Summary of Virginia Divorce Law:
The following court/administrative fees are normally incurred in divorce cases:
§ 20-91. Grounds for divorce from bond of matrimony; contents of decree.
(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.)
Yes. In fact, separation agreements are “favored” under Virginia law. In the case of Martin v. Martin, (Va.App. 12-12-2006), the Court of Appeals of Virginia ruled that:
In cases where there are no children, the existence of a separation agreement actually reduces the separation period required for divorce under Virginia law from 12 to 6 months. In this regard, Section 20-91 of the Virginia Code provides as follows:
Non-Titled Spouse is Entitled to Percentage Award:
In Virginia (as in most states) a pension is distributed in divorce though a percentage award of the benefits. This helps avoid the expensive and burdensome process of requiring a calculation of the pension’s present value. When the pension is in pay status, both spouses receive their respective shares of the payments.
Determining the Percentage Award:
The percentage award to the non-titled spouse is determined by multiplying the marital share (which is generally defined as the number of years of creditable retirement service during the marriage) multiplied by a percentage (not to exceed 50%). The foregoing number is then multiplied by the pension benefits.
Court’s Authority to Direct that Spouse be Designated as Beneficiary:
Virginia courts also have the authority to order the titled spouse (also known as the participant spouse) to designate the non-titled spouse/former spouse as a beneficiary during the life of the beneficiary of all or a portion of any survivor or annuity plan. However, the Court’s authority is subject to any limitations or rules under federal ERISA statutes. The Court’s authority to direct designation of the non-participant spouse as beneficiary is specifically set forth in the Section 20-107.3(G)(2), which states as follows:
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. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.
Preparation/Submission of QDRO Forms:
The distribution of pension benefits is effectuated through a specific type of order: the Qualified Domestic Relations Order (QDRO). Even if the parties enter into a marital settlement agreement that provides for a division of pension benefits, the non-titled spouse must ensure that a QDRO is entered by the Court and submitted to the Plan Administrator. It is recommended that a proposed QDRO be submitted to the Plan Administrator for review and approval prior to the entry of an equitable distribution order. Thereafter, it is important for the non-titled spouse to obtain written confirmation from the Plan Administrator after receipt of a certified copy of the QDRO. At bottom, a non-titled spouse should make every effort to ensure that the QDRO terms are acceptable to and will be honored by the plan.
Authority of Virginia Courts to Divide Marital Property:
In divorce proceedings that involve equitable distribution (division) of marital property, Virginia courts have the authority to direct either a lump-sum payment or periodic fixed payments due and payable on specific dates. This authority is specifically conferred upon Virginia Courts by Section 20-107.3(D) of the Virginia Code. If the Court orders a lump sum, the payee spouse is entitled to interest at either the interest rate set forth in the Court’s Order or, if the order makes no provision for interest, at the rates specified in Section 6.1-330.10 of the Virginia Code. In determining how to distribute marital property, the Virginia courts may consider the tax consequences that will result from the Court’s award and/or in connection with the division or transfer of marital property.
Marital Property: Definition and Exceptions to the Rule:
Generally, assets that are acquired during the period of the parties’ marriage are considered “marital” asserts that are subject to equitable distribution. However, there are certain exceptions to that rule. One exception is personal injury and workers’ compensation awards. Awards received by one of the spouses for personal injuries or workers’ compensation claims are considered “hybrid” assets. The amounts that were (or are anticipated to be) received are divided into two parts. The first part consists of the portion of the award that is attributable to the injured party’s loss of wages. The second part of the award consists of the amount attributable to medical losses and pain and suffering. The first portion (lost wages) is marital, while the second portion (pain and suffering) is separate property of the party receiving the award.
Transmutation of Premarital Assets Under Virginia Law:
Generally, under Virginia law, pre-marital assets (assets owned by one of the spouses prior to the marriage) are considered his or her “separate” property. Such pre-marital assets are generally not subject to equitable distribution. However, there are exceptions. The most notable exception is where a pre-marital assets increases in value during the marriage as a result of the active efforts of one or both of the spouses. This is sometimes referred to as “transmutation”. The active increase in value (appreciation) that occurred during the marriage is considered marital, to be valued and, thereupon, divided in accordance with the statutory equitable distribution factors. A party asserting that appreciation of a marital asset is marital must demonstrate substantial efforts. A miniscule effort would not justify the transmutation of an otherwise pre-marital asset into the marital estate.
Apportioning the Parties’ Debt in a Virginia Divorce Case
In light of today’s challenging economic environment, many divorce cases focus on how the parties’ debts and liabilities will be apportioned. The Virginia Code confers authority upon courts to classify and divide debts in divorce cases. Sections 20-107.3(A)(4) and (5) of the Virginia Code provide:
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 A 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.
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