In Epps v. Epps, Record No. 1077-14-1 (Va. Ct. Appeals 2015), the appellate court described how our circuit courts go about dividing up marital property:

“First, upon a request of either of the parties, the circuit court “must classify the property as either separate or marital. The court must then assign a value to the property based upon evidence presented by both parties. Finally, the court distributes the property to the parties, taking into consideration the factors presented in Code § 20-107.3(E).”

It further described how to divide up pensions:

“The court may direct payment of a percentage of the marital share of any pension . . . or retirement benefits . . . which constitutes marital property and whether payable in a lump sum or over a period of time. . . . No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. “Marital share” means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent. Code § 20-107.3(G) (emphasis added).”

So to determine the marital share you need to know the number of months of creditable service during the marriage versus the months of creditable service in total.  Thus, you need to know the date of the marriage, the date of the last separation of the parties, the date that that the person began creditable service, the date that the person ended their creditable service if they’ve retired, and whether there were any suspensions of creditable service during the marriage.

In Epps v. Epps, the husband sought a share of his wife’s military pension that she earned through her service with the U.S. Coast Guard.  Unfortunately for him, the only testimony on the subject was his testimony that he thought that she served 23 years.  Apparently, he didn’t know when she started and when she retired.  And, shockingly, his counsel apparently didn’t bother to even ask the wife when she started and when she retired.  As such, the trial court couldn’t classify the pension as separate or marital or determine the marital share of the same.  As the burden was on the husband to provide sufficient evidence to enable the court to classify the property, the trial court declined to do anything about the pension, thus meaning that the wife walked away with all of it.  On appeal, the Virginia Court of Appeals upheld the trial court’s decision.

So what is the take away from this case?  Ask the questions that you need to ask, both in the discovery process before trial and at trial itself.  Otherwise, you could be missing out your share of a large marital asset.