Property Distribution - § 5-3

§ 5-3. Criteria/Award

2018–Garza v. Garza, Va. Ct. of Appeals, Unpublished, No. 1286-18-4
The trial court did not err in determining that Wife was entitled to a portion of the marital share of Husband’s retirement annuity. Although Husband established that Wife had committed adultery, the evidence also showed that the parties resumed cohabitation for approximately twenty-eight years after Wife’s affair. Furthermore, the record demonstrates that the trial court, in dividing the parties’ property, properly considered all of the equitable distribution factors, including the parties’ monetary and non-monetary contributions to the well-being of the family.

2018–Ware v. Srinivasan, Va. Ct. App. Rec. No. 1568-17-2
The trial court did not abuse its discretion in reimbursing Husband for his post-separation mortgage payments.

2017–Wiley v. Wiley, Va. Ct. of Appeals, Unpublished, No. 0844-16-4
In awarding an unequal division of the marital assets to wife, the trial court did not abuse its discretion by considering the impact, economic or otherwise, that husband’s adulterous affair had on the family’s wellbeing. The evidence at trial demonstrated, among other things, that husband had dissipated substantial marital assets in furtherance of his adulterous affair, while at the same time refusing to pay for repairs and maintenance to the marital residence and for the child’s private school tuition and extracurricular activities. The evidence also showed that husband abruptly left the marriage to pursue a relationship with his paramour, that he failed to fully exercise his visitation with the child during the separation, and that the paramour pressured husband to advance his relationship with her at the expense of husband’s relationship with the child. Under this evidence, the trial court did not punish husband for his behavior (as argued by husband), but instead properly considered husband’s behavior in light of statutory factors set forth at Code of Virginia § 20-107.3(E).

2015–Ozfidan v. Ozfidan, Va. Ct. of Appeals, Unpublished, No. 1265-14-2
The trial court properly considered Husband’s cruelty to Wife during equitable distribution of the parties’ assets and debts. The court found that Husband’s cruelty caused the dissolution of the marriage and detracted from the overall marital partnership; it was not necessary to find that Husband’s cruelty affected the identity or value of the marital property. Thus, it was a valid exercise of the court’s discretion to consider Husband’s cruelty and assign it appropriate weight among the totality of the circumstances.

2014–Plaisted v. Plaisted, Va. Ct. of Appeals, Unpublished, No. 0051-14-2
The trial court erred by ordering Husband to transfer a percentage of his interest in a business to Wife because the business interest was titled solely in Husband’s name. Code of Virginia § 20-107.3 is clear, with the exception of pensions, deferred compensation, and retirement benefits, a trial court has no authority to transfer separate or marital property, or separate or marital debt that is not jointly owned or owed.
The trial court did not err by awarding Wife 100% of a Roth IRA that Husband created and managed during the marriage and which was titled in Wife’s name. While a trial court is required to properly classify marital property as such, it is not required to award a party any part of a particular marital asset so long as the overall distribution of the marital property is equitable. It may be appropriate for the trial court to make provisions for the parties from different assets. Here, Wife demonstrated that Husband wasted significantmarital assets. And aside from the distribution of the wasted marital assets, the remaining marital property was divided 60/40 in favor of Husband.

2014–Khan v. Khan, Va. Ct. of Appeals, Unpublished, No. 1997-13-4
The trial court did not err by failing to require that Wife’s equitable distribution award be offset by the amount owed to Husband for attorney’s fees. The final decree included a specific monetary award to Wife and the trial court could not reduce her award by the amount owed to Husband for his attorney’s fees.

2014–Peck v. Peck, Va. Ct. of Appeals, Unpublished, No. 0587-13-4
The court did not err in awarding Wife 50% of Husband’s interest in a development company formed during the marriage although the investment of marital funds in the property was relatively small and Husband’s post-separation efforts greatly increased the value of the property. The law does not require that the court attribute an increase in value of a marital asset to a spouse whose efforts are responsible for that increase in value. Instead, the courts are required to consider a broad range of circumstances in equitably dividing marital property.

2014–Brake v. Brake, Va. Ct. of Appeals, Unpublished, No. 1204-13-4
Husband argued that the trial court erred in not permitting him to pay Wife her share of equitable distribution by use of a QDRO. Husband claimed that the trial court erred by failing to consider the tax implications that would result from withdrawals from his 401(k) to satisfy the monetary award. The Court found that the trial court did not abuse its discretion since the court did not require or suggest that Husband pay the monetary award from his 401(k) and Husband had access to liquid assets from a recent bonus and his interest in future distributions as a shareholder in his law firm.

2013–Mancione v. Mancione, Va. Ct. of Appeals, Unpublished, No. 2027-12-3
The trial court did not err in distributing the marital assets equally to both parties, despite Husband’s predominant financial contributions to the marriage. In its consideration of the Va. Code §20-107.2(E) factors, the trial court identified Husband’s predominant financial contributions and Husband’s fault that ended the marriage as the most significant factors. It then gave the factors equal weight in its distribution of marital property.

2013–Wiencko v. Takayama, 62 Va. App. 217
The trial court erred in considering separate property as a factor for purposes of equitable distribution. The trial court’s decision to award the Wife all of the marital retirement accounts based in part on the existence of Husband’s separate retirement accounts was a misapprehension of the equitable distribution statute. Separate property is irrelevant to the equitable distribution analysis.

2013–Crater v. Crater, Va. Ct. of Appeals, Unpublished, No. 1933-12-3
The trial court did not err in awarding forty-five percent of marital property to Husband and fifty-five percent to Wife. There is no presumption in Virginia that marital property should be divided evenly. The statutory factors, under Va. Code §20-107.3(E)(1), relevant to the determination of equitable distribution include “[t]he contributions, monetary and nonmonetary, of each party to the well-being of the family,” “[t]he circumstances and factors which contribute to the dissolution of the marriage, specifically including any ground for divorce...,” and “such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.” Pursuant to Va. Code §20-107.3(E)(1), it was proper for the trial court to consider the Husband’s strained relationships with his Wife and his Wife’s daughter. These considerations are proper for purposes of equitable distribution even if the divorce is not based on fault grounds and regardless of whether the activities result in a decrease in the value of marital property.

2013--Hamad v. Hamad, 61 Va. App 593
The trial court did not err in considering the “source of funds” in distributing marital property. Husband’s family contributed a considerable amount of property to the marital estate, but husband, inexplicably, failed to trace the property. While husband’s failure to trace barred the court from classifying the property as separate or hybrid, it did not bar the court from considering the source of funds as a factor when distributing the marital property.

2012–Fox v. Fox, 61 Va. App. 185
The trial court did not err in refusing to divide two parcels of real estate in its equitable distribution award, opting instead to have the parties retain ownership as tenants in common, subject to foreclosure or sale. Neither parcel had a positive equity value. The Court of Appeals relied on Hodges v. Hodges, 2 Va. App. 508 (1986) in holding that an asset with no value, or with negative value, was not subject to equitable distribution. Though Va. Code §20-107.3(A) mandates a determination of legal title, ownership, value, and classification of all property, as well as a determination of “the nature of all debts,” Va. Code §20-107.3(C), which deals with the division or transfer of said property, is merely permissive, and thus allows the trial court to opt not to order the division, transfer, or sale of certain property or debts. Given the inability of either party to refinance the existing debt on either of the parcels, and the fact that a forced sale of parcels, if possible due to the negative equity, would have had a negative and extreme impact on the value of the marital estate, the trial court was not obligated to divide or allocate the parcels.

2012–Taylor v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0077-12-4
The trial court did not abuse its discretion when awarding Wife the marital residence and all debt associated therewith. Although Husband had invested personal labor in improving the property through additions to the kitchen, stonework, and building a retaining wall, Wife saved the property from going into foreclosure when Husband stopped making payments on the second mortgage.

2012–Jones v. Jones, Va. Ct. of Appeals, Unpublished, No. 2086-11-3
The trial court did not err in “allocating” the rental value of a marital parcel of real estate to husband, despite the fact that no rent had actually been received. Evidence revealed that husband was allowing the current tenant to occupy the property rent-free, over wife’s objection.
The trial court did not err in imposing a constructive trust for the parties’ children in its award to wife of a large farm owned by the parties. The parties conceded that the farm was purchased using money taken from the children’s trust funds, and that the Husband told the children that the purchase was “an investment for [the children’s] futures.” The imposition of the constructive trust, rather than simply recognizing a “debt” of the parties to the children, did not affect the equitable distribution award.

2011–Prizzia v. Prizzia, 58 Va. App. 137
The trial court erred in conditioning payment of wife’s equitable distribution award upon wife’s compliance with a visitation order. Though Va. Code §20-107.3(E) permits a trial court to determine the “method of payment” of an award, it does not permit a trial court to set conditions of payment that are unrelated to the award itself.

2011–Moore v. Moore, Va. Ct. of Appeals, Unpublished, No. 0117-10-4
The trial court erred in ordering husband to maintain wife as beneficiary on a life insurance policy after the parties' divorce. The trial court found that the parties had agreed that husband would maintain wife as the beneficiary on the policy, based solely on husband's testimony that he "didn't want to remove her as a beneficiary, but had no choice after the divorce." Although Va. Code §20-109.1 allows the court to order the maintenance of a life insurance policy with one spouse as the beneficiary by incorporating a valid agreement by the parties to do so, Va. Code §§ 20-149 - 20-155 require any agreement between divorcing spouses to be in writing and signed by both parties, or alternatively, that the agreement be recorded and transcribed by a court reporter and affirmed on the record by the parties personally. No evidence of either was present here.
The trial court did not err in awarding wife one half of the $69,000 that husband withdrew from a marital account and used to purchase a house shortly after the separation, despite the fact that, at the time of trial, the $69,000 had already been spent. The fact that husband no longer had the $69,000 in his possession did not change the value of the $69,000.

2011–Whitmore v. Whitmore, Va. Ct. of Appeals, Unpublished, No. 1644-10-4
The trial court did not err in awarding wife possession of the parties’ dog and, in exchange, ordering her to pay to husband $750.00 for the initial cost of the dog. Both parties contributed to the maintenance and acquisition of the dog, and both played a significant role in the life of the dog. However, the dog had primarily resided with wife, in the marital residence where the dog had resided since purchase, for the majority of the separation. The court properly concluded that allowing visitation or shared custody of the asset was ill-advised.

2011–Pascarella v. McCoy, Va. Ct. of Appeals, Unpublished, No. 0485-10-1
While Va. Code §20-107.3 requires the court to classify and value the property of the parties prior to distributing it, the specific findings as to classification and value of each individual item of property need not be included in the court’s final written order if they are announced orally by the court.

2010–Dunfee v. Dunfee, Va. Ct. of Appeals, Unpublished, No. 0870-10-4
Trial court did not err in refusing to give wife credit for her post-separation mortgage payments on the marital residence. Wife enjoyed exclusive use and possession of the residence during the separation, had husband removed from the home and changed the locks, and provided husband no access to marital funds or credit cards, forcing him to instead rely on separate savings and family charity.
Trial court did not err in ordering each party to pay the respective credit card debts in his and her individual names, and in awarding husband an additional $2,000 to offset the amount by which the credit card debt in his name exceeded the debt in wife’s name. In refusing to give wife credit for her post- separation payments towards the credit card debt in her name, the court noted that she had refused to afford husband access to the marital residence or to marital funds during the separation, despite knowing that he had no other place to live nor significant money to rely upon, and that she made significantly greater income than husband.

2010–Andrews v. Creacey, et. al., 56 VA. App. 606
Once one party entertains an intent to separate, and the parties have lived separate and apart without any cohabitation and without interruption for one year, the grounds of divorce are complete. It is not relevant whether the party entertaining the intent to separate remained competent during the entire one-year separation period.

2010–Johnson v. Johnson, 56 Va. App. 511
Pursuant to Va. Code § 20-107.3(D), a party against whom a monetary award of marital property is made may satisfy the award in whole or in part by conveyance of property, subject to the approval of the court. The statute makes no mention of consent, approval, or acceptance by the party to whom property is to be conveyed, but does make the transfer subject to court approval. This provision serves to prevent unilateral action by the party seeking to make payment through a transfer of property. The granting or withholding of court approval of the transfer must reflect the exercise of sound judicial discretion, in light of all of the circumstances presented, to determine whether the approval of the transfer is an appropriate method of payment.
Trial court did not err in approving husband’s transfer of $120,000 of the marital share of his retirement accounts as satisfaction of an installment payment on the monetary award to wife. Although wife argued that a liquidation of those assets after the transfer would net her less than the $120,000 installment ordered by the court, the court interpreted its own equitable distribution order to mean that husband was obligated to transfer property worth $120,000, not property which, when liquidated by wife, netted $120,000. (Citing Albert v. Albert, 38 Va. App. 284 (2002) for the principle that trial courts have the authority to interpret their own orders).

2010–White v. White, 56 Va. App. 214
Trial court did not err in considering the future financial needs of husband in the context of the "age and physical and mental condition" factor of Va. Code §20-107.3(E) when making its equitable distribution award. Husband was 75-years-old, suffering from Parkinson's disease, and living alone in an assisted living facility. Although "future need" is traditionally a consideration thought to be limited to a determination of spousal support, there is no way to interpret the "age and physical and mental condition" factor of Va. Code §20-107.3(E)(4) in a way that wholly ignores future needs. Thus the trial court did not err in taking husband's future needs into account only to the extent they related to his age and health - a mandatory consideration under Va. Code §20-107.3(E)(4).

2010–Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
Although the trial court erred in classifying a business acquired during the marriage with marital funds as husband’s separate property where husband failed to rebut the marital property presumption, the court did not err in failing to account for the business in making its monetary award, as wife presented no evidence of the value of the business. The only evidence presented at trial was that the business was not actually licensed to do business, and was, in fact, operating at a loss. Effectively confronted with the value of this piece of property as zero, the trial court could not divide the asset, and therefore did not fail to consider the property when making its monetary award.
Trial court did not err in awarding 65% of the interest in the marital residence to husband and 35% to wife, where evidence showed that husband had been the sole income producer throughout the marriage and that he had made a significant and disproportionate contribution of his assets to purchase the residence. Although the court held that husband had failed to adequately trace his contribution of significant assets to separate property, thereby finding that contribution to be transmuted into marital property, the source of the funds was nonetheless a factor that the court properly considered in fashioning the award.

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