So What’s New? 2016 Virginia Legislative Update
Each year in Virginia, July 1 is a magical day. Nearly every piece of legislation approved by the Virginia General Assembly and signed by the Governor in the first part of 2016 becomes effective on July 1. In 2016, there were approximately 780 bills ultimately signed by the Governor. One had to do with peanut taxes. Another dealt with duck blinds, and needless to say, most had nothing to do with mediation and family law issues. But a few of them relate directly to family law issues or mediations.
This article will summarize several of the 2016 amendments that you may want to know about if you’re involved in the world of Virginia separations and divorces. This is not intended to be a complete list, but our hope is to be sure we’ve covered the most critical changes.
Court-Referred Family Mediations
The modification to Va. Code § 20-124.4 (2016, H. 287, c. 507) increased mediator compensation for certain family cases by treating “custody or visitation” as a separate appointment from one for “child or spousal support.” Although this change shouldn’t change the mediation experience from the clients’ perspective, it is an indication of the increasing recognition by Virginia of the value that mediation adds. It is a widely-held belief that, although this may be a good start, there’s a very long way left to go to compensate mediators for the professionalism and value they bring. (But since we’re mediators, you’ll have to figure out how many grains of salt to take that with!)
Court Jurisdiction Over Separate Property
In a prior article, we reviewed how property might be classified as “separate” or “marital.” The general rule has always been that a court doing an “equitable distribution” has no ability to make decisions about “separate” property. But what happens when one divorcing spouse has possession of separate property that belongs to the other spouse? The revision to § 20-170.3 (2016, H. 404, c.559) gives the court the power to require the transfer the separate property to its owner.
Source of Pendente Lite Payments
In early 2015, our VaSupportCalc website made “pendente lite” spousal support calculations available to everyone at no cost. At about the same time, we published an article that described what pendente lite meant and the circumstances under which the calculator might be used.
The statute that addresses the award of pendente lite support (§ 20-103) did not identify where the funds to pay the support should come from. In a recent court case in Virginia, a divorcing spouse decided that he would use marital property to pay support while retaining post-separation income for himself, and the court concluded that there was nothing wrong with that result under the existing statute.
So the 2016 Virginia General Assembly revised the statute (2016, S. 70, c. 352) to make it clear that pendente lite support needs to be paid from post-separation income, not from marital property. The amendment does allow a court to come to a different conclusion “for good cause shown.”
“Fault” and “Spousal Support”
In mediation, often spousal support is one of the most difficult topics to discuss. Putting aside the topic of “fault,” just figuring out the amount and length of support IF ANY is tough because the factors provided by the legislature to determine amount and duration were anything but objective. And when the topic of “fault” gets added, it becomes even more complex. Why? Because in divorce mediation, there are only two people (the spouses) who have a vote on any decision. Without a unanimous decision (and with no one to break the tie), there’s no conclusion. Each spouse is left with his or her own opinion about the responsibility for the relationship breakup.
Let’s look at the spousal support topic outside of mediation for a moment. When courts think about spousal support, the thought process starts with a determination of whether spousal support can be awarded to the requesting spouse. If the court concludes that it can be awarded, the court then considers how much support and for how long.
To determine the whether question, there is a statute (§ 20-107.1) that says that if the court finds that there is are “fault” grounds for a divorce, the spouse at fault cannot receive support. But the next sentence of the same paragraph says that the court has leeway to award support after all if the court finds “from clear and convincing evidence” that denying support “would constitute a manifest injustice.” So the court ultimately has discretion to award support even if the recipient was at fault for the dissolution of the marriage.
Once the court figures out the whether question, it’s on to the how much and how long questions. There have always been a list of factors in § 20-107.1 that the court must consider in determining the amount and duration. Prior to July 1, 2016, what role did fault have? One school of thought about was that, since “fault” was not included in the statute’s list of factors to be considered, the amount of fault each party contributed to the end of a marriage should not be considered when a court determined how much support would be awarded and for how long.
But then the final consideration in the list of factors found in § 20-107.1 is notably broad and vague: “such other factors…as are necessary to consider the equities between the parties.” This might suggest that the court could consider just about anything it wanted to. But we used the “…” to quote this last factor, there was only one example included that might have given some guidance about what this provision might contemplate: “including the tax consequences to each party.” So was this provision really only about making sure the support amount took taxes into account? Maybe “fault” still couldn’t be taken into account?
At the same time, all of this word analysis ignored a reality observed by many divorcing spouses and their lawyers. It seemed to them that fault did somehow play into these determinations.
Well, the 2016 legislature clarified this point (2016, H. 668, c. 615) by adding another example along with the reference to tax consequences. The additional language might have made the already difficult conversations about spousal support even more difficult. Starting July 1, 2016, the court is permitted to consider other factors including: “the circumstances and factors that contributed to the dissolution, specifically including any ground of divorce.” Now there’s the potential for an even more heated conversation about fault and spousal support. It may some time as the courts begin to interpret how the legislature wanted judges to take the fault circumstances into account.
No Legal Advice…Sorry!
Remember that nothing in our website should be considered legal advice. Please consult an attorney to see as to how these statutes and their amendments might affect your situation.