What can a court consider when dividing up marital property upon divorce in Virginia?  Sometimes it feels like anything . . .

In the case of McDonough v. McDonough (CL-11-229), the Fauquier County Circuit Court divorced a husband and wife.  The husband was awarded primary physical custody of six children, four of whom had special needs.  The parties were also awarded half of the equity in the marital property/debt except for the marital residence.  The court chose instead to award the husband more of the equity in the marital residence using the following analysis:

            “Several of those children are still young and will require hands-on care for a number of years.  The Husband will have this responsibility, plus the necessity of earning a living and keeping his job.  He needs to have assets to do this, even if it means downsizing the residence.

             Therefore, the Court will award the Husband 60 % of the marital equity of the home and 40 % of the same to the Wife.”

The court’s decision appears altogether equitable given the facts of the case.  The court’s stated rationale is nevertheless interesting given its limited statutory authority.

Va. Code § 20-108.1(B) outlines factors that the court must take into consideration in deviating from the presumptive amount of child support.  Those factors include “arrangements regarding custody of the children . . . ,” “debts of either party arising during the marriage for the benefit of the child,” and “any special needs of a child resulting from any physical, emotional, or medical condition.”  In other words, this court had available to it factors tailor made to meet the future needs of the children and to provide the children’s primary physical custodian with the resources needed to meet them.  Nevertheless, the court chose to use property distribution as the means to achieve this end probably because it realized that the wife could not afford to pay any additional support each month moving forward.

Va. Code § 20-107.3(E), on the other hand, outlines the factors that the court must take into consideration in dividing up the marital property and debt.  That section states:

“E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

None of these factors mention children.  None of these factors mention anything having to do with their needs.  None of these factors mention anything about providing resources for their care moving forward.  Instead, these factors are almost solely focused on the past or present.  Their lone future concern is the age, physical or mental conditions of the parties.  Moreover, the court in this case did not explicitly enter any monetary award which would otherwise have allowed for application of the last catch-all factor.  Nevertheless, the court in this case awarded more of the equity in the marital residence to the husband specifically because of his responsibility to care for his children.

In conclusion, fair result?  Sure.  Questionable justification?  Absolutely.  Moral?  The catch-all is often the court’s be-all end-all.