In the unpublished case of Gregory v. Gregory, Record No. 1367-14-4 (Va. Ct. Appeals 2015), the appellate court reversed a trial court decision awarding spousal support to the wife in the case because the trial ignored its copious findings that wife’s testimony was not believable. Given the lack of credible evidence, wife failed to meet her burden of proof in establishing her need for spousal support, thus she should not have been awarded any spousal support. Continue reading
Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 2)
I wrote earlier today about the rise of the tender years doctrine, which our commonwealth’s highest court originally put as follows:
“It is now generally recognized that the mother is the natural custodian of her child of tender years, and that if she is a fit and proper person, other things being equal, she should be given the custody in order that the child may receive the attention, care, supervision, and kindly advice, which arise from a mother’s love and devotion, for which no substitute has ever been found. Human experience supports the policy that young children should not be deprived of the care of their mothers and of their love and tenderness, which may be counted upon most unfailingly. Experience also teaches that children grow up more normally when reared by young people rather than older people.
Accordingly, it has been held that children of tender age, especially girls, will be awarded to their mothers, if fit and suitable; and that where no injury or disadvantage will result to the child, the feelings of the maternal parent must be given consideration.” Mullen v. Mullen, 188 Va. 529 (Va. 1948)
Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 1)
It’s always fun to read old appellate court decisions. These decisions often act as if their legal conclusions were obvious, and thus they often contain bold proclamations addressing a world that no longer exists (if it ever really existed in the first place). These conclusions then get used as the basis of our law for years until someone realizes that the world has changed and therefore the law must change as well. Mullen v. Mullen, 188 Va. 529 (Va. 1948), might be our court’s best example of this phenomena. Continue reading
Virginia Support: Imputed Income Primer
Wow! The Virginia Court of Appeals recently handed down two published decisions discussing at exhaustive length how imputed income is supposed to work in child support cases.[1] So let’s look at how this all works with a nice Q & A. Continue reading
Virginia Spousal Support: Remarriage vs. De Facto Remarriage
The recent unpublished opinion of Miller v. Green, Record No. 1993-14-3 (Virginia Ct. App. 2015), highlights the perhaps unexpected differences between spousal support that terminates on the recipient’s remarriage and spousal support that terminates because the recipient has been in a relationship analogous to a marriage for over one year. Continue reading
Virginia Support Modification: Sometimes It’s the Little Things
In LaBrie v. LaBrie, Record No. 1894-14-2 (Va. Ct. Appeals 2015), a former husband sought to reduce or terminate his spousal support obligation of $4,350 per month. It’s a funny case because on first blush it appears that he has decent facts in support of his petition. Nevertheless, the court methodically calls him out on every flaw in his case, buttressed by the former wife’s savvy introduction of videotape evidence showing the former husband looking relatively fit. His petition was denied, and he ultimately lost on appeal. Here’s the blow by blow: Continue reading
Virginia Spousal Support: The Odd Case of Alternative Spousal Support
If you agree to make certain payments for the benefit of your former wife “in lieu of spousal support,” can you automatically stop making those payments if your former wife remarries? Continue reading
Virginia Spousal Support: OMG Spousal Support
Spousal support really is an odd duck here in Virginia.
The basic consideration when determining spousal support is one party’s need versus the other party’s ability to pay. However, the court must also consider all of the factors under Va. Code § 20-107.1, which include the duration of the marriage; the decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage; and the obligations, needs and financial resources of the parties. In addition, the court must contend with stray caselaw that may include language favoring one factor over another (e.g., the standard of living established during the marriage). The court might also have to wrestle with the fact that the legislature came up with a formula for temporary spousal support awards in our juvenile and domestic relations district courts under Va. Code § 16.1-278.17:1, not to mention the fact that such formula is not supposed to apply when the combined gross incomes of the parties exceed $10,000 per month. Confusing, huh? Continue reading
Virginia Military Pensions: Be Sure to Ask Questions
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).”
Virginia Equitable Distribution: The Strange Burden of Giving
John Smith buys a house before he gets married to Jane Doe. John then gets married to Jane. He wants his to become theirs. She wants hers to become theirs. So they open joint bank accounts. They consolidate their finances. And he deeds the house into their joint names. But their love dwindles. They separate. And they file for divorce. So what happens to the house? Does John get to keep all of the equity in in the property because he owned it before the marriage? Or does Jane get an equitable share in the equity because she clearly owns the property, too? Continue reading