Property Distribution - § 5-3 - Part 2

§ 5-3. Criteria/Award

2010–Schuman v. Schuman, Va. Ct. of Appeals, Unpublished, No. 0631-09-4
Trial court did not err in refusing to adjust its equitable distribution award based on the potential tax consequences to the parties. Although Wife’s expert testified as to the potential tax liability facing the parties and advised wife to file amended tax returns and retain a tax attorney, the trial court noted that the IRS had neither investigated the parties’ tax returns nor conducted an audit, and that no tax liability existed at the time of trial. On those grounds, the trial court found the claim of potential tax liability too speculative, and refused to adjust the equitable distribution award. Although Va. Code §20-107.3(E)(9) requires the court to consider tax consequences when formulating an equitable distribution award, it does not mandate an adjustment to the award for tax consequences, regardless of how certain or uncertain.

2010–Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Trial court did not err in awarding husband $6,000 of total $16,750 of marital equity in the marital residence and 40% of wife’s retirement accounts, where the marriage lasted less than two years, wife had made the majority of monetary and nonmonetary contributions, and wife had made numerous post- separation payments that directly benefited husband and his daughter from a previous marriage, such as the mortgage, utilities, and support payments while husband remained unemployed and living in the marital residence.

2009–Lewis v. Lewis, 53 Va. App. 528
Trial court erred in ordering Husband to obtain and maintain life insurance policy for the benefit of Wife. Although Wife was entitled to some remedy for Husband’s destruction of her right to a lifetime pension under the Property Settlement Agreement, the trial court did not have the authority to order Husband to obtain life insurance for the benefit of Wife when the Property Settlement Agreement did not address the life insurance in any way. Absent agreement of the parties in a Property Settlement Agreement, Va. Code §20-107.3(G)(2) prohibits a court from ordering that a person obtain life insurance on himself for the benefit of a former spouse.

2009–Tye v. Tye, Va. Ct. of Appeals, Unpublished, No. 0833-08-1
Trial court did not err in granting wife 65% and husband 35% of the net proceeds from the sale of the parties’ marital residence. Following the parties’ separation, husband was permitted to occupy the residence on the condition that he would reimburse wife for her continued payment of the mortgage and comply with court orders to cooperate in placing the house on the market. Husband failed to do either. Furthermore, husband’s failure to vacate the residence to permit it to be placed on the market and his failure to maintain the house while occupying it caused the residence to fall into disrepair and depreciate in value, further justifying the 65/35 award.

2009–Attiliis v. Attiliis, Va. Ct. of Appeals, Unpublished, No. 1087-08-4
Nothing in the divorce statutes empowers circuit courts to compel a spouse to contract for life insurance with the former spouse as the beneficiary. Va. Code §20-107.3(G)(2) explicitly excludes life insurance policies from the types of survivor benefit plans or annuity plans for which a court may order a party to designate a former spouse as beneficiary.
Consideration of negative non-monetary contributions to the well-being of the family, unlike waste/dissipation of assets, requires no showing of adverse economic impact. The well-being of the family relates to the effect on the family’s emotional welfare and condition. (citing Watts v. Watts, 40 Va. App. 685 (2003). Thus, an award for negative non-monetary contributions is separate and distinct from an award for waste/dissipation.

2008–Rosedale v. Rosedale, Va. Ct. of Appeals, Unpublished, No. 2414-07-4
Trial court did not err in awarding wife 65% of the overall value of the marital assets, based on evidence that, although husband was the primary breadwinner, wife’s nonmonetary contributions to the family far exceeded those made by husband. In addition to serving as primary caretaker for the parties’ daughter and home throughout the marriage, wife also cared for husband’s ailing parents while they lived in the marital residence, enabled husband to earn a college degree during the marriage, and managed the household while husband was away for extended periods. Husband was in good health, while wife suffered from a number of physical ailments. Evidence further established that wife had insufficient funds during the separation to meet her and her daughter’s needs, incurring significant debt and attorney’s fees as a result.

2008–Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not abuse discretion in awarding what amounted to a slightly higher rate of return on the marital share of a parcel of real property than on Husband’s separate share, given finding that Wife’s significantly higher income, which was marital property, contributed disproportionately to the parties’ ability to hold the property long enough to benefit from the market appreciation.

2008–Chretien v. Chretien, 53 Va. App. 200
So long as the basis for an award of property is proper, the trial court’s error in classifying the property is harmless if the court would have made the same award had it classified the property properly. Trial court’s error in classifying personal injury recovery as Wife’s separate property was harmless, as Court indicated on the record that, if the personal injury recovery was in fact marital, it would nonetheless award all of the recovery to Wife due to Husband’s negligence in causing the injury that led to the recovery.

2008–Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not err in awarding Wife 60% of the marital share of real estate upon finding that Wife made larger monetary contributions throughout most of the marriage; that despite Wife having agreed to Husband’s plan to stop working as a lab technician and operate his own construction business, Husband failed to work diligently at the business, choosing instead to sleep late and indulge in his marijuana habit; and that Husband’s marijuana addiction and his refusal to obtain treatment for it had sufficient negative impact on his monetary and non-monetary contributions to the family to support and unequal distribution.

2008–McIlwain v. McIlwain, 52 Va. App. 644
Trial court did not err in awarding Wife one-half of the fair-market-rental value of marital home for the period in which the divorce was pending, as part of the overall distribution of marital property. Husband made very few non-monetary contributions during marriage, and made significant negative monetary contributions by failing to pay the parties’ income taxes without Wife’s knowledge. Moreover, after the parties last separated, Husband used the marital home as his own separate residence, would not allow Wife to remain in the home, changed the locks, and refused to accept the responsibility for the marital tax problems that he created.

2007–Hosier v. Hosier, Va. Ct. of Appeals, Unpublished, No. 0767-06-1
Trial court did not err in ordering the sale of the marital home despite wife’s request that she be allowed to buy out husband’s interest and retain the home for herself and the children. The court found that wife’s evidence as to her ability to assume the indebtedness on the property and finance the purchase of husband’s interest was vague, unpersuasive, and insufficient to convince the court that such a purchase could be accomplished in a timely manner.

2007–Brooker v. Brooker, Va. Ct. of Appeals, Unpublished, No. 2445-96-1
Trial court did not err in admitting and considering evidence of Husband’s extramarital affair when making the equitable distribution award.

2007–Cote v. Cote, Va. Ct. of Appeals, Unpublished, No. 1008-06-4
The trial court did not abuse its discretion in awarding wife a 60% share of her retirement account. Although the evidence supported a finding that, although Husband may have made more significant monetary contributions over the course of the marriage, Wife worked full-time during most of the marriage and made substantial contributions as well. The evidence also supported a finding that Wife’s non-monetary contributions were more significant that Husband’s. Additionally, Wife did not have sufficient funds to meet her expenses.

2007–Strausbaugh v. Monroe, Va. Ct. of Appeals, Unpublished, No. 1040-06-3
The trial judge did not err in his use of the statutory marital share formula as set forth in Va. Code §20.107.3(G)(1) to calculate ex-Wife’s share of ex-Husband’s pension. br> The trial court did not modify the substantive provisions of the final divorce because “ Va. Code §20.107.3(K)(4) creates a limited exception to the strict directive of Rule 1:1 and gives the trial court continuing authority to modify the terms of the final decree’s retirement or pension provisions to effectuate the expressed intent of the original decree provided the modification is consistent with the substantive provisions of the original decree and not simply to adjust its terms in light of the parties’ changed circumstances.” Caudle v. Caudle, 18 Va. App. 795 (1994).

2007–Harrison v. Allegretto, Va. Ct. of Appeals, Unpublished, No. 1916-06-1
Trial court did not err by failing to apportion marital debt paid by Husband after the parties separated when making the equitable distribution award. Husband presented no documentation addressing the basis for the debts or substantiating his claim that the debts were marital.

2006–Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2
Trial court committed reversible error in awarding wife 65% of the marital value of the parties' residence when it considered facts not in evidence.

2006–Robbins v. Robbins, 48 Va. App. 466
Factors and circumstances leading to the dissolution of the marriage may be considered during equitable distribution–even if those factors have no financial impact on the marriage–as long as those factors detracted from the overall marital partnership. Trial court did not err in a 65/35 equitable distribution division of assets in favor of the husband where, inter alia, Wife’s romantic involvement with a co-worker was a precipitating event in the divorce and Husband made most of the monetary contributions to the marital estate.

2006–Hackemeyer v. Hackemeyer, Va. Ct. of Appeals, Unpublished, No. 1204-10-4
Trial court did not abuse its discretion in finding that Husband was not obligated for payments under the new mortgage. When Wife refinanced the mortgages and purchased Husband’s interest in the house, Husband’s obligation to make mortgage payments ceased under the terms of an August 2001 order, which required Husband to do no more than make first and second mortgage payments for the house.

2005–Bomar v. Bomar, 45 Va. App. 229
Trial court erred in concluding that it did not have the authority to order that wife, who received the marital residence as an equitable distribution award and was ordered to “assume any indebtedness secured by the property,” refinance the debt on the residence or take other steps to remove husband’s name from the debt. Virginia Code §20-107.3 clearly empowers the trial judge to condition the transfer of marital property upon terms that will not leave the other party at risk of financial ruin if the receiving party is not financially responsible.

2005–Burnette v. Burnete, Va. Ct. of Appeals, Unpublished, No. 1561-04-3
Trial court did not abuse its discretion in awarding Wife one-half of the difference between the eventual sale price of the marital residence and a higher price previously offered. Wife acquired a firm offer to buy the residence from a third party, but Husband objected to the sale, and instead offered to buy the residence himself for the same price. However, Husband later equivocated on his offer and refused to take action, resulting in the eventual sale of the home for approximately $13,000 less than the initial offer.

2005–King v. King, 46 Va. App. 677
Although the losses that gave rise to federal income tax refunds were generated by Husband’s separate property, the tax refunds were jointly-titled marital property, equally owned by the parties, and, pursuant to paragraph 14 of the Premarital Agreement, should have been equally divided.
Moreover, the loss to Husband’s property was but one of the factors that produced the amount of the award. Had the parties not filed jointly, the amount of the refund would have been substantially less, and the wage withholding of both parties contributed to the size of the refund.

2005–Irwin v. Irwin, 47 Va. App. 287
Trial court erred in ordering that, while Wife’s property interest vested and pension payments were due to her as of date of final decree, Husband was not liable for the difference between pendente lite spousal support paid and an amount equal to one-half of pension amount from the date of the final decree to the date Wife began receiving one-half of the pension under a Qualified Domestic Relations Order. The court’s refusal to require Husband to pay Wife directly her one-half share of the monthly pension while the Qualified Domestic Relations Order was pending was an abuse of discretion upon a finding that she was due payment from the final decree date.

2005–Morrill v. Morrill, 45 Va. App. 709
Trial court did not abuse its discretion in hearing forgery evidence for
purposes of equitable distribution where Wife amassed $86,000 in credit card debt under Husband’s name.

2005–Ranney v. Ranney, 45 Va. App. 17
Although not explicitly listed in Va. Code § 20-107(E) as a factor, the trial court did not err in considering wife’s misrepresentation to husband that she had been married only once before, when in fact she had been married four times previously, when determining the equitable distribution award.

2005–Wiese v. Wiese, 46 Va. App. 399
Trial court did not improperly consider child support in granting Wife the right of first refusal to purchase Husband’s share in the marital home. The court granted Wife the right of first refusal based on the facts that Wife lived in the home, had primary custody of the children, and the children would benefit in staying in the only house they had ever known.

2004–Hoebelheinrich v. Hoebelheinrich, 43 Va. App. 543
Trial court did not err in awarding wife half of the value of husband’s medical practice. Record revealed that parties were married for 22 years; that wife worked while husband attended medical school; that when husband graduated from medical school, the parties agreed that wife would stay home to raise children; that wife raised four children well, involving them in numerous activities; and that wife was accustomed to a comfortable life style, belonged to country clubs, purchased new vehicles on a regular basis, and never “wanted for anything.”

2003–Buchanan v. Buchanan, Va. Ct. of Appeals, Unpublished, No. 2244-02-2
Trial court did not err in refusing to explain fully to Husband the degree of consideration it gave to every factor of Code of Virginia §20-107.3. The court identified and valued each asset and debt, and indicated that it had “reviewed all pleadings, evidence, and argument of counsel,” and “weighed” them pursuant to the §20-107.3 factors. An appellate court must be able to determine from the record that the trial court gave substantive consideration to the evidence as it relates to Code of Virginia §20-107.3.

2003–Buchanan v. Buchanan, Va. Ct. of Appeals, Unpublished, No. 2244-02-2
The trial court did not err in prohibiting Husband from encumbering or disposing of his boat, which was marital property titled solely in his name, for purposes other than to satisfy the monetary award to his Wife. Since the boat was titled solely in Husband’s name, the trial court lacked the authority to order its division or transfer, under Code of Virginia §20-107.3(C). Nevertheless, that subsection did not prohibit the court from placing restrictions on any proceeds received by Husband from a sale of the boat before he satisfied the judgment owed to Wife. By placing the condition on the sale of the boat, the court acted properly to protect Wife’s marital interest in the boat.

2000–Iverson v. Iverson, Va. Ct. of Appeals, Unpublished, No. 0314-99-2
The trial court did not err in making an equitable distribution award that resulted in Husband receiving a significantly higher percentage of the tax liability. The trial court is not required to frame its ruling to equalize between the parties, or to minimize or eliminate all tax consequences to one party.

1997--- Newland v. Newland, Va. Ct. of Appeals, Unpublished, No. 1837-96-4
Courts are required to consider the tax consequences before reaching a decision on equitable distribution, but are not required to minimize or eliminate all negative tax consequences to a party in doing so.

1995–Zitelli v. Zitelli, Va. Ct. of Appeals, Unpublished, No. 0122-94-4
Husband was not entitled to a credit for potential capital gains taxes incurred as a result of the future sale of the residence where he failed to produce evidence that he would be assessed those taxes. Although the trial court is directed by the statute to consider the tax implications in making an award of equitable distribution, taxes which are merely potential and may never in fact be assessed are not contemplated by statute.

1995–O’Loughlin v. O’Loughlin, 20 Va. App. 522
Trial court did not err in concluding that husband’s adultery was a negative non-monetary contribution to the marriage and could therefore be considered both under Va. Code §107.3(E)(5) as well as under §20-107.3(E)(1) for purposes of dividing the marital property. Evidence established that wife worked outside the home and made nearly one hundred percent of the non-monetary contributions to the marriage. Not only did husband make no positive nonmonetary contributions, his adultery hindered wife’s efforts to contribute to the partnership in a non-monetary way. The Court of Appeal’s ruling in Aster v. Gross, 7 Va. App. 1 (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, not to conclusively establish that the negative impact of marital fault or other behavior could not be considered in light of other factors such as the parties’ nonmonetary contributions.

1990–Stainback v. Stainback, 11 Va. App. 13
Husband’s potential future inheritance was irrelevant to the economic potential of husband in determining the equitable distribution award owed wife. The marital partnership notion terminates with the termination of the marriage and whatever marital wealth has been accumulated is to be equitably distributed at that time. It is axiomatic that whatever the future may hold for either of the parties has no bearing on the issue of the appropriate division of what has been accumulated by their contributions during the marriage.

1988–Aster v. Gross, 7 Va. App. 1
Trial court did not err in refusing to hear additional evidence by wife of each instance of husband’s adultery for purposes of equitable distribution. 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, and need not be considered. A trial court 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. Wife did not assert or suggest that the multiple acts of adultery resulted in adverse economic consequences to the parties.

1986–Papuchis v. Papuchis, 2 Va. App. 130
The Court of Appeals declined to adopt a rebuttable presumption in favor of an equal division of marital property. The Virginia General Assembly created a statutory scheme that requires courts to determine the amount and method of the distribution of marital property after consideration of defined factors. The use of a presumption would undermine the legislature’s recognition of marriage as a “partnership to which each party contributes, albeit not always equally, to the well being of the family unit.”

1985–McGinnis v. McGinnis, 1 Va. App. 272
Trial court’s allotment to wife of personal property which, though marital, was titled solely in husband’s name, was contrary to the language of Va. Code §20-107.3(C).

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