Property Distribution - § 5-7 (C) - § 5-9

(C) Criteria/Award

2010 --- Johnson v. Johnson, 56 Va. App. 511
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).

2009 --- Cusack v. Cusack, 53 Va. App. 315
Trial court did not err in providing in the Qualified Domestic Relations Order that “to the extent the Designated Agent is prohibited by law or regulation from paying the entire amount required by this [Qualified Domestic Relations Order], Husband shall personally pay any short fall to Wife.” Although the Qualified Domestic Relations Order was not entered until May 5, 2008, and not provided to the designated agent until sometime thereafter, Wife was entitled to payments as of the date of the final decree. To hold otherwise would deprive Wife of payments to which she was entitled and would encourage Husband, as the owning spouse, to delay voluntary execution of the documents related to the Qualified Domestic Relations Order.

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 of Appeals, Unpublished, No. 1008-06-4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.

2006 --- Kennedy v. Kennedy, Va. Ct. of Appeals, Unpublished, No. 0218-06-2
Trial court erred in awarding Wife 55% of the value of Husband’s Individual Retirement Account by considering the parties’ future earning capacity.

2006 --- Recker v. Recker, 48 Va. App. 188
Trial court did not err by not reducing the value of former Wife’s share of civil service pension benefits by the cost of providing survivor benefits to second Wife. The final decree expressed the intention that Wife receive 50% of Husband’s accrued pension benefits before any deduction or reduction.

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 --- Turner v. Turner, 47 Va. App. 76
Trial court did not err in entering a Qualified Domestic Relations Order without any prior order granting Wife an actual defined portion of Husband’s pension. In entering the Qualified Domestic Relations Order the court did not create any substantive rights but only effectuated the intent of the final decree, which awarded Wife a share of Husband’s pension based on 15 years of marriage contemporaneous with the Husband’s employment.

2003 --- Buchanan v. Buchanan, Va. Ct. of Appeals, Unpublished, No. 2244-02-2
The trial court did not err in conditioning entry of a QDRO to divide Wife’s pension on Husband paying his portion of the monetary award to Wife. Code of Virginia §20-107.3(G) authorizes a trial court to divide and distribute a pension after consideration of the factors in Code of Virginia §20-107.3(E). Given the facts of the case, including Husband’s prior attempts to prevent Wife from receiving her share of the marital assets, the trial court did not abuse its discretion in conditioning entry of the QDRO on Husband’s payment of a monetary award to Wife.

2002 --- Baker v. Baker, 38 Va. App. 384
Where final decree provided for Wife to receive one half of retirement account as of a fixed date, court cannot later award her gains and losses on account.

2002 --- Bradley v. Bradley, 39 Va. App. 108
Trial court did not err by refusing to include pre-retirement survivor benefits in a Qualified Domestic Relations Order because they were not addressed at trial.

2002 --- Hubble v. Hubble, 2002 Va. App. Unpublished, 459
Former serviceman Husband obtained a disability rating which reduced his monthly retirement benefit. Trial court modified final decree ordering Husband to continue to pay Wife the same monthly amount without reduction. Affirmed.

2002 --- Torian v. Torian, 38 Va. App. 167
It is not error to award Husband 100% of his retirement account. A retirement account may be divided by the immediate offset approach or by the deferred distribution approach.

2000 --- McLellan v. McLellan, 33 Va. App. 376
Federal law does not prevent former Wife from receiving a portion of former Husband’s disability retirement pay pursuant to their separation agreement.

2000 --- Williams v. Williams, 32 Va. App. 72
Trial court was authorized to enter new order regarding payment of pension benefits in order to effectuate its final decree.

1999 --- Hastie v. Hastie, 29 Va. App. 776
Va. Code §20-107.3(k)(4) may not be used to alter the substance of a prior division of a retirement benefit.

1997 --- Johnson v. Johnson, 25 Va. App. 368
It is error to allocate retirement benefits as of date of hearing without present value of benefits.

1997 --- Wilson v. Wilson, 25 Va. App. 752 (1997)
After twenty-one days, when no appeal is taken, a trial court lacks the authority to substantively modify an order equitably distributing pension benefits, irrespective of any subsequent agreement by the parties to the contrary. The jurisdiction of the court cannot be established by consent.

1996 --- Brugger v. Brugger, Va. Ct. of Appeals, Unpublished, No. 2446-95-4
Trial court abused discretion in awarding wife only 15% of the marital share of husband’s retirement account where husband testified at trial that 25% of the marital share was a fair award, based on wife’s contributions to the marriage.
Trial court erred in failing to determine the marital share of husband’s pension prior to awarding wife a portion of the pension.

1996 --- Gerwe v. Gerwe, Va. Ct. of Appeals, Unpublished, No. 0860-95-4
Trial court erred in requiring husband to pay the cost of converting the share of his pension that was awarded to wife to a benefit that would survive for her lifetime, where the requirement would cause husband to incur costs significant enough to reduce his share of the marital portion of the pension to below 50% and increase wife’s share to above 50%, in conflict with Va. Code §20-107.3(G).

(D) Orders Dividing

2018 --- Garza v. Garza, Va. Ct. of Appeals, Unpublished, No. 1286-18-4
The trial court did not err in holding that Wife was entitled to fifty percent of Husband’s retirement benefits immediately without taking into consideration the fact that Wife would likely not retire for several more years. Code § 20-107.3(G)(1) does not allow for such deferral of retirement benefits until both parties retire. Rather, the statute provides that retirement benefit “payment[s] be made as such benefits are payable.” Here, Husband was retired and receiving his retirement benefits. Accordingly, Wife was entitled to her share of Husband’s retirement benefits as of the date of his retirement.

2018 --- McGarrity v. McGarrity, Va. Ct. of Appeals, Unpublished, No. 1492-17-2
The trial court did not err in ordering Husband to pay Wife in monthly installments for her interest in Husband’s retirement account even though Husband had dissipated all of the funds held in the account during the parties’ separation. Code of Virginia § 20-107.3(G)(1) provides that a trial court “may direct payment of a percentage of the marital share of any [retirement account], which constitutes marital property and whether payable in a lump sum or over a period of time.” In accordance with Code § 20-107.3(G)(1), the trial court was authorized to order Husband to pay Wife over a period of time for her share of the retirement asset.

2017 --- Howell v. Howell, R-33, docket 15-1031
The Uniformed Former Spouses' Protection Act ("Act") provides that a state may treat as community property, and divide at divorce, a military veteran's retirement pay. The Act, however, exempts from this grant of permission any amount that the Government deducts "as a result of a waiver" that the veteran must make "in order to receive" disability benefits. In Mansell v. Mansell, the U.S. Supreme Court held that the Act preempts the States from treating the waived portion of military retirement pay as community property to be divided upon divorce.

In this case, Husband and Wife divorced in 1991. In the final order of divorce, the Arizona trial court awarded Wife 50% of Husband's military retirement pay, which would begin upon Husband's retirement. Shortly thereafter, Husband retired from the military and Wife began receiving her share of Husband's retirement pay. Approximately 13 years later, Husband elected to receive disability benefits, and in so doing, reduced the amount of military retirement pay that Wife was receiving. The Arizona trial court held that the original divorce decree had given Wife a vested interest in the pre-waiver amount of Husband's retirement pay and ordered Husband to reimburse Wife for the reduction in her share of Husband's military retirement pay. The Arizona Supreme Court affirmed, and distinguished the facts of the case from Mansell by noting that Husband had made his waiver after the trial court divided his military retirement pay, and thus federal law did not preempt the trial court's reimbursement order.

The U.S. Supreme Court reversed and remanded the case, noting that Mansell controlled. That Husband elected to waive his military retirement pay long after the divorce highlights only that Husband's military pay at the time it came to Wife was subject to a later reduction. Further, the Arizona courts reference to Wife's interest in the waivable portion of Husband's military retirement as having "vested" does not help. State courts cannot "vest" that which under governing federal law they lack the authority to give. Accordingly, while the divorce decree might be said to "vest" Wife with an immediate right to half of Husband's military retirement pay, that interest is, at most, contingent.

2016 --- Dominion Resources Inc., et al. v. Estate of David Griffin, et. al., Case No. 3:15-cv-407, U.S. District Court for the Eastern District of Virginia
The Plan Administrator of deceased Husband’s retirement plan was not bound by Virginia state court litigation between Husband’s ex-wife and Husband’s surviving wife regarding who the beneficiary of the plan was upon Husband’s death. Because the Plan Administrator was not party to that suit, and because the Plan Administrator had authority to make the final decision regarding the rightful beneficiary of the Plan, the Virginia state court’s entry of a QDRO designating Husband’s children as the sole beneficiaries of the Plan, rather than Husband’s surviving wife, did not extinguish the surviving wife’s claim in the federal court. Accordingly, the Plan’s interpleader action was an appropriate proceeding to resolve the competing claims to the retirement plan funds.

2016 --- Jones v. Jones, Va. Ct. of Appeals, Unpublished, No. 0062-15-2
The trial court erred in entering an order dividing Husband’s military retirement plan that went beyond the provisions contained in the parties’ settlement agreement. Although the parties’ agreement provided that Wife would receive one half of the marital share of Husband’s retirement plan, the agreement contained no express term enjoining Husband from making elections that would reduce the ultimate value of Wife’s interest (such as waiving or merging certain benefits). Accordingly, the trial court was without authority to enter a division order that effectively enjoined such elections by Husband.

2014 --- Sylvester v. Sylvester, Va. Ct. of Appeals, Unpublished, No. 0882-13-4
Trial court did not err in entering a QDRO which altered the formula used to calculate Wife’s portion of Husband’s pension from that originally set forth in the final decree. The modified formula was a procedural change necessary to conform the order to plan administrator requirements and had no substantive effect on the award originally set out in the final decree.

2004 --- Navas v. Navas, 43 Va. App. 484
Trial court erred in refusing to enter QDRO submitted by wife based on court’s conclusion that disability benefits husband received from his employer were not part of husband’s “pension,” half of which the court awarded to wife in the final order of divorce. A pension, by definition, is a retirement benefit paid regularly, with the amount of such based generally on the length of employment and amount of wages or salary of pensioner. It is deferred compensation for services rendered. Clearly, the all inclusive language of Va. Code §20-107.3(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, (citing Asgari v. Asgari, 33 Va. Pp. 393 (2000)). Here, husband was entitled to receive only one of three types of allowances from his pension plan: a “normal retirement allowance,” an “early retirement allowance,” or a “total and permanent disability allowance.” The disability allowance was computed in the same fashion as the other “retirement” allowances, and was thus encompassed by the term “husband’s pension,” as used in the final order of divorce.

§5-7(E) - Military

2019 --- Starr v. Starr, Va. Ct. of Appeals, No. 1824-18-1
The trial court did not err in its determination of the marital share of Husband’s military retirement. The total interest in a military retirement is defined by federal law for purposes of distribution in a divorce proceeding. Under the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408 et. seq., hereinafter “USFSPA”), state courts have the power to treat disposable retired or retainer pay as community property in accordance with state law. In Virginia, the marital portion of a defined benefit plan (including military retirement) has been distinguished from the separate portion by the application of a fraction (the “coverture fraction”), the numerator of which represents the total time the pensioner is employed during the parties’ marriage, and the denominator of which represents the total time the pensioner is employed through the date of retirement. For divorce decrees entered prior to December 23, 2016, the coverture fraction as defined above still applies.

A December 23, 2016 amendment to USFSPA (“Amendment”), however, changed the definition of disposable retired pay in the context of divorce and thereby changed the total interest that is available for equitable distribution by state courts. The Amendment freezes a spouse’s interest in the service member’s military retirement as of the date of divorce, rather than as of the date of retirement, and therefore preempts state courts from considering a service member’s military service or pay increases after the date of divorce. Thus, in determining the total interest of a service member’s military retirement for purposes of equitable distribution pursuant to Code § 20-107.3, the Amendment simply requires that the trial court use the date of divorce as the hypothetical date of retirement. Here, the divorce decree was entered on October 23, 2018. Accordingly, the circuit court correctly applied USFSPA, as amended, to determine the marital portion of husband’s military retirement by using the length of Husband’s service as of the date of divorce as the coverture fraction denominator, representing the hypothetical date of Husband’s retirement.

Savedge v. Barbour, Va. Ct. of Appeals, Unpublished, No. 2713-09-1
Wife waived her rights to any interest in husband’s military retirement accounts when entering into a settlement agreement that did not mention the accounts, but which purported to be a “full settlement, release and discharge of all interest by dower and any and all other claims which wife has or might have for alimony and for support and maintenance or otherwise,” and which stated that the parties agreed to a mutual release of any and all rights in the property then owned or thereafter acquired by either party. That husband’s accounts were not made subject to equitable distribution under Virginia law until after the parties signed their agreement was not sufficient to overcome wife’s waiver. 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. (Citing Himes v. Himes, 12 Va. App. 966 (1991)).

2004 --- Boedeker v. Larson, 44 Va. App. 508
Trial court did not err in classifying a defined, lump-sum payment that Husband could opt to receive up front if he committed to remain on active duty in the military for a total of twenty years as a retirement benefit, based on Husband’s admission to the trial court that his electing to receive that payment would reduce his normal retirement benefit, and thus, wife’s share of that benefit. The parties’ settlement agreement specifically indicated that “all retirement and pension types of accounts have been disclosed,” and specifically provided that wife was entitled to share equally in the marital portion of husband’s military retirement. It made no mention of husband’s entitlement to any other sort of military benefit or bonus, and gave no indication that husband would be permitted under the terms of the agreement to reduce the amount of retirement benefit to which wife would be entitled by relinquishing a portion of his military retirement in exchange for some other benefit to which he alone would be entitled.

§ 5-8 - Stock Options

2005 --- Ranney v. Ranney, 45 Va. App. 17
The lower court erred in classifying husband’s stock options as his separate property. Although Husband was awarded stock options prior to the marriage, his ability to exercise the stock options was contingent upon his continued employment, almost all of which occurred during the marriage.

1993 --- Dietz v. Dietz, 17 Va. App. 203
Stock options earned during the marriage, whether vested or non-vested at the time of the separation of the parties, are “deferred compensation” subject to division under Va. Code §20-107.3(G). A trial court has the authority to award up to fifty percent of the marital share of cash benefits actually received by the party against whom the award is made. The trial court defined the marital portion of the stock options, similar to a pension, as a fraction, the numerator of which was the number of months husband was covered by the stock option plan prior to the date of separation, and the denominator of which was the total number of months the husband was covered by the plan.

§ 5-9. Enforcement / Satisfaction of Award

2014 --- Linton v. Linton, 63 Va. App. 495
The parties agreed by settlement agreement that Wife’s separately titled limited partnership interest was marital property, and that Husband was entitled to one half of the value. The trial court did not err in allowing Wife to transfer a portion of her separately titled partnership interest to satisfy the monetary award. While Code of Virginia §20-107.3(C) prohibits a court from dividing and transferring property which is not jointly owned, Code of Virginia §20-107.3(D) gives courts the authority to grant a monetary award and allows the party against whom the monetary award is made to satisfy the award, in whole or in party, by conveying separately titled property.

2005 --- Robinson v. Robinson, Va. Ct. of Appeals, Unpublished, No. 1837-05-4
The trial court did not err in appointing wife’s counsel as special commissioner and authorizing him to provide the signature of the husband “wherever required” for purposes of carrying out the court’s order that the marital residence be sold. The record supported the finding that husband had unreasonably refused to cooperate with the court’s order requiring the sale. Contrary to husband’s contention that the order appointing wife’s counsel as commissioner was an order authorizing counsel to act in a “judicial capacity,” the execution of documents necessary to complete the sale pursuant to the court’s orders was purely ministerial in nature and did not alter the substantive terms of the court’s orders.

2003 --- Hart v. Hart, Va. Ct. of Appeals, Unpublished, No. 0952-02-3
The trial court did not exceed its authority in appointing wife's counsel as special commissioner and authorizing him to convey husband's share of a parcel of real estate to wife, pursuant to wife's proper exercise of a provision in the final decree allowing her to purchase husband's interest. A year after the Court of Appeals ruled that wife had properly asserted her buy-out right, husband had still failed to convey the property to wife. Va. Code §20-107.3(K) grants to courts the continuing authority to make additional orders necessary to effectuate and enforce equitable distribution orders, and that authority includes the power to appoint a special commissioner to transfer any property when a party refuses to comply with a prior order to transfer such property·

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