Virginia Family Law Appeals

Proving that efforts didn't increase value of property is up to non-owning spouse: Va. S. Ct.

In David v. David, released today, the Virginia Supreme Court addresses the question of the burden of proof in cases where a divorcing spouse owned separate property, but either that spouse or the other spouse contributed work to it during the marriage, and the other spouse claims that the work made it increase in value. The non-owner spouse has the burden of proving that the work was done and that there was an increase in value, but then, once that is proven, the owner spouse has the burden of DISproving that the work CAUSED the increase. 

This decision exactly relfects a statute which already addressed this exact issue, Virginia Code Sec. 20-107.3 A 3 a, which says in part:

For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

 

 

http://www.courts.state.va.us/opinions/opnscvwp/1122145.pdf

Receivable owned by business not a divisible marital asset - Va. Ct. App.

A $1,850,000 "account receivable," owned by a business which a husband owned half of, was not an asset of the parties to a divorce and thus not an "undisclosed asset" which a court could distribute post-divorce under their Property Settlement Agreement, the Virginia Court of Appeals says in Cabral v. Cabral, (12/10/13).

Senior-year expenses justify extra child support, but only when ...

. . .  child support starts when a child is close to graduation, the Virginia Court of Appeals says in Saxon v.  LeSueur (Va. Ct. App. unpublished 12/17/2013). It recognized "unique expenses associated with their son’s activities during his last year of high school" averaging about $500 per month. It explains that the statutory child support guidelines formula: 

addresses “the obvious fact that child raising expenses increase as the child grows older.” It may seem odd to presuppose the cost of rearing an infant to be about the same as a high-school senior. But it makes sense if one assumes, as we do, that “parents’ incomes generally rise as children age,” and thus “the increased cost of rearing older children will be accounted for in the income shares formula” adopted by the statute. ... In cases in which the child-support award begins when the child is quite young and continues to the age of majority, the cost disparities balance out over the years of the award. The overestimate in the early years roughly cancels out the underestimate in the latter years.

But in cases in which the child-support award begins and ends during the year or two before the child turns eighteen, as is the case here, the cost-averaging assumption may be inequitable. 

 

 

Pension-beneficiary order can be made after divorcee dies - Va. Ct. App. in Griffin case

In Griffin v. Griffin c/o Cowser-Griffin, 62 Va. App. 736, 753 S.E.2d 574 (Va. App. 2014), upheld without comment by the Virginia Supreme Court in Cowser-Griffin v. Griffin, 2015 WL 798707  (Va. S. Ct. unpublished 2015),

the parties' separation agreement said that the children would be named beneficiaries of the husband's defined-contribution retirement plans. Not what we usually think of as requiring a QDRO. The couple was divorced and the husband remarried. The plan’s policy, stated in the plan documents provided to the husband, was to pay the plan out to the widow unless (1) she consented to another beneficiary or (2) there was a QDRO directing otherwise. The trial court said that the divorce decree which incorporated the agreement was not a QDRO, and the retirement plan had no notice of its provisions and no duties to the intended beneficiaries.

But the Virginia Court of Appeals and the Virginia Supreme Court ruled that a Qualified Domestic Relations Order may be made, even though the husband is dead. Virginia law lets Qualified Domestic Relations Orders be made, or amended, long after a divorce is final, for the limited purpose of effectually carrying out what was decided in a separation agreement or divorce decree. This is "merely an administrative mechanism" to enforce rights that have already vested under state law pursuant to, and at the time of, the agreement and divorce decree. Likewise, federal regulations under ERISA, at 29 C.F.R. § 2530.206, expressly allow posthumous QDROs.

However, if the benefits had been considered a survivor benefit and had been from a defined-benefit plan, the result would have been otherwise, under Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997), which held that a survivor benefit vests in the current spouse at the time of retirement. Hopkins was based on regulations that apply to defined-benefit plans, specifically joint-and-survivor annuities, which base the amount of the monthly benefits on both spouses’ life expectancies at the time of retirement.

Until this case, the only remedy in such cases was against the second wife, not the retirement plan. The intended beneficiaries would have to sue her and ask a court to impose a "constructive trust" on the benefits she received from the plan.

The Virginia Supreme Court merely adopted the reasoning of the Court of Appeals without repeating or improving upon it, so to see the reasoning you have to look at the Court of Appeals opinion,Griffin v. Griffin c/o Cowser-Griffin, 62 Va. App. 736, 753 S.E.2d 574 (Va. App. 2014).