from a job held by a father when an original child support award was entered without considering whether the father’s current efforts to secure employment closer to where his children resided, at a comparable income level, were sufficient to meet his burden of proving that he was not voluntarily underemployed. The trial court had to consider all of the relevant factors, particularly whether the father’s efforts to find a position in the area were reasonable and whether other positions in the area were available to him, using his education and experience, at a pay level comparable to his former positions. Broadhead v. Broadhead, 51 Va. App. 170, 655 S.E.2d 748, 2008 Va. App. LEXIS 40 (2008).

Trial court considered a wife’s earning capacity when it awarded her spousal support because it specifically stated that the circumstances did not permit the wife to have a different job or earn more income; if the wife got a different job, she would probably need to buy a car, which would increase her expenses, and it was in the children’s best interests for their routine to remain as closely as possible as it was during the marriage. Sitoula v. Sitoula, 2014 Va. App. LEXIS 196 (Va. Ct. App. May 20, 2014).

Trial court erred in refusing to impute income to a father because the father was voluntarily unemployed due to his incarceration, the father made no argument, nor could he, that his incarceration was an employment decision undertaken in good faith or was otherwise reasonable, the mother raised the father’s voluntary unemployment as an issue, the court was statutorily required to consider all evidence presented relevant to how much income should be imputed to the father, and the father’s recent past earnings were not based upon speculation or conjecture, but rather reasonably projected what amount he could have been anticipated to earn had he not become voluntarily unemployed. Niblett v. Niblett, 65 Va. App. 616, 779 S.E.2d 839, 2015 Va. App. LEXIS 375 (2015).

Cost of day care. —

Evidence supported the figures that the trial court on remand used to impute income to the mother in calculating the father’s child support obligation in a divorce case. The trial court was required to consider the factors in § 20-108.1 and did not err in accepting the mother’s evidence regarding the cost of day care for all of the children as a deductible expense that the mother would need to pay if the mother were teaching because the trial court had the discretion to weigh such a factor as the equities of the case dictated. Barrett v. Commonwealth, Dep't of Soc. Serv., Div. of Child Support Enforcement ex rel. Barrett, 2008 Va. App. LEXIS 210 (Va. Ct. App. Apr. 29, 2008).

When income may be imputed. —

A trial court has the discretion to impute to either or both the custodial or noncustodial parent who is voluntarily unemployed, provided that income may not be imputed to a custodial parent except when the child is in school or child care services are available. 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).

Trial court did not err in refusing to impute income to wife based on higher paying job she had held prior to moving to area. Sessoms v. Myer, 1999 Va. App. LEXIS 297 (Va. Ct. App. May 25, 1999).

In declining to impute income to mother, trial court erred in relying on parties’ agreement that wife would be a full-time mother. Silberblatt v. Silberblatt, 1999 Va. App. LEXIS 434 (Va. Ct. App. July 13, 1999).

It was error for the trial court to impute to the husband a total income four times the amount he reported as his actual income, when determining his child support obligation, under subdivision B 3 of § 20-108.1 , when there was no evidence that he had ever earned that amount or had recently left a job paying a similar amount or that jobs were available which would generate that amount of income. Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299, 2002 Va. App. LEXIS 642 (2002).

Because a husband failed to prove that the changes in his chosen field precluded him from earning sufficient income to justify a spousal support award, the trial court did not err by imputing sufficient income to him to continue the spousal support payments or by awarding attorney fees to the wife. Dickover v. Seaton, 2006 Va. App. LEXIS 215 (Va. Ct. App. May 16, 2006).

Trial court concluded that wife’s tax returns in 2017 and 2018 did not accurately reflect her salary in those years, and based on the record, including evidence of wife’s earning capacity, as she was a homemaker for years raising six children, the trial court was not plainly wrong in imputing income of only $25,000 to her. Chaudhry v. Chaudhry, 2020 Va. App. LEXIS 27 (Va. Ct. App. Jan. 28, 2020).

The trial court shall impute income to a custodial parent who is voluntarily unemployed or underemployed where the age of the child and circumstances permit the custodial parent to be gainfully employed. 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).

Trial court did not err in imputing income to father based on his salary prior to leaving firm to open his own office; nor was there error in court’s decision to use wife’s actual earnings, rather than impute to her a potential increase in earnings. Alberger v. Alberger, 1999 Va. App. LEXIS 351 (Va. Ct. App. June 15, 1999).

Trial court not rquired to impute income. —

To the extent the court of appeals has previously stated or implied that a trial court must impute income in any circumstance where a parent has voluntarily taken a position with a reduced salary, without regard for the good faith and reasonableness of the decision, or other factors affecting the best interests of the children, those holdings are superseded by statutory amendment. Murphy v. Murphy, 65 Va. App. 581, 779 S.E.2d 236, 2015 Va. App. LEXIS 358 (2015).

2006 amendments plainly supersede any “mandatory imputation” rule; the law does not require a trial court to impute income in all cases of voluntary under-employment, as this would usurp the discretion expressly granted to the trial court by the legislature. Murphy v. Murphy, 65 Va. App. 581, 779 S.E.2d 236, 2015 Va. App. LEXIS 358 (2015).

Good faith and reasonableness of underemployment. —

Although a judge need only make written findings if he or she elects to impute income, in considering “relevant evidence,” a judge must consider not only if a party is voluntarily underemployed, but also the good faith and reasonableness of the party’s employment decision. Imputation, therefore, cannot be mandatory in all cases of voluntary underemployment, as that would prevent a judge from performing this inquiry. Murphy v. Murphy, 65 Va. App. 581, 779 S.E.2d 236, 2015 Va. App. LEXIS 358 (2015).

Income may not be imputed to custodial parent who stays home to care for a child, if the child is not in school, child care services are not available and the cost of such child care services are not included in the computation; therefore, income may be imputed if: (1) the evidence reveals that the child or children are in school; or (2) child care services are available and the cost of such child care services may be determined. Brody v. Brody, 16 Va. App. 647, 432 S.E.2d 20, 9 Va. Law Rep. 1601, 1993 Va. App. LEXIS 221 (1993).

Trial court did not err in refusing to impute income to a wife for child support purposes under subdivision B 3 of § 20-108.1 as: (1) although the wife had a college education and worked earlier in the marriage, earning $30,000 per year at her last full-time job, she had not worked in 10 years in order to care for the parties’ children, and she needed two years of training to become a teacher; (2) there was no evidence of recent past earnings upon which to impute income to the wife; (3) there was no evidence of available child care services, or their cost; and (4) the parties had agreed that the wife would stay home with the children until they entered school. Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008).

Interest on attached accounts imputed to father. —

The court properly considered interest on several large accounts owned by the father in determining the amount of child support, notwithstanding fact that the mother had attached those accounts for possible satisfaction of a judgment in a related civil tort action filed on behalf of the parties’ son, as the attachment represented a mere claim against those accounts and, in the absence of a showing that the attachment had been decided adverse to the father, the interest income was imputable to him. Sharp v. Wilson, No. 0469-97-4 (Ct. of Appeals June 2, 1998).

Income was properly imputed to the father where: (1) he was an articulate, educated professional, with marketable skills evidenced by recent, well compensated employment; (2) although without work at the time of the hearing, he had been employed during the preceding year pursuant to a contract which had ended in accordance with its terms only several weeks previously; (3) he offered little evidence of a job search either in anticipation of or after termination; and (4) the amount of income imputed to him was less than his most recent earnings. Ewing v. Ewing, No. 1461-97-1 (Ct. of Appeals August 11, 1998).

Because the appellate record amply supported the trial court’s finding that a husband was voluntarily underemployed, as well as the amount of income imputed to him, given both his current projected salary when coupled with his pre-2002 income history, such was not reversed on appeal. Swallow v. Swallow, 2007 Va. App. LEXIS 294 (Va. Ct. App. Aug. 7, 2007).

Because the evidence was sufficient to support an imputation of income to the husband and an award of the wife’s expert witness fees, and because the trial court’s isolated statement regarding the parties’ lifestyle did not affect the spousal support award, the evidence was sufficient to support the trial court’s order. Armar v. Armar, 2011 Va. App. LEXIS 218 (Va. Ct. App. June 28, 2011).

There was no abuse of discretion by the trial court’s imputation of income to a husband upon finding that he was voluntarily unemployed, as he did not offer medical evidence to support his claim that he was disabled; rather, it was determined that although he had a somewhat debilitating condition, he was able to work, such that federal minimum wage income was imputed to him. Patron v. Furtado, 2012 Va. App. LEXIS 382 (Va. Ct. App. Nov. 27, 2012).

Income was improperly imputed. —

Trial court erred in imputing income to the wife from two residential properties owned by a trust, as the wife had a future beneficial interest in the trust but had not yet inherited any property. Montgomery v. Montgomery, 2017 Va. App. LEXIS 303 (Va. Ct. App. Dec. 5, 2017).

Trial court did not impute income. —

Trial court did not err in its calculation of the father’s child support obligation; based on the evidence, the trial court concluded that his last known salary of approximately $141,000 constituted an accurate reflection of his worth, and the trial court did not impute income, but instead weighed the evidence to determine his income. Wilson v. Slivka, 2018 Va. App. LEXIS 85 (Va. Ct. App. Apr. 3, 2018).

A spouse’s voluntary underemployment may serve as a basis for the trial court to impute income to the underemployed spouse when calculating child support. Howard v. Howard, 2000 Va. App. LEXIS 518 (Va. Ct. App. July 18, 2000).

Imputation of income denied. —

The court properly refused to impute income to the mother on the father’s petition to recalculate child support where: (1) in a prior order, the trial court encouraged the mother to seek full-time employment, but she presented evidence that her part-time employment schedule of four different jobs reduced or eliminated certain expenses, such as child care, which she would incur working full-time, and that she would need to earn substantially more money to cover those increased expenses and still receive the same net income; and (2) the mother worked approximately the same number of part-time hours as she worked at the time of the previous hearing. Nichols v. Nichols, No. 1441-97-4 (Ct. of Appeals April 28, 1998).

Record contained no evidence that income should be imputed to the wife where no evidence proved the wife had been offered a higher paying position or that it would be more economical for her to obtain a different position; although the husband attempted to testify as to job opportunities available in the wife’s field, the judge excluded the evidence because the husband did not qualify as an expert, and determined that the husband’s testimony concerning postings on the Internet of job opportunities was inadmissible hearsay. Hanyok v. Hanyok, 2002 Va. App. LEXIS 468 (Va. Ct. App. Aug. 13, 2002).

Spousal income from more than one job. —

Depending upon the circumstances peculiar to each case, particularly where there is a history of a spouse having had two jobs, the trial court may find it appropriate to consider imputing to a spouse income from more than one job. Cochran v. Cochran, 14 Va. App. 827, 419 S.E.2d 419, 9 Va. Law Rep. 1, 1992 Va. App. LEXIS 196 (1992).

CIRCUIT COURT OPINIONS

Award retroactive to date petition filed. —

Circuit court agreed with the mother and determined that subsection B of § 20-108.1 required that the child support award be retroactive to April 7, 2009. That was the date when the mother filed a petition for child support in the Juvenile and Domestic Relations District Court and she correctly relied upon the recent “with any court” amendment to subsection B of § 20-108.1 .Miller v. Miller, 2010 Va. Cir. LEXIS 4 (Loudoun County Feb. 2, 2010).

Presumption of guidelines correctness. —

Amount of child support calculated pursuant to the child support guidelines was presumed to be correct and, since the wife did not rebut that presumption, that amount would be used to calculate the child support the husband should be paying to the wife. Wickham v. Wickham, 2004 Va. Cir. LEXIS 10 (Roanoke County Mar. 12, 2004).

After the court applied the provisions of § 20-108.2 to the evidence concerning the parties’ respective income levels, the husband’s income averaging figures were accepted and he was ordered to make arrearage payments on a monthly basis; however, based on the factors in this section, the court declined to deviate from the presumptive amount of support for his current child support payments. Christoforatos v. Christoforatos, 2004 Va. Cir. LEXIS 123 (Orange County July 8, 2004).

Where a husband was unemployed, the presumptive amount of child support under subsection B of § 20-108.2 was determined; upon consideration of the factors under § 20-108.1 , the evidence did not support any deviation from the guidelines. Ofori v. Ofori, 2004 Va. Cir. LEXIS 131 (Fairfax County May 17, 2004).

When an appellate court remanded a divorce case to a trial court to recalculate child support, the presumption in §§ 20-108.1 and 20-108.2 that the child support guidelines stated the correct child support amount was accepted because the presumption was not rebutted. West v. West, 2010 Va. Cir. LEXIS 126 (Roanoke County Dec. 16, 2010).

Downward departure was not warranted because the presumption in favor of the guidelines had not been rebutted. Rieger v. Rieger, 90 Va. Cir. 29, 2015 Va. Cir. LEXIS 12 (Fairfax County Feb. 9, 2015).

Modification warranted. —

A court found that modification of the presumptive amount of child support was warranted because the parties’ incomes, work-related child care expenses, and the cost of health insurance for the child had not remained constant. Athey-Clark v. Clark, 2005 Va. Cir. LEXIS 113 (Loudoun County Aug. 9, 2005).

Although the court held that the $600,000 inheritance the father received was income, that he also received $147,410.85 from the sale of a rental property in May 2020, that his monthly gross income for purposes of the distinct calculation of income was $20,193.75, that the parties total combined gross income was $23,170.00, and that the new adjusted child support monthly guideline amount was $2,247 for two children, the court found that an award of $2,247 would be unjust, and the court would order child support to be paid at the rate of $795 per month. D'Ames v. D'Ames, 2021 Va. Cir. LEXIS 33 (Culpeper County Feb. 21, 2021).

Termination warranted. —

In a case in which an ex-husband sought modification of both his spousal support and child support obligation under the last support order, which was a consent decree, his obligation to pay spousal support terminated by operation of law on the date that his ex-wife remarried. The ex-wife’s remarriage constituted a material change. Bruley v. Galer, 2009 Va. Cir. LEXIS 105 (Loudoun County Oct. 5, 2009).

Deviation from presumptive amount not supported. —

Father was not entitled to a reduction in his presumed monthly child support obligation because he failed to meet the burden of showing how and why the deviation should be allowed, in that the extra expenses that the father had noted, including expenses relating to caring for his wife’s children and his wife’s mother, who were not family members under subdivision B 1 of § 20-108.1 , and the fact of the financial well-being of the child’s custodian, were not relevant to determining the father’s support obligation to his child. While the father alleged that there was uncertainty surrounding his overtime pay, income from overtime employment is included within the definition of “gross income” and, thus, was properly included in calculating the presumptive amount. Commonwealth v. Lindenfeld, 2005 Va. Cir. LEXIS 141 (Richmond Jan. 11, 2005).

Needs of child and ability of parents to provide for needs. —

Where the wife lived with the parties four children, the court calculated the ex-husband’s net monthly income to be $5,896, and the ex-wife’s monthly gross salary was $4,173, and the child support need was $3,293, the ex-husband’s child support obligation was $1,683. Vitus v. Dega, 2008 Va. Cir. LEXIS 45 (Fairfax County Apr. 17, 2008), aff'd, No. 1831-08-4, No. 1800-08-4, 2009 Va. App. LEXIS 286 (Va. Ct. App. June 23, 2009).

Child support escalator clause. —

Parties’ child support escalator clause was valid and not unconscionable, but was only implicitly enforceable until there was a material change in circumstances, at which time the court could make a new determination of the propriety of such clause under current circumstances; the statutory scheme does not defer determination of modification of support to agreements preexisting changed circumstances, but instead limits the court to consider whether such pacts make the guidelines amount unjust or inappropriate. Byrne v. Shay, 2018 Va. Cir. LEXIS 311 (Fairfax County Sept. 6, 2018).

Operational expenses associated with rental income. —

While a husband presented evidence that the operational expenses were more than the rental income, and thus was allowed to reduce his income. Where the wife also stated the operational expenses associated with a rental property exceeded the revenue generated, because she failed to present sufficient evidence to quantify the amount of her losses, the alleged losses could not be deducted from her gross income in regard to calculating income for spousal and child support. Vitus v. Dega, 2008 Va. Cir. LEXIS 45 (Fairfax County Apr. 17, 2008), aff'd, No. 1831-08-4, No. 1800-08-4, 2009 Va. App. LEXIS 286 (Va. Ct. App. June 23, 2009).

Employment termination. —

Husband’s employment termination was not a change in circumstances sufficient to justify a support reduction where the husband continued to receive a salary for the four months immediately following his termination, and was not unable to work at that time, but instead of working, took a four month paid vacation, at the end of which he chose to open his own business. Chapman v. Chapman, 2005 Va. Cir. LEXIS 139 (Roanoke County Oct. 7, 2005).

Voluntary unemployment. —

Because a husband was voluntarily unemployed, he failed to meet his burden to warrant the circuit court to refrain from not imputing his income, and deviation from the child support guidelines was limited to the imputation of his income; the husband failed to articulate an explanation for collecting unemployment for over a year, without any success in securing a job, had not undertaken a full-time employment search, and was able to continue his current child support obligations. Mukerji v. Mukerji, 89 Va. Cir. 506, 2013 Va. Cir. LEXIS 148 (Fairfax County Nov. 25, 2013).

Circuit court imputed income to the husband because the court found that the husband’s incarceration constituted voluntary unemployment. The amount of the imputed income which the court imputed was the amount on income which the husband was making as a plumber before the husband’s incarceration. Hastings v. Hastings, 2020 Va. Cir. LEXIS 467 (Culpeper County Nov. 19, 2020).

Though parties shared custody, the court awarded child support under sole, rather than shared, custody guidelines. —

In determining whether to award child support based on guidelines applicable to shared custody or sole custody, the court considered the fact that the father had the children for 103 days of the year, but the court determined that the sole custody guideline would be used because the mother’s income, even after factoring in the amount awarded to her in spousal support, was not more than 150 percent above the federal poverty guideline. Heiche v. Heiche, 2004 Va. Cir. LEXIS 221 (Fairfax County July 21, 2004).

Life Insurance. —

Escalating and accelerating cost of life insurance a father paid was relevant to consideration of whether he was entitled to a deviation from the child support guidelines because the money expended for life insurance was for the sole benefit of his children,.Byrne v. Shay, 2018 Va. Cir. LEXIS 131 (Fairfax County Aug. 8, 2018).

Determination of amount. —

Despite argument of the wife’s counsel, there was no evidence as to the wife’s income or need, and therefore no spousal support amount could be determined. However, the trial court did find that there was no basis to disqualify the wife from spousal support; upon her request for support, the trial court granted the wife a reservation for spousal support for the presumptive period. Takehara v. Takehara, 2004 Va. Cir. LEXIS 237 (Fairfax County Sept. 3, 2004).

Court followed the guidelines set out in §§ 20-108.1 and 20-108.2 and concluded that a father’s child support obligation to a mother for the support of the parties’ three minor children was $1,356 per month. The parties’ combined gross monthly income was $8,997, and the father’s percentage of child support payment was 73.1 percent while the mother’s percentage of child support payment was 26.9 percent. Porzel v. Porzel, 2007 Va. Cir. LEXIS 201 (Fairfax County Sept. 25, 2007).

Husband and a wife each had a right to receive spousal support from the other because the wife was residing in the parties’ jointly owned residence, she would incur substantial additional living expenses in the near future due to her need to maintain the joint marital residence, she had a need for spousal support, and the husband had the ability to pay. Gleason v. Gleason, 2009 Va. Cir. LEXIS 34 (Roanoke County Feb. 3, 2009).

Private school tuition. —

Based on the finding that the parties had split custody of a son and a daughter who attended private school and that it was in the best interests of both children that they continue to attend private boarding school, the court deviated from the presumptive amount of child support to allow for tuition; the daughter had been engaging in self-destructive behavior, and while there was no evidence of her former public school system’s ability to address her needs, there was abundant evidence that the private school had had a remarkable effect on her well-being. Hurley v. Hurley, 2004 Va. Cir. LEXIS 380 (Alexandria Nov. 22, 2004).

Additional amount per month was added to the presumptive child support guidelines because the parties explicitly agreed that their children would attend Catholic schools and be raised in the Catholic faith. Giambalvo v. Giambalvo, 2018 Va. Cir. LEXIS 432 (Orange County Oct. 14, 2018).

Retroactive modification. —

Even though the parties property settlement agreement provided that upon emancipation of each child at age 18 or the graduation from high school, reductions in child support would occur immediately and would follow the guidelines issued by the Commonwealth of Virginia, Guidelines for Child Support, § 20-108.2 was enforceable under §§ 20-109.1 and 20-108.1 , and the father’s motion for a prospective reduction in child support was denied because court was without authority to now retroactively modify the support based upon that provision in the PSA. Kaminsky v. Kaminsky, 60 Va. Cir. 353, 2002 Va. Cir. LEXIS 405 (Fairfax County Nov. 13, 2002).

Imputation of income denied. —

Juvenile court erred in imputing income to a father for child support purposes, where the father lost his job as a result of an arrest for child molestation, of which the father was acquitted, and this did not constitute a voluntary wrongful act. Howell v. Howell, 61 Va. Cir. 328, 2003 Va. Cir. LEXIS 42 (Spotsylvania County Mar. 13, 2003).

Where a husband did not loose a job because of wrongdoing and his historical earning pattern was consistent with, or just slightly higher than, his present earnings, income was not to be imputed to him for child support purposes under subdivision B 3 of § 20-108.1 .Lindeman v. Lindeman, 2004 Va. Cir. LEXIS 127 (Spotsylvania County June 4, 2004).

Circuit court’s child support award retroactive to juvenile court’s petition. —

Based upon the jurisdictional provisions of § 16.1-244, which indicated that upon a wife’s filing of a divorce action, which included a request for child support, the juvenile and domestic relations district court no longer had authority over a previously filed child support petition, the circuit court awarded child support retroactively to the date of the commencement of the initial request for support in the domestic relations court, which was in compliance with the dictates of subsection B of § 20-108.1 .Nagpaul v. Nagpaul, 2003 Va. Cir. LEXIS 178 (Fairfax County Aug. 7, 2003).

Income was properly imputed. —

Where father’s inability to pay the child support ordered was due to his own voluntary act, specifically, his incarceration, and said incarceration did not amount to a change in circumstances. Gutman v. Gutman, 2003 Va. Cir. LEXIS 212 (Fairfax County Nov. 12, 2003).

When a husband was terminated through no fault of his own from his position as general manager of an automobile dealership, his evidence of the maximum salary he could hope to obtain in a similar position in the same geographical area was not refuted, and it was reasonable, especially given the husband’s consent, to impute this maximum salary to him when considering his support obligations. Nikolich v. Nikolich, 2004 Va. Cir. LEXIS 28 (Fairfax County Feb. 12, 2004).

Voluntary underemployment not found. —

Where a former husband’s decision to leave his employment was not only reasonable when made, it was reasonable in hindsight, and the husband was thereafter unable to pay spousal support, the trial court erred by imputing income to him. Williams v. Williams, 2004 Va. Cir. LEXIS 4 (Richmond Feb. 11, 2004).

Voluntary underemployment found. —

Husband who left his job and started his own business, at which he earned less money, was deemed voluntarily underemployed because his absenteeism was fault on his part; his child support obligation was calculated based on his former income plus the extra cost of his children’s health insurance, which his former employer had provided gratis. Hart v. Hart, 2004 Va. Cir. LEXIS 239 (Fairfax County Aug. 31, 2004).

Financial resources. —

Pursuant to § 20-108.2 and the factors of § 20-108.1 , the trial court ordered the husband to pay the wife approximately $11 per month for their two children; in doing so, the trial court considered the combined monthly income of $4,089, the parties shared physical custody of the children, each party’s percentage of the income, and the husband’s payment of health care coverage. Alexander v. Alexander, 2006 Va. Cir. LEXIS 100 (Portsmouth July 31, 2006).

Income from second job considered. —

Wife was entitled to monthly spousal support for an undefined duration, but income from the wife’s second job was considered where the wife could have asked for pendente lite support in lieu of obtaining a second job. Burcham v. Burcham, 2010 Va. Cir. LEXIS 3 (Loudoun County Jan. 25, 2010).

Income from Social Security retirement benefits. —

Income the children received from Social Security derivative of the father’s retirement, while not subject to explicit credit, was not excluded from consideration in setting the amount of the father’s support obligation; subdivision B 9 of § 20-108.1 allowed the court to review whether the independent financial resources of the children make it just to deviate from the presumptive amount set by the guidelines, and the children’s Social Security retirement benefits were their independent financial resources. Byrne v. Shay, 2018 Va. Cir. LEXIS 311 (Fairfax County Sept. 6, 2018).

Incorporation not warranted due to improper child support provision. —

Court declined to approve and incorporate the divorcing parties’ post-nuptial agreement into their divorce decree because it did not contain the required findings, including the amount of the presumptive child support award. Whittaker v. Whittaker, 97 Va. Cir. 265, 2013 Va. Cir. LEXIS 123 (Roanoke County 2013).

Spousal support denied. —

§ 20-108.2. Guideline for determination of child support; quadrennial review by Child Support Guidelines Review Panel; executive summary.

There shall be a rebuttable presumption in any judicial or administrative proceeding for child support under this title or Title 16.1 or 63.2, including cases involving split custody, shared custody, or multiple custody arrangements pursuant to subdivisions G 4, 5, and 6, that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded. In order to rebut the presumption, the court shall make written findings in the order as set out in § 20-108.1 , which findings may be incorporated by reference, that the application of the guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in § 20-108.1 . The Department of Social Services shall set child support at the amount resulting from computations using the guidelines set out in this section pursuant to the authority granted to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subject to the provisions of § 63.2-1918 .
For purposes of application of the guideline, a basic child support obligation shall be computed using the schedule set out below. For combined monthly gross income amounts falling between amounts shown in the schedule, basic child support obligation amounts shall be extrapolated. However, unless one of the following exemptions applies where the sole custody child support obligation as computed pursuant to subdivision G 1 is less than the statutory minimum per month, there shall be a presumptive minimum child support obligation of the statutory minimum per month payable by the payor parent. If the gross income of the obligor is equal to or less than 150 percent of the federal poverty level promulgated by the U.S. Department of Health and Human Services from time to time, then the court, upon hearing evidence that there is no ability to pay the presumptive statutory minimum, may set an obligation below the presumptive statutory minimum provided doing so does not create or reduce a support obligation to an amount which seriously impairs the custodial parent’s ability to maintain minimal adequate housing and provide other basic necessities for the child. Exemptions from this presumptive minimum monthly child support obligation shall include: parents unable to pay child support because they lack sufficient assets from which to pay child support and who, in addition, are institutionalized in a psychiatric facility; are imprisoned for life with no chance of parole; are medically verified to be totally and permanently disabled with no evidence of potential for paying child support, including recipients of Supplemental Security Income (SSI); or are otherwise involuntarily unable to produce income. “Number of children” means the number of children for whom the parents share joint legal responsibility and for whom support is being sought. The guidelines worksheet relied upon by the court or the Department of Social Services to compute a child support obligation for a support order issued by such court or the Department shall be placed in the court’s file or the Department’s file, and a copy of such guidelines worksheet shall be provided to the parties.SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
Click to viewFor gross monthly incomes above $35,000, add the amount of child support for $35,000 to the following percentages of gross income above $35,000.

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For purposes of this section, “gross income” means all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.If a parent’s gross income includes disability insurance benefits, it shall also include any amounts paid to or for the child who is the subject of the order and derived by the child from the parent’s entitlement to disability insurance benefits. To the extent that such derivative benefits are included in a parent’s gross income, that parent shall be entitled to a credit against his or her ongoing basic child support obligation for any such amounts, and, if the amount of the credit exceeds the parent’s basic child support obligations, the credit may be used to reduce arrearages.Gross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. “Gross income” shall not include:
1. Benefits from public assistance and social services programs as defined in § 63.2-100 ;
2. Federal supplemental security income benefits;
3. Child support received; or
4. Income received by the payor from secondary employment income not previously included in “gross income,” where the payor obtained the income to discharge a child support arrearage established by a court or administrative order and the payor is paying the arrearage pursuant to the order. “Secondary employment income” includes but is not limited to income from an additional job, from self-employment, or from overtime employment. The cessation of such secondary income upon the payment of the arrearage shall not be the basis for a material change in circumstances upon which a modification of child support may be based.For purposes of this subsection: (i) spousal support received shall be included in gross income and spousal support paid shall be deducted from gross income when paid pursuant to an order or written agreement and (ii) one-half of any self-employment tax paid shall be deducted from gross income.Where there is an existing court or administrative order or written agreement relating to the child or children of a party to the proceeding, who are not the child or children who are the subject of the present proceeding, then there is a presumption that there shall be deducted from the gross income of the party subject to such order or written agreement, the amount that the party is actually paying for the support of a child or children pursuant to such order or agreement.Where a party to the proceeding has a natural or adopted child or children in the party’s household or primary physical custody, and the child or children are not the subject of the present proceeding, there is a presumption that there shall be deducted from the gross income of that party the amount as shown on the Schedule of Monthly Basic Child Support Obligations contained in subsection B that represents that party’s support obligation based solely on that party’s income as being the total income available for the natural or adopted child or children in the party’s household or primary physical custody, who are not the subject of the present proceeding. Provided, however, that the existence of a party’s financial responsibility for such a child or children shall not of itself constitute a material change in circumstances for modifying a previous order of child support in any modification proceeding. Any adjustment to gross income under this subsection shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent’s ability to maintain minimal adequate housing and provide other basic necessities for the child, as determined by the court.In cases in which retroactive liability for support is being determined, the court or administrative agency may use the gross monthly income of the parties averaged over the period of retroactivity.
Except for good cause shown or the agreement of the parties, in addition to any other child support obligations established pursuant to this section, any child support order shall provide that the parents pay in proportion to their gross incomes, as used for calculating the monthly support obligation, any reasonable and necessary unreimbursed medical or dental expenses. The method of payment of those expenses shall be contained in the support order. Each parent shall pay his respective share of expenses as those expenses are incurred. Any amount paid under this subsection shall not be adjusted by, nor added to, the child support calculated in accordance with subsection G. For the purposes of this section, medical or dental expenses shall include but not be limited to eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, including but not limited to services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.
The costs for health care coverage as defined in § 63.2-1900 , vision care coverage, and dental care coverage for the child or children who are the subject of the child support order that are being paid by a parent or that parent’s spouse shall be added to the basic child support obligation. To determine the cost to be added to the basic child support obligation, the cost per person shall be applied to the child or children who are subject of the child support order. If the per child cost is provided by the insurer, that is the cost per person. Otherwise, to determine the cost per person, the cost of individual coverage for the policy holder shall be subtracted from the total cost of the coverage, and the remaining amount shall be divided by the number of remaining covered persons.
Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation. Child-care costs shall not exceed the amount required to provide quality care from a licensed source. When requested by the noncustodial parent, the court may require the custodial parent to present documentation to verify the costs incurred for child care under this subsection. Where appropriate, the court shall consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive. Upon the request of either party, and upon a showing of the tax savings a party derives from child-care cost deductions or credits, the court shall factor actual tax consequences into its calculation of the child-care costs to be added to the basic child support obligation.
1. Sole custody support. The sole custody total monthly child support obligation shall be established by adding (i) the monthly basic child support obligation, as determined from the schedule contained in subsection B, (ii) costs for health care coverage to the extent allowable by subsection E, and (iii) work-related child-care costs and taking into consideration all the factors set forth in subsection B of § 20-108.1 . The total monthly child support obligation shall be divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. The monthly obligation of each parent shall be computed by multiplying each parent’s percentage of the parents’ monthly combined gross income by the total monthly child support obligation.However, the monthly obligation of the noncustodial parent shall be reduced by the cost for health care coverage to the extent allowable by subsection E when paid directly by the noncustodial parent or that parent’s spouse. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D. G. 1. Sole custody support. The sole custody total monthly child support obligation shall be established by adding (i) the monthly basic child support obligation, as determined from the schedule contained in subsection B, (ii) costs for health care coverage to the extent allowable by subsection E, and (iii) work-related child-care costs and taking into consideration all the factors set forth in subsection B of § 20-108.1 . The total monthly child support obligation shall be divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. The monthly obligation of each parent shall be computed by multiplying each parent’s percentage of the parents’ monthly combined gross income by the total monthly child support obligation.However, the monthly obligation of the noncustodial parent shall be reduced by the cost for health care coverage to the extent allowable by subsection E when paid directly by the noncustodial parent or that parent’s spouse. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.
2. Split custody support. In cases involving split custody, the amount of child support to be paid shall be the difference between the amounts owed by each parent as a noncustodial parent, computed in accordance with subdivision 1, with the noncustodial parent owing the larger amount paying the difference to the other parent. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.For the purpose of this section and § 20-108.1, split custody shall be limited to those situations where each parent has physical custody of a child or children born of the parents, born of either parent and adopted by the other parent or adopted by both parents. For the purposes of calculating a child support obligation where split custody exists, a separate family unit exists for each parent, and child support for that family unit shall be calculated upon the number of children in that family unit who are born of the parents, born of either parent and adopted by the other parent or adopted by both parents. Where split custody exists, a parent is a custodial parent to the children in that parent’s family unit and is a noncustodial parent to the children in the other parent’s family unit.
3. Shared custody support.
  1. Where a party has custody or visitation of a child or children for more than 90 days of the year, as such days are defined in subdivision G 3 (c), a shared custody child support amount based on the ratio in which the parents share the custody and visitation of any child or children shall be calculated in accordance with this subdivision. The presumptive support to be paid shall be the shared custody support amount, unless a party affirmatively shows that the sole custody support amount calculated as provided in subdivision G 1 is less than the shared custody support amount. If so, the lesser amount shall be the support to be paid. For the purposes of this subsection, the following shall apply:
    1. Income share. “Income share” means a parent’s percentage of the combined monthly gross income of both parents. The income share of a parent is that parent’s gross income divided by the combined gross incomes of the parties.
    2. Custody share. “Custody share” means the number of days that a parent has physical custody, whether by sole custody, joint legal or joint residential custody, or visitation, of a shared child per year divided by the number of days in the year. The actual or anticipated “custody share” of the parent who has or will have fewer days of physical custody shall be calculated for a one-year period. The “custody share” of the other parent shall be presumed to be the number of days in the year less the number of days calculated as the first parent’s “custody share.” For purposes of this calculation, the year may begin on such date as is determined in the discretion of the court, and the day may begin at such time as is determined in the discretion of the court. For purposes of this calculation, a day shall be as defined in subdivision G 3 (c).
    3. Shared support need. “Shared support need” means the presumptive guideline amount of needed support for the shared child or children calculated pursuant to subsection B of this section, for the combined gross income of the parties and the number of shared children, multiplied by 1.4.
    4. Sole custody support. “Sole custody support” means the support amount determined in accordance with subdivision G 1.
  2. Support to be paid. The shared support need of the shared child or children shall be calculated pursuant to subdivision G 3 (a) (iii). This amount shall then be multiplied by the other parent’s custody share. To that sum for each parent shall be added the other parent’s or that parent’s spouse’s cost of health care coverage to the extent allowable by subsection E, plus the other parent’s work-related child-care costs to the extent allowable by subsection F. This total for each parent shall be multiplied by that parent’s income share. The support amounts thereby calculated that each parent owes the other shall be subtracted one from the other and the difference shall be the shared custody support one parent owes to the other, with the payor parent being the one whose shared support is the larger. Unreimbursed medical and dental expenses shall be calculated and allocated in accordance with subsection D.
  3. Definition of a day. For the purposes of this section, “day” means a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.
  4. Minimum standards. Any calculation under this subdivision shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent’s ability to maintain minimal adequate housing and provide other basic necessities for the child. If the gross income of either party is equal to or less than 150 percent of the federal poverty level promulgated by the U.S. Department of Health and Human Services from time to time, then the shared custody support calculated pursuant to this subsection shall not be the presumptively correct support and the court may consider whether the sole custody support or the shared custody support is more just and appropriate.
  5. Support modification. When there has been an award of child support based on the shared custody formula and one parent consistently fails to exercise custody or visitation in accordance with the parent’s custody share upon which the award was based, there shall be a rebuttable presumption that the support award should be modified.
  6. In the event that the shared custody support calculation indicates that the net support is to be paid to the parent who would not be the parent receiving support pursuant to the sole custody calculation, then the shared support shall be deemed to be the lesser support.
4. Multiple shared custody support. In cases with different shared custody arrangements for two or more minor children of the parties, the procedures in subdivision G 3 shall apply, except that one shared guideline shall be used to determine the total amount of child support owed by one parent to the other by:
5. Sole and shared custody support. In cases where one parent has sole custody of one or more minor children of the parties, and the parties share custody of one or more other minor children of the parties, the procedures in subdivisions G 1 and 3 shall apply, except that one sole custody support guideline calculation and one shared custody support guideline calculation shall be used to determine the total amount of child support owed by one parent to the other by:
  1. Calculating the per child monthly basic child support obligation by determining, for the number of children of the parties, the scheduled monthly basic child support obligation and dividing that amount by the number of children of the parties;
  2. Calculating the sole custody pro rata monthly basic child support obligation by multiplying the per child monthly basic child support obligation determined in subdivision G 5 (a) (i) by the number of children subject to the sole custody support obligation; and
  3. Applying the sole custody pro rata monthly basic child support obligation determined in subdivision G 5 (a) (ii) to the procedures in subdivision G 1.
    1. Calculating the per child monthly basic child support obligation by determining, for the number of children of the parties, the scheduled monthly basic child support obligation and dividing that amount by the number of children of the parties;
    2. Calculating the shared custody pro rata monthly basic child support obligation by multiplying the per child monthly basic child support obligation determined in subdivision G 5 (b) (i) by the number of children subject to the shared custody support obligation; and
    3. Applying the shared custody pro rata monthly basic child support obligation determined in subdivision G 5 (b) (ii) to the procedures in subdivision G 3.
6. Split and shared custody support. In cases where the parents have split custody of two or more children, and there is a shared custody arrangement with one or more other minor children of the parties, the procedures set forth in subdivisions G 2 and G 3 shall apply, except that one split custody child support guideline calculation and one shared custody child support guideline calculation shall be used to calculate the total amount of child support owed by one parent to the other by:
  1. Calculating the per child monthly basic child custody support obligation by determining, for the number of children of the parties, the scheduled monthly basic child support obligation and dividing that amount by the number of children of the parties;
  2. Calculating the split custody pro rata monthly basic child support obligation by multiplying the per child monthly basic child support obligation determined in subdivision G 6 (a) (i) by the number of children subject to the split custody support obligation; and
  3. Applying the split custody pro rata monthly basic child support obligation determined in subdivision G 6 (a) (ii) for each parent to the procedures in subdivision G 2.
    1. Calculating the per child monthly basic child custody support obligation by determining, for the number of children of the parties, the scheduled monthly basic child support obligation and dividing that amount by the number of children of the parties;
    2. Calculating the shared custody pro rata monthly basic child custody support obligation by multiplying the per child monthly basic child support obligation determined in subdivision G 6 (b) (i) by the number of children subject to the shared custody support obligation; and
    3. Applying the shared custody pro rata monthly basic child support obligation determined in subdivision G 6 (b) (ii) to the procedures in subdivision G 3.
The Secretary of Health and Human Resources shall ensure that the guideline set out in this section is reviewed by October 31, 2001, and every four years thereafter, by the Child Support Guidelines Review Panel, consisting of 15 members comprised of four legislative members and 11 nonlegislative citizen members. Members shall be appointed as follows: three members of the House Committee for Courts of Justice, upon the recommendation of the chairman of such committee, to be appointed by the Speaker of the House of Delegates in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; one member of the Senate Committee on the Judiciary, upon the recommendation of the chairman of such committee, to be appointed by the Senate Committee on Rules; and one representative of a juvenile and domestic relations district court, one representative of a circuit court, one representative of the Department of Social Services’ Division of Child Support Enforcement, three members of the Virginia State Bar, two custodial parents, two noncustodial parents, and one child advocate, upon the recommendation of the Secretary of Health and Human Resources, to be appointed by the Governor. The Panel shall determine the adequacy of the guideline for the determination of appropriate awards for the support of children by considering current research and data on the cost of and expenditures necessary for rearing children, and any other resources it deems relevant to such review. The Panel shall report its findings to the General Assembly as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports before the General Assembly next convenes following such review.Legislative members shall serve terms coincident with their terms of office. Nonlegislative citizen members shall serve at the pleasure of the Governor. All members may be reappointed. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments.Legislative members shall receive such compensation as provided in § 30-19.12, and nonlegislative citizen members shall receive such compensation for the performance of their duties as provided in § 2.2-2813 . All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825 . Funding for the costs of compensation and expenses of the members shall be provided by the Department of Social Services.The Department of Social Services shall provide staff support to the Panel. All agencies of the Commonwealth shall provide assistance to the Panel, upon request.The chairman of the Panel shall submit to the Governor and the General Assembly a quadrennial executive summary of the interim activity and work of the Panel no later than the first day of 2006 regular session of the General Assembly and every four years thereafter. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

COMBINED MONTHLY GROSS ONE TWO THREE FOUR FIVE SIX INCOME CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 0-350 68 104 126 141 155 169 400 78 119 144 161 177 192 450 88 133 162 181 199 216 500 97 148 179 200 220 239 550 107 162 197 220 242 263 600 116 177 215 240 264 287 650 126 191 232 259 285 310 700 135 206 250 279 307 333 750 145 220 267 298 328 357 800 154 234 284 317 349 379 850 163 248 300 336 369 401 900 171 260 316 353 388 422 950 179 273 331 369 406 442 1000 187 285 346 386 425 462 1050 196 298 361 403 443 482 1100 204 310 375 419 461 501 1150 212 323 390 436 480 521 1200 220 335 405 453 498 541 1250 228 347 420 469 516 561 1300 237 360 435 486 535 581 1350 245 372 450 503 553 601 1400 253 385 465 519 571 621 1450 261 397 480 536 589 641 1500 269 410 495 552 608 661 1550 278 422 509 569 626 680 1600 286 434 524 585 644 700 1650 293 446 538 601 661 718 1700 301 457 552 616 678 737 1750 309 469 566 632 695 756 1800 316 481 579 647 712 774 1850 324 492 593 663 729 792 1900 331 504 607 678 746 811 1950 339 515 621 693 763 829 2000 347 527 635 709 780 848 2050 354 538 648 724 797 866 2100 362 550 662 740 814 884 2150 369 561 676 755 830 903 2200 377 573 690 770 847 921 2250 385 584 703 786 864 940 2300 392 596 717 801 881 958 2350 400 607 731 817 898 976 2400 407 619 745 832 915 995 2450 415 630 759 847 932 1013 2500 423 642 772 863 949 1032 2550 430 653 786 878 966 1050 2600 438 665 800 894 983 1068 2650 445 676 814 909 1000 1087 2700 453 688 828 924 1017 1105 2750 460 699 841 940 1034 1124 2800 468 711 855 955 1051 1142 2850 476 722 869 971 1068 1160 2900 483 734 883 986 1084 1179 2950 491 745 896 1001 1101 1197 3000 498 757 910 1017 1118 1216 3050 506 768 924 1032 1135 1234 3100 514 780 938 1047 1152 1252 3150 521 791 952 1063 1169 1271 3200 529 803 965 1078 1186 1289 3250 536 814 979 1094 1203 1308 3300 544 826 993 1109 1220 1326 3350 551 837 1006 1123 1236 1343 3400 559 848 1019 1138 1252 1361 3450 566 859 1032 1152 1268 1378 3500 574 870 1045 1167 1283 1395 3550 581 881 1057 1181 1299 1412 3600 588 892 1070 1196 1315 1430 3650 596 903 1083 1210 1331 1447 3700 603 914 1096 1224 1347 1464 3750 611 925 1109 1239 1363 1481 3800 618 936 1122 1253 1379 1499 3850 626 947 1135 1268 1395 1516 3900 632 956 1146 1280 1408 1531 3950 638 966 1157 1293 1422 1546 4000 645 975 1168 1305 1436 1561 4050 651 985 1180 1318 1449 1575 4100 658 994 1191 1330 1463 1590 4150 664 1004 1202 1342 1477 1605 4200 670 1013 1213 1355 1490 1620 4250 677 1023 1224 1367 1504 1635 4300 682 1030 1233 1377 1515 1647 4350 687 1038 1242 1387 1526 1658 4400 693 1046 1251 1397 1537 1670 4450 698 1054 1260 1407 1548 1682 4500 704 1062 1268 1417 1559 1694 4550 709 1069 1277 1427 1569 1706 4600 714 1077 1286 1437 1580 1718 4650 720 1085 1295 1447 1591 1730 4700 725 1093 1304 1457 1602 1742 4750 731 1100 1313 1466 1613 1753 4800 736 1108 1322 1476 1624 1765 4850 741 1116 1331 1486 1635 1777 4900 747 1124 1339 1496 1646 1789 4950 752 1131 1348 1506 1656 1800 5000 755 1136 1353 1511 1662 1807 5050 759 1141 1358 1516 1668 1813 5100 762 1145 1362 1522 1674 1820 5150 766 1150 1367 1527 1680 1826 5200 769 1155 1372 1533 1686 1833 5250 773 1159 1377 1538 1692 1839 5300 776 1164 1382 1544 1698 1846 5350 780 1169 1387 1549 1704 1852 5400 783 1173 1392 1554 1710 1859 5450 787 1178 1397 1560 1716 1865 5500 790 1183 1401 1565 1722 1872 5550 794 1187 1406 1571 1728 1878 5600 797 1192 1411 1576 1734 1885 5650 800 1196 1416 1582 1740 1891 5700 803 1201 1421 1587 1746 1897 5750 806 1205 1425 1592 1751 1904 5800 809 1209 1430 1598 1757 1910 5850 812 1213 1435 1603 1763 1917 5900 815 1217 1440 1608 1769 1923 5950 818 1221 1444 1613 1775 1929 6000 821 1226 1449 1619 1781 1936 6050 823 1230 1454 1624 1787 1942 6100 826 1234 1459 1629 1792 1948 6150 829 1238 1464 1635 1798 1955 6200 832 1242 1468 1640 1804 1961 6250 835 1246 1473 1645 1810 1967 6300 838 1251 1478 1651 1816 1974 6350 841 1255 1483 1656 1822 1980 6400 844 1259 1487 1661 1827 1986 6450 847 1263 1492 1667 1833 1993 6500 849 1267 1497 1672 1839 1999 6550 852 1271 1502 1677 1845 2005 6600 855 1276 1506 1683 1851 2012 6650 858 1280 1511 1688 1857 2018 6700 861 1285 1517 1694 1864 2026 6750 865 1291 1524 1703 1873 2036 6800 869 1297 1532 1711 1882 2046 6850 873 1303 1539 1719 1891 2056 6900 877 1309 1547 1728 1900 2066 6950 881 1315 1554 1736 1909 2076 7000 885 1321 1561 1744 1919 2085 7050 889 1328 1569 1752 1928 2095 7100 893 1334 1576 1761 1937 2105 7150 897 1340 1584 1769 1946 2115 7200 901 1346 1591 1777 1955 2125 7250 905 1352 1599 1786 1964 2135 7300 909 1358 1606 1794 1973 2145 7350 913 1364 1613 1802 1982 2155 7400 917 1370 1621 1810 1991 2165 7450 921 1376 1628 1819 2001 2175 7500 925 1382 1636 1827 2010 2185 7550 929 1389 1643 1835 2019 2194 7600 933 1395 1650 1844 2028 2204 7650 937 1401 1658 1852 2037 2214 7700 941 1407 1665 1860 2046 2224 7750 944 1411 1670 1865 2051 2230 7800 946 1413 1672 1867 2054 2233 7850 948 1416 1674 1870 2057 2236 7900 950 1419 1676 1873 2060 2239 7950 953 1421 1679 1875 2063 2242 8000 955 1424 1681 1878 2065 2245 8050 957 1426 1683 1880 2068 2248 8100 959 1429 1685 1883 2071 2251 8150 961 1432 1688 1885 2074 2254 8200 963 1434 1690 1888 2076 2257 8250 965 1436 1692 1890 2079 2260 8300 967 1439 1694 1892 2082 2263 8350 969 1441 1696 1895 2084 2266 8400 971 1444 1699 1897 2087 2269 8450 973 1446 1701 1899 2089 2271 8500 974 1447 1702 1901 2091 2273 8550 975 1449 1704 1903 2093 2276 8600 976 1450 1705 1905 2096 2278 8650 977 1452 1707 1907 2098 2280 8700 978 1453 1709 1909 2100 2282 8750 979 1455 1710 1911 2102 2284 8800 980 1456 1712 1912 2104 2287 8850 981 1457 1714 1914 2106 2289 8900 982 1459 1715 1916 2108 2291 8950 983 1460 1717 1918 2110 2293 9000 984 1462 1719 1920 2112 2295 9050 985 1463 1720 1922 2114 2298 9100 986 1465 1722 1923 2116 2300 9150 987 1466 1724 1925 2118 2302 9200 991 1471 1730 1932 2125 2310 9250 994 1477 1737 1940 2134 2319 9300 998 1483 1743 1947 2142 2328 9350 1002 1488 1750 1955 2150 2337 9400 1005 1494 1757 1962 2159 2346 9450 1009 1499 1764 1970 2167 2355 9500 1013 1505 1771 1978 2176 2365 9550 1017 1511 1778 1986 2185 2375 9600 1021 1518 1786 1995 2194 2385 9650 1025 1524 1793 2003 2203 2395 9700 1029 1530 1801 2011 2212 2405 9750 1033 1536 1808 2020 2222 2415 9800 1037 1543 1816 2028 2231 2425 9850 1041 1549 1823 2036 2240 2435 9900 1046 1555 1831 2045 2249 2445 9950 1050 1561 1838 2053 2258 2455 10000 1054 1567 1845 2061 2268 2465 10050 1058 1574 1853 2070 2277 2475 10100 1062 1580 1860 2078 2286 2485 10150 1066 1586 1868 2086 2295 2495 10200 1070 1592 1875 2095 2304 2505 10250 1074 1599 1883 2103 2314 2515 10300 1079 1605 1891 2112 2323 2525 10350 1083 1611 1898 2121 2333 2536 10400 1087 1618 1906 2129 2342 2546 10450 1091 1624 1914 2138 2351 2556 10500 1095 1631 1921 2146 2361 2566 10550 1100 1637 1929 2155 2370 2576 10600 1104 1643 1937 2163 2380 2587 10650 1108 1650 1944 2172 2389 2597 10700 1112 1656 1952 2180 2398 2607 10750 1117 1662 1960 2189 2408 2617 10800 1121 1669 1967 2197 2417 2627 10850 1125 1675 1975 2206 2427 2638 10900 1129 1682 1983 2214 2436 2648 10950 1134 1688 1990 2223 2445 2658 11000 1138 1694 1998 2232 2455 2668 11050 1142 1701 2005 2240 2464 2678 11100 1146 1707 2013 2249 2474 2689 11150 1150 1714 2021 2257 2483 2699 11200 1154 1718 2026 2263 2489 2706 11250 1157 1722 2030 2267 2494 2711 11300 1159 1726 2034 2272 2499 2717 11350 1162 1730 2038 2276 2504 2722 11400 1165 1733 2042 2281 2509 2727 11450 1168 1737 2046 2285 2514 2733 11500 1171 1741 2050 2290 2519 2738 11550 1173 1745 2054 2294 2524 2743 11600 1176 1749 2058 2299 2529 2749 11650 1179 1752 2062 2303 2534 2754 11700 1182 1756 2066 2308 2538 2759 11750 1185 1760 2070 2312 2543 2765 11800 1187 1764 2074 2317 2548 2770 11850 1190 1768 2078 2321 2553 2775 11900 1193 1771 2082 2326 2558 2781 11950 1196 1775 2086 2330 2563 2786 12000 1199 1779 2090 2335 2568 2791 12050 1201 1783 2094 2339 2573 2797 12100 1204 1787 2098 2344 2578 2802 12150 1207 1790 2102 2348 2583 2808 12200 1210 1795 2107 2354 2589 2815 12250 1213 1800 2113 2360 2596 2822 12300 1216 1804 2118 2366 2603 2829 12350 1220 1809 2124 2372 2610 2837 12400 1223 1814 2129 2378 2616 2844 12450 1226 1818 2135 2384 2623 2851 12500 1229 1823 2140 2391 2630 2858 12550 1232 1828 2146 2397 2636 2866 12600 1235 1832 2151 2403 2643 2873 12650 1239 1837 2157 2409 2650 2880 12700 1242 1842 2162 2415 2657 2888 12750 1245 1846 2168 2421 2663 2895 12800 1248 1851 2173 2427 2670 2902 12850 1251 1856 2178 2433 2677 2910 12900 1254 1860 2184 2439 2683 2917 12950 1257 1865 2189 2446 2690 2924 13000 1261 1870 2195 2452 2697 2931 13050 1264 1874 2200 2458 2704 2939 13100 1267 1879 2206 2464 2710 2946 13150 1270 1884 2211 2470 2717 2953 13200 1273 1888 2217 2476 2724 2961 13250 1276 1893 2222 2482 2730 2968 13300 1279 1898 2228 2488 2737 2975 13350 1283 1902 2233 2494 2744 2983 13400 1286 1907 2239 2501 2751 2990 13450 1289 1912 2244 2507 2757 2997 13500 1292 1916 2250 2513 2764 3005 13550 1295 1921 2256 2520 2772 3013 13600 1297 1925 2262 2526 2779 3021 13650 1300 1930 2268 2533 2786 3029 13700 1303 1935 2274 2540 2794 3037 13750 1306 1939 2280 2546 2801 3045 13800 1308 1944 2286 2553 2808 3053 13850 1311 1948 2292 2560 2816 3061 13900 1314 1953 2298 2566 2823 3069 13950 1317 1957 2304 2573 2830 3077 14000 1320 1962 2310 2580 2838 3085 14050 1322 1967 2316 2586 2845 3093 14100 1325 1971 2322 2593 2852 3101 14150 1328 1976 2328 2600 2860 3109 14200 1331 1980 2333 2607 2867 3117 14250 1334 1985 2339 2613 2875 3125 14300 1336 1990 2345 2620 2882 3133 14350 1339 1994 2351 2627 2889 3141 14400 1342 1999 2357 2633 2897 3149 14450 1345 2003 2363 2640 2904 3157 14500 1347 2008 2369 2647 2911 3164 14550 1350 2013 2375 2653 2919 3172 14600 1353 2017 2381 2660 2926 3180 14650 1356 2022 2387 2667 2933 3188 14700 1359 2026 2393 2673 2941 3196 14750 1361 2031 2399 2680 2948 3204 14800 1364 2036 2405 2686 2955 3212 14850 1368 2040 2410 2692 2961 3219 14900 1371 2045 2415 2698 2967 3226 14950 1375 2050 2420 2703 2974 3232 15000 1378 2055 2425 2709 2980 3239 15050 1382 2059 2430 2714 2986 3246 15100 1385 2064 2435 2720 2992 3252 15150 1389 2069 2440 2726 2998 3259 15200 1392 2074 2445 2731 3004 3266 15250 1396 2078 2450 2737 3010 3272 15300 1400 2083 2455 2742 3017 3279 15350 1403 2088 2460 2748 3023 3286 15400 1407 2093 2465 2754 3029 3292 15450 1410 2098 2470 2759 3035 3299 15500 1414 2102 2475 2765 3041 3306 15550 1417 2107 2480 2770 3047 3312 15600 1421 2112 2485 2776 3053 3319 15650 1424 2117 2490 2781 3060 3326 15700 1428 2121 2495 2787 3066 3333 15750 1431 2126 2500 2793 3072 3339 15800 1435 2131 2505 2798 3078 3346 15850 1438 2136 2510 2804 3084 3353 15900 1442 2140 2515 2809 3090 3359 15950 1445 2145 2520 2815 3097 3366 16000 1449 2150 2525 2821 3103 3373 16050 1453 2155 2530 2826 3109 3379 16100 1456 2159 2535 2832 3115 3386 16150 1458 2162 2538 2835 3119 3390 16200 1459 2164 2541 2838 3122 3394 16250 1461 2167 2544 2841 3125 3397 16300 1462 2169 2546 2844 3128 3401 16350 1464 2171 2549 2847 3132 3404 16400 1465 2173 2551 2850 3135 3408 16450 1466 2175 2554 2853 3138 3411 16500 1468 2177 2557 2856 3141 3415 16550 1469 2179 2559 2859 3144 3418 16600 1471 2182 2562 2862 3148 3422 16650 1472 2184 2564 2864 3151 3425 16700 1473 2186 2567 2867 3154 3428 16750 1475 2188 2570 2870 3157 3432 16800 1476 2190 2572 2873 3160 3435 16850 1477 2192 2575 2876 3164 3439 16900 1479 2194 2577 2879 3167 3442 16950 1480 2196 2580 2882 3170 3446 17000 1481 2198 2582 2885 3173 3449 17050 1483 2200 2585 2887 3176 3452 17100 1484 2203 2588 2890 3179 3456 17150 1486 2205 2590 2893 3182 3459 17200 1487 2207 2593 2896 3186 3463 17250 1488 2209 2595 2899 3189 3466 17300 1490 2211 2598 2902 3192 3470 17350 1491 2213 2600 2905 3195 3473 17400 1492 2215 2603 2907 3198 3476 17450 1494 2217 2605 2910 3201 3480 17500 1495 2219 2608 2913 3204 3483 17550 1497 2222 2611 2916 3208 3487 17600 1498 2224 2613 2919 3211 3490 17650 1499 2226 2616 2922 3214 3494 17700 1501 2228 2618 2925 3217 3497 17750 1502 2230 2621 2928 3220 3500 17800 1503 2232 2623 2930 3223 3504 17850 1505 2234 2626 2933 3227 3507 17900 1506 2236 2629 2936 3230 3511 17950 1507 2238 2631 2939 3233 3514 18000 1509 2240 2634 2942 3236 3518 18050 1510 2243 2636 2945 3239 3521 18100 1512 2245 2639 2948 3242 3524 18150 1513 2247 2641 2950 3245 3528 18200 1514 2249 2644 2953 3249 3531 18250 1516 2251 2647 2956 3252 3535 18300 1517 2253 2649 2959 3255 3538 18350 1520 2256 2652 2963 3259 3542 18400 1522 2259 2655 2966 3263 3547 18450 1524 2262 2658 2970 3266 3551 18500 1526 2265 2662 2973 3270 3555 18550 1528 2268 2665 2976 3274 3559 18600 1530 2271 2668 2980 3278 3563 18650 1532 2274 2671 2983 3282 3567 18700 1535 2277 2674 2987 3285 3571 18750 1537 2280 2677 2990 3289 3575 18800 1539 2283 2680 2994 3293 3579 18850 1541 2285 2683 2997 3297 3584 18900 1543 2288 2686 3000 3301 3588 18950 1545 2291 2689 3004 3304 3592 19000 1547 2294 2692 3007 3308 3596 19050 1550 2297 2695 3011 3312 3600 19100 1552 2300 2698 3014 3316 3604 19150 1554 2303 2702 3018 3319 3608 19200 1556 2306 2705 3021 3323 3612 19250 1558 2309 2708 3025 3327 3616 19300 1560 2312 2711 3028 3331 3621 19350 1563 2315 2714 3031 3335 3625 19400 1565 2318 2717 3035 3338 3629 19450 1567 2320 2720 3038 3342 3633 19500 1569 2323 2723 3042 3346 3637 19550 1571 2326 2726 3045 3350 3641 19600 1573 2329 2729 3049 3353 3645 19650 1575 2332 2732 3052 3357 3649 19700 1578 2335 2735 3055 3361 3653 19750 1580 2338 2738 3059 3365 3658 19800 1582 2341 2742 3062 3369 3662 19850 1584 2344 2745 3066 3372 3666 19900 1586 2347 2748 3069 3376 3670 19950 1588 2350 2751 3073 3380 3674 20000 1591 2353 2754 3076 3384 3678 20050 1593 2355 2757 3080 3387 3682 20100 1595 2358 2760 3083 3391 3686 20150 1597 2361 2763 3086 3395 3690 20200 1599 2364 2766 3090 3399 3695 20250 1601 2367 2769 3093 3403 3699 20300 1603 2370 2772 3097 3406 3703 20350 1606 2373 2775 3100 3410 3707 20400 1608 2376 2778 3104 3414 3711 20450 1610 2379 2782 3107 3418 3715 20500 1612 2382 2785 3110 3421 3719 20550 1614 2385 2788 3114 3425 3723 20600 1616 2388 2791 3117 3429 3727 20650 1619 2390 2794 3121 3433 3731 20700 1621 2393 2797 3124 3437 3736 20750 1623 2396 2800 3128 3440 3740 20800 1625 2399 2803 3131 3444 3744 20850 1627 2402 2806 3135 3448 3748 20900 1629 2405 2809 3138 3452 3752 20950 1631 2408 2812 3141 3456 3756 21000 1634 2411 2815 3145 3459 3760 21050 1636 2414 2818 3148 3463 3764 21100 1638 2417 2822 3152 3467 3768 21150 1640 2420 2825 3155 3471 3773 21200 1642 2423 2828 3159 3474 3777 21250 1644 2425 2831 3162 3478 3781 21300 1647 2428 2834 3165 3482 3785 21350 1649 2431 2837 3169 3486 3789 21400 1651 2434 2840 3172 3490 3793 21450 1653 2437 2843 3176 3493 3797 21500 1655 2440 2846 3179 3497 3801 21550 1657 2443 2849 3183 3501 3805 21600 1659 2446 2853 3187 3506 3811 21650 1661 2449 2857 3191 3510 3816 21700 1663 2452 2861 3195 3515 3821 21750 1665 2455 2865 3200 3520 3826 21800 1667 2458 2868 3204 3524 3831 21850 1668 2461 2872 3208 3529 3836 21900 1670 2464 2876 3213 3534 3841 21950 1672 2467 2880 3217 3539 3846 22000 1674 2470 2884 3221 3543 3852 22050 1676 2473 2888 3225 3548 3857 22100 1678 2476 2891 3230 3553 3862 22150 1680 2479 2895 3234 3557 3867 22200 1681 2482 2899 3238 3562 3872 22250 1683 2485 2903 3243 3567 3877 22300 1685 2488 2907 3247 3571 3882 22350 1687 2491 2911 3251 3576 3887 22400 1689 2494 2914 3255 3581 3892 22450 1691 2497 2918 3260 3586 3898 22500 1692 2500 2922 3264 3590 3903 22550 1694 2503 2926 3268 3595 3908 22600 1696 2506 2930 3272 3600 3913 22650 1698 2509 2934 3277 3604 3918 22700 1700 2512 2937 3281 3609 3923 22750 1702 2515 2941 3285 3614 3928 22800 1704 2518 2945 3290 3619 3933 22850 1705 2521 2949 3294 3623 3938 22900 1707 2524 2953 3298 3628 3944 22950 1709 2527 2957 3302 3633 3949 23000 1711 2530 2960 3307 3637 3954 23050 1713 2533 2964 3311 3642 3959 23100 1715 2536 2968 3315 3647 3964 23150 1717 2539 2972 3320 3651 3969 23200 1718 2542 2976 3324 3656 3974 23250 1720 2545 2979 3328 3661 3979 23300 1722 2548 2983 3332 3666 3984 23350 1724 2551 2987 3337 3670 3990 23400 1726 2554 2991 3341 3675 3995 23450 1728 2557 2995 3345 3680 4000 23500 1730 2560 2999 3349 3684 4005 23550 1731 2563 3002 3354 3689 4010 23600 1733 2566 3006 3358 3694 4015 23650 1735 2569 3010 3362 3699 4020 23700 1737 2572 3014 3367 3703 4025 23750 1739 2575 3018 3371 3708 4031 23800 1741 2578 3022 3375 3713 4036 23850 1742 2581 3025 3379 3717 4041 23900 1744 2584 3029 3384 3722 4046 23950 1746 2587 3033 3388 3727 4051 24000 1748 2590 3037 3392 3731 4056 24050 1750 2593 3041 3397 3736 4061 24100 1752 2596 3045 3401 3741 4066 24150 1754 2599 3048 3405 3746 4071 24200 1755 2602 3052 3409 3750 4077 24250 1757 2605 3056 3414 3755 4082 24300 1759 2608 3060 3418 3760 4087 24350 1761 2611 3064 3422 3764 4092 24400 1763 2614 3068 3426 3769 4097 24450 1765 2617 3071 3431 3774 4102 24500 1767 2620 3075 3435 3779 4107 24550 1768 2623 3079 3439 3783 4112 24600 1770 2626 3083 3444 3788 4117 24650 1772 2629 3087 3448 3793 4123 24700 1774 2632 3091 3452 3797 4128 24750 1776 2635 3094 3456 3802 4133 24800 1778 2638 3098 3461 3807 4138 24850 1780 2641 3102 3465 3811 4143 24900 1781 2644 3106 3469 3816 4148 24950 1783 2647 3110 3474 3821 4153 25000 1785 2650 3114 3478 3826 4158 25050 1787 2653 3117 3482 3830 4163 25100 1789 2656 3121 3486 3835 4169 25150 1791 2659 3125 3491 3840 4174 25200 1792 2662 3129 3495 3844 4179 25250 1794 2665 3133 3499 3849 4184 25300 1796 2668 3136 3503 3854 4189 25350 1798 2671 3140 3508 3858 4194 25400 1800 2674 3144 3512 3863 4199 25450 1802 2677 3148 3516 3868 4204 25500 1804 2680 3152 3521 3873 4210 25550 1805 2682 3156 3525 3877 4215 25600 1807 2685 3159 3529 3882 4220 25650 1809 2688 3163 3533 3887 4225 25700 1811 2691 3167 3538 3891 4230 25750 1813 2694 3171 3542 3896 4235 25800 1815 2697 3175 3546 3901 4240 25850 1817 2700 3179 3550 3906 4245 25900 1818 2703 3182 3555 3910 4250 25950 1820 2706 3186 3559 3915 4256 26000 1822 2709 3190 3563 3920 4261 26050 1824 2712 3194 3568 3924 4266 26100 1826 2715 3198 3572 3929 4271 26150 1828 2718 3202 3576 3934 4276 26200 1830 2721 3205 3580 3938 4281 26250 1831 2724 3209 3585 3943 4286 26300 1833 2727 3213 3589 3948 4291 26350 1835 2730 3217 3593 3953 4296 26400 1837 2733 3221 3598 3957 4302 26450 1839 2736 3225 3602 3962 4307 26500 1841 2739 3228 3606 3967 4312 26550 1842 2742 3232 3610 3971 4317 26600 1844 2745 3236 3615 3976 4322 26650 1846 2748 3240 3619 3981 4327 26700 1848 2751 3244 3623 3986 4332 26750 1850 2754 3248 3627 3990 4337 26800 1852 2757 3251 3632 3995 4342 26850 1854 2760 3255 3636 4000 4348 26900 1855 2763 3259 3640 4004 4353 26950 1857 2766 3263 3645 4009 4358 27000 1859 2769 3267 3649 4014 4363 27050 1861 2772 3270 3653 4018 4368 27100 1863 2775 3274 3657 4023 4373 27150 1865 2778 3278 3662 4028 4378 27200 1867 2781 3282 3666 4033 4383 27250 1868 2784 3286 3670 4037 4389 27300 1870 2787 3290 3675 4042 4394 27350 1872 2790 3293 3679 4047 4399 27400 1874 2793 3297 3683 4051 4404 27450 1876 2796 3301 3687 4056 4409 27500 1878 2799 3305 3692 4061 4414 27550 1880 2802 3309 3696 4066 4419 27600 1881 2805 3313 3700 4070 4424 27650 1883 2808 3316 3704 4075 4429 27700 1885 2811 3320 3709 4080 4435 27750 1887 2814 3324 3713 4084 4440 27800 1889 2817 3328 3717 4089 4445 27850 1891 2820 3332 3722 4094 4450 27900 1892 2823 3336 3726 4098 4455 27950 1894 2826 3339 3730 4103 4460 28000 1896 2829 3343 3734 4108 4465 28050 1898 2832 3347 3739 4113 4470 28100 1899 2833 3348 3740 4114 4472 28150 1900 2834 3349 3741 4115 4473 28200 1900 2835 3349 3741 4115 4473 28250 1901 2836 3350 3742 4116 4474 28300 1902 2836 3350 3742 4116 4474 28350 1902 2837 3351 3743 4117 4475 28400 1903 2838 3351 3743 4117 4476 28450 1904 2838 3351 3744 4118 4476 28500 1904 2839 3352 3744 4118 4477 28550 1905 2840 3352 3745 4119 4477 28600 1906 2840 3353 3745 4120 4478 28650 1906 2841 3353 3745 4120 4478 28700 1907 2842 3354 3746 4121 4479 28750 1908 2842 3354 3746 4121 4480 28800 1908 2843 3354 3747 4122 4480 28850 1909 2844 3355 3747 4122 4481 28900 1909 2844 3355 3748 4123 4481 28950 1910 2845 3356 3748 4123 4482 29000 1911 2846 3356 3749 4124 4483 29050 1911 2846 3357 3749 4124 4483 29100 1912 2847 3357 3750 4125 4484 29150 1913 2848 3358 3750 4125 4484 29200 1913 2848 3358 3751 4126 4485 29250 1914 2849 3358 3751 4126 4485 29300 1915 2850 3359 3752 4127 4486 29350 1915 2850 3359 3752 4128 4487 29400 1916 2851 3360 3753 4128 4487 29450 1917 2852 3360 3753 4129 4488 29500 1917 2852 3361 3754 4129 4488 29550 1918 2853 3361 3754 4130 4489 29600 1919 2854 3361 3755 4130 4490 29650 1919 2855 3362 3755 4131 4490 29700 1920 2855 3362 3756 4131 4491 29750 1921 2856 3363 3756 4132 4491 29800 1921 2857 3363 3757 4132 4492 29850 1922 2857 3364 3757 4133 4492 29900 1923 2858 3364 3758 4133 4493 29950 1923 2859 3365 3758 4134 4494 30000 1924 2859 3365 3759 4135 4494 30050 1925 2860 3365 3759 4135 4495 30100 1925 2861 3366 3760 4136 4495 30150 1926 2861 3366 3760 4136 4496 30200 1926 2862 3367 3761 4137 4497 30250 1927 2863 3367 3761 4137 4497 30300 1928 2863 3368 3762 4138 4498 30350 1928 2864 3368 3762 4138 4498 30400 1929 2865 3368 3763 4139 4499 30450 1930 2865 3369 3763 4139 4499 30500 1930 2866 3369 3764 4140 4500 30550 1931 2867 3370 3764 4140 4501 30600 1932 2867 3370 3765 4141 4501 30650 1932 2868 3371 3765 4141 4502 30700 1933 2869 3371 3765 4142 4502 30750 1934 2869 3371 3766 4143 4503 30800 1934 2870 3372 3766 4143 4504 30850 1935 2871 3372 3767 4144 4504 30900 1936 2871 3373 3767 4144 4505 30950 1936 2872 3373 3768 4145 4505 31000 1937 2873 3374 3768 4145 4506 31050 1938 2874 3374 3769 4146 4506 31100 1938 2874 3375 3769 4146 4507 31150 1939 2875 3375 3770 4147 4508 31200 1940 2876 3375 3770 4147 4508 31250 1940 2876 3376 3771 4148 4509 31300 1941 2877 3376 3771 4148 4509 31350 1942 2878 3377 3772 4149 4510 31400 1942 2878 3377 3772 4150 4511 31450 1943 2879 3378 3773 4150 4511 31500 1943 2880 3378 3773 4151 4512 31550 1944 2880 3378 3774 4151 4512 31600 1945 2881 3379 3774 4152 4513 31650 1945 2882 3379 3775 4152 4513 31700 1946 2882 3380 3775 4153 4514 31750 1947 2883 3380 3776 4153 4515 31800 1947 2884 3381 3776 4154 4515 31850 1948 2884 3381 3777 4154 4516 31900 1949 2885 3382 3777 4155 4516 31950 1949 2886 3382 3778 4155 4517 32000 1950 2886 3382 3778 4156 4518 32050 1951 2887 3383 3779 4156 4518 32100 1951 2888 3383 3779 4157 4519 32150 1952 2888 3384 3780 4158 4519 32200 1953 2889 3384 3780 4158 4520 32250 1953 2890 3385 3781 4159 4520 32300 1954 2890 3385 3781 4159 4521 32350 1955 2891 3385 3782 4160 4522 32400 1955 2892 3386 3782 4160 4522 32450 1956 2893 3386 3783 4161 4523 32500 1957 2893 3387 3783 4161 4523 32550 1957 2894 3387 3784 4162 4524 32600 1958 2895 3388 3784 4162 4525 32650 1959 2895 3388 3784 4163 4525 32700 1959 2896 3389 3785 4163 4526 32750 1960 2897 3389 3785 4164 4526 32800 1960 2897 3389 3786 4165 4527 32850 1961 2898 3390 3786 4165 4527 32900 1962 2899 3390 3787 4166 4528 32950 1962 2899 3391 3787 4166 4529 33000 1963 2900 3391 3788 4167 4529 33050 1964 2901 3392 3788 4167 4530 33100 1964 2901 3392 3789 4168 4530 33150 1965 2902 3392 3789 4168 4531 33200 1966 2903 3393 3790 4169 4532 33250 1966 2903 3393 3790 4169 4532 33300 1967 2904 3394 3791 4170 4533 33350 1968 2905 3394 3791 4170 4533 33400 1968 2905 3395 3792 4171 4534 33450 1969 2906 3395 3792 4172 4534 33500 1970 2907 3395 3793 4172 4535 33550 1970 2907 3396 3793 4173 4536 33600 1971 2908 3396 3794 4173 4536 33650 1972 2909 3397 3794 4174 4537 33700 1972 2909 3397 3795 4174 4537 33750 1973 2910 3398 3795 4175 4538 33800 1974 2911 3398 3796 4175 4539 33850 1974 2912 3399 3796 4176 4539 33900 1975 2912 3399 3797 4176 4540 33950 1976 2913 3399 3797 4177 4540 34000 1976 2914 3400 3798 4177 4541 34050 1977 2914 3400 3798 4178 4541 34100 1977 2915 3401 3799 4178 4542 34150 1978 2916 3401 3799 4179 4543 34200 1979 2916 3402 3800 4179 4543 34250 1979 2917 3402 3800 4180 4544 34300 1980 2917 3402 3800 4181 4544 34350 1981 2918 3403 3801 4181 4545 34400 1981 2919 3403 3801 4182 4545 34450 1982 2919 3404 3802 4182 4546 34500 1983 2920 3404 3802 4183 4546 34550 1983 2921 3405 3803 4183 4547 34600 1984 2921 3405 3803 4184 4548 34650 1984 2922 3405 3804 4184 4548 34700 1985 2923 3406 3804 4185 4549 34750 1986 2923 3406 3805 4185 4549 34800 1986 2924 3407 3805 4186 4550 34850 1987 2925 3407 3806 4186 4550 34900 1988 2925 3407 3806 4187 4551 34950 1988 2926 3408 3807 4187 4552 35000 1989 2927 3408 3807 4188 4552

ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 2.6% 3.4% 3.8% 4.2% 4.6% 5.0%

D1. In any initial child support proceeding commenced within six months of the birth of a child, except for good cause shown or the agreement of the parties, in addition to any other child support obligations established pursuant to this section, the child support order shall provide that the parents pay in proportion to their gross incomes, as used for calculating the monthly support obligation, any reasonable and necessary unpaid expenses of the mother’s pregnancy and the delivery of such child. Any amount paid under this subsection shall not be adjusted by, nor added to, the child support calculated in accordance with subsection G.

(a) Calculating each parent’s custody share by adding the total number of days, as defined in subdivision G 3 (c), that each parent has with each child and dividing such total number of days by the number of children of the parties to determine the average number of shared custody days; and

(b) Using each parent’s custody share as determined in subdivision G 4 (a) for each parent to calculate the child support owed, in accordance with the provisions of subdivision G 3.

(a) Calculating the sole custody support obligation by:

(b) Calculating the shared custody child support obligation by:

(c) Determining the total amount of child support owed by one parent to the other. Where one parent owes both the sole custody support obligation and the shared custody support obligation to the other parent, the total of both such obligations calculated pursuant to subdivisions G 5 (a) and G 5 (b) shall be added to determine the total amount of child support owed by one parent to the other. Where one parent owes one such obligation to the other parent, and such other parent owes the other such obligation to the other such parent, the parent owing the greater obligation amount to the other parent shall pay the difference between the obligations to such other parent.

(a) Calculating the split custody child support obligation by:

(b) Calculating the shared custody child support obligation by:

(c) Determining the total amount of child support owed by one parent to the other. Where one parent owes both the split custody support obligation and the shared custody support obligation to the other parent, the total of both such obligations calculated pursuant to subdivisions G 6 (a) and G 6 (b) shall be added to determine the total amount of child support owed by one parent to the other. Where one parent owes one such obligation to the other parent, and such other parent owes the other such obligation to the other such parent, the parent owing the greater obligation amount to the other parent shall pay the difference between the obligations to such other parent.

History. 1988, c. 907; 1989, cc. 578, 579, 599; 1991, cc. 545, 588; 1992, cc. 79, 716, 860; 1995, cc. 1, 481; 1996, cc. 491, 947, 1029; 1998, c. 618; 1999, cc. 690, 808, 836; 2000, cc. 219, 305, 376, 384, 461; 2001, cc. 193, 809; 2002, cc. 650, 747; 2003, c. 885; 2004, cc. 907, 1008; 2005, c. 758; 2006, cc. 785, 798; 2008, c. 697; 2009, c. 713; 2010, c. 243; 2014, c. 667; 2015, c. 510; 2018, cc. 21, 22, 110, 191; 2020, c. 177.

Cross references.

As to standards and duties of neutrals conducting dispute resolution proceeding involving support of minor children, see § 8.01-576.9 .

As to disclosure of confidential information by mediator in disputes involving support of minor children, see § 8.01-581.24 .

As to formula for determination of pendente lite spousal support, see § 16.1-278.17:1.

As to support of a committed juvenile, see § 16.1-290.

As to child support for child placed in foster care by court, see § 63.2-909 .

As to computation of support for purposes of administrative support order, see § 63.2-1918 . As to exchange of financial information by parties affected by a support order, see § 63.2-1920 . As to administrative review of support order, and presentation of proposed modifications to the court, see § 63.2-1921 .

Editor’s note.

Acts 2003, c. 885, cl. 7, provides: “That all current members of the collegial bodies whose terms have been modified by this act shall be eligible, if reappointed, to the full number of terms provided by this act regardless of prior service.”

Acts 2005, c. 758, cl. 2, provides: “That this act shall not be construed to affect existing appointments, made by the Senate Committee on Privileges and Elections, for which the terms have not expired. However, any new appointments made after July 1, 2005 shall be made in accordance with the provisions of this act.”

Acts 2010, c. 243, cl. 3, provides: “That the Department of Social Services shall refund to any parent the full amount such parent paid that is solely attributable to, and required by, clause (iii) of subdivision G 1 of § 20-108.2 of the Code of Virginia, as such clause existed immediately prior to the enactment of this act.”

The Virginia Code Commission authorized the substitution of “Senate Committee on the Judiciary” for “Senate Committee for Courts of Justice” in subsection H. March 10, 2021.

The 1999 amendments.

The 1999 amendment by c. 690 substituted “means” for “shall mean” in the fourth sentence of subsection B; substituted “means” for “shall mean” near the beginning of subsection C; and added the present third sentence in subsection F.

The 1999 amendments by cc. 808 and 836 are identical, and substituted “means” for “shall mean” in the fourth sentence of subsection B; substituted “means” for “shall mean” in the first sentence of subsection C; in subdivision G 1, substituted “Sole custody support. The sole custody” for “Except in cases involving split custody or shared custody, a,” added “Split custody support” to the beginning of subdivision G 2, rewrote subdivision G 3, which formerly read: “In cases involving shared custody, the amount of child support to be paid is the difference between the amounts owed by each parent to the other parent, with the parent owing the larger amount paying the difference to the other parent. To compute the monthly amount to be paid by one parent to the other parent, the following calculations shall be made,” rewrote subdivision G 3 (a) which formerly read: “The ‘basic child support obligation’ of each parent shall be the ‘total shared support’ multiplied by the other parent’s ‘custody share.’ The ‘total shared support’ of both parties equals statutory guideline amount determined pursuant to subsection B for the combined income of the parties and the number of shared children multiplied by 1.25. A parent’s ‘custody share’ equals the number of days that parent has physical custody of a shared child per year divided by the number of days in the year,” rewrote subdivision G 3 (b) which formerly read: “To each parent’s ‘basic child support obligation’ shall be added the other parent’s costs of health care coverage, to the extent allowable by subsection E, and the other parent’s work-related child care costs to the extent allowable by subsection F,” rewrote the first two sentences in subdivision G 3 (c) which formerly read: “The obligation of each parent to the other shall be then computed by multiplying each parent’s percentage of the parents’ monthly combined gross income by the support obligation obtained in subdivision G 3 (b).

“The shared custody rules set forth herein apply when each parent has physical custody of a child or children born of the parties, born of either parent and adopted by the other parent, or adopted by both parents, for more than 110 days of the year,” redesignated the former last sentence in subdivision G 3 (c) as the first sentence in subdivision G 3 (d), and in subdivision G 3 (d), inserted “Minimum standards” and added the last sentence, and added subdivision G 3 (e).

The 2000 amendments.

The 2000 amendment by c. 219, in the first sentence of subsection H, substituted “October 31, 2001” for “July 1, 1990” and “three” for “four.”

The 2000 amendment by c. 305, in subdivision G 3 (b), deleted “and this amount shall be added to the shared custody support amount as calculated herein” at the end of the fifth sentence, and added the last three sentences, in subdivision G 3 (d), in the second sentence, substituted “either party” for “the payee” near the beginning, and substituted “then the shared custody support calculated pursuant to this subsection shall not be the presumptively correct support and the court may consider whether the sole custody support or the shared custody support is more just and appropriate” for “there shall be a presumption that the sole custody guideline calculation shall apply” at the end, and added subdivision G 3 (f).

The 2000 amendment by c. 376, in subsection B, in the third sentence, inserted “unless one of the following exemptions applies” and substituted “sole custody child support obligation as computed pursuant to subdivision G 1 is less than $65 per month, there shall be a presumptive minimum child support obligation of $65 per month payable by the payor parent” for “combined monthly gross income is less than $599, the presumptive child support obligation shall be $65 per month,” and inserted the present fourth sentence.

The 2000 amendment by c. 384 inserted “and dental care coverage” in subsection E.

The 2000 amendment by c. 461 substituted “an order” for “a pre-existing order” in two places in the third paragraph of subsection C.

The 2001 amendments.

The 2001 amendment by c. 193, in subsection H, rewrote the first sentence, which formerly read: “The Secretary of Health and Human Resources shall ensure that the guideline set out in this section is reviewed by October 31, 2001, and every three years thereafter, by a panel which includes representatives of the courts, the executive branch, the General Assembly, the bar, custodial and noncustodial parents and child advocates.”

The 2001 amendment by c. 809 rewrote the third sentence in the third paragraph of subsection C, which formerly read: “For purposes of this subsection, spousal support included in gross income shall be limited to spousal support paid pursuant to an order or written agreement and spousal support shall be deducted from the gross income of the payor when paid pursuant to an order or written agreement between the parties to the present proceeding”; and inserted the present fourth and fifth paragraphs in subsection C.

The 2002 amendments.

The 2002 amendment by c. 650, in the third paragraph of subsection C, inserted the clause (i) designation and added clause (ii).

The 2002 amendment by c. 747, effective October 1, 2002, in subsection A, substituted “Title 16.1 or 63.2” for “Title 16.1 or 63.1” in the first sentence; and substituted “Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subject to the provisions of § 63.2-1918 ” for “Chapter 13 (§ 63.1-249 et seq.) of Title 63.1 and subject to the provisions of § 63.1-264.2” in the last sentence; substituted “and social services programs as defined in § 63.2-100 ” for “programs as defined in § 63.1-87” in the third paragraph of subsection C; substituted “§ 643.2-1900” for “§ 63.1-250” in subsection E; deleted “of this section” following “subsection B” in clause G 1 (i); and deleted “of this subsection” following “subdivision 1” in the first paragraph of subdivision G 2.

The 2003 amendments.

The 2003 amendment by c. 885, in paragraph G 3(c), substituted “24” for “twenty-four” twice; and rewrote subsection H.

The 2004 amendments.

The 2004 amendments by cc. 907 and 1008 are nearly identical, and added subdivision C 4 and made related changes; rewrote subsection D; added the last sentence in subsection F; in the first paragraph of subdivision G 1, deleted clause (ii), which formerly read: “all extraordinary medical expenses” and redesignated former clause (iii) as clause (ii) and clause (iv) as clause (iii); added the last sentence in the second paragraph of subdivision G 1; added the last sentence in subdivision G 2; rewrote the last sentence in subdivision G 3 b; and in subsection H, substituted “four” for “three” in the first paragraph and in the last paragraph, “quadrennial” for “triennial,” “four” for “three” and “2006” for “2005.”

The 2005 amendments.

The 2005 amendment by c. 758, in subsection H, substituted “comprised of four” for “that include four” in the first sentence, and “Rules” for “Privileges and Elections” in the second sentence.

The 2006 amendments.

The 2006 amendments by cc. 785 and 798 are identical, and deleted “§ 20-107.2 and” preceding “20-108.1” in the second sentence of subsection A.

The 2008 amendments.

The 2008 amendment by c. 697 inserted “for life” following “are imprisoned” in the fourth sentence of subsection B.

The 2009 amendments.

The 2009 amendment by c. 713, in subsection E, inserted “or that parent’s spouse” twice in the first sentence and added the second sentence; in subdivision G 1, in the first paragraph, inserted clause (iii), and made related changes, in the second paragraph, inserted “or that parent’s spouse,” in the second paragraph, inserted “or that parent’s spouse”; and in subdivision G 3 (b), inserted “or that parent’s spouse’s.”

The 2010 amendments.

The 2010 amendment by c. 243, effective April 7, 2010, deleted the last sentence in subsection E, which read: “Where the court orders that a custodial parent enroll a child in health care coverage sponsored by the Department of Social Services, the Department shall deduct the cost of the coverage prior to disbursement of the child support payment in accordance with § 63.2-1954.1 ”; and in subdivision G 1, deleted former clause (iii), which read: “cash medical support in cases where the child is a recipient of Medicaid or the Family Access to Medical Insurance Security Plan as set forth in clause (ii) of the definition of cash medical support in § 63.2-1900 ,” and redesignated former clause (iv) as clause (iii).

The 2014 amendments.

The 2014 amendment by c. 667, in subsection B, substituted “the statutory minimum” for “$65” twice in the third sentence, added the fourth sentence, and rewrote the table, and added the paragraph following the table; and in subsection D, deleted “that are in excess of $250 for any calendar year for each child who is the subject of the obligation” at the end of the first sentence.

The 2015 amendments.

The 2015 amendment by c. 510 rewrote subsection E, which read “Any costs for health care coverage as defined in § 63.2-1900 and dental care coverage, when actually being paid by a parent or that parent’s spouse, to the extent such costs are directly allocable to the child or children, and which are the extra costs of covering the child or children beyond whatever coverage the parent or that parent’s spouse providing the coverage would otherwise have, shall be added to the basic child support obligation.”

The 2018 amendments.

The 2018 amendments by cc. 21 and 191 are identical, and in the first sentence of subsection A, substituted “shared custody, or multiple custody arrangements pursuant to subdivisions G 4, 5, and 6,” for “or shared custody”; in subsection B, in the second table, substituted “ONE CHILD” for “ONE CHILDREN”; and added subdivisions G 4 through G 6.

The 2018 amendments by cc. 22 and 110 are identical, and in subsection B, added the last sentence to the first paragraph and substituted “ONE CHILD” for “ONE CHILDREN” in the second table.

The 2020 amendments.

The 2020 amendment by c. 177 added subsection D1.