Am I still entitled to anything in the divorce if I had an affair?
Full Question:
Answer:
In any proceeding on the issue of determining spousal support in Virginia, the court will consider all evidence presented relevant to any issues joined in the proceeding.
The applicable Virginia statutes are as follows:
§ 20-91. Grounds for divorce from bond of matrimony; contents of
decree. —
A. A divorce from the bond of matrimony may be decreed:
(1) For adultery; or for sodomy or buggery committed outside the
marriage;
(2) [Repealed.]
(3) Where either of the parties subsequent to the marriage has been
convicted of a felony, sentenced to confinement for more than one year
and confined for such felony subsequent to such conviction, and
cohabitation has not been resumed after knowledge of such confinement (in
which case no pardon granted to the party so sentenced shall restore such
party to his or her conjugal rights);
(4), (5) [Repealed.]
(6) Where either party has been guilty of cruelty, caused reasonable
apprehension of bodily hurt, or willfully deserted or abandoned the
other, such divorce may be decreed to the innocent party after a period
of one year from the date of such act; or
(7), (8) [Repealed.]
(9) (a) On the application of either party if and when the husband and
wife have lived separate and apart without any cohabitation and without
interruption for one year. In any case where the parties have entered
into a separation agreement and there are no minor children either born
of the parties, born of either party and adopted by the other or adopted
by both parties, a divorce may be decreed on application if and when the
husband and wife have lived separately and apart without cohabitation and
without interruption for six months. A plea of res adjudicata or of
recrimination with respect to any other provision of this section shall
not be a bar to either party obtaining a divorce on this ground, nor
shall it be a bar that either party has been adjudged insane, either
before or after such separation has commenced, but at the expiration of
one year or six months, whichever is applicable, from the commencement of
such separation, the grounds for divorce shall be deemed to be complete,
and the committee of the insane defendant, if there be one, shall be made
a party to the cause, or if there be no committee, then the court shall
appoint a guardian ad litem to represent the insane defendant.
(b) This subdivision (9) shall apply whether the separation commenced
prior to its enactment or shall commence thereafter. Where otherwise
valid, any decree of divorce hereinbefore entered by any court having
equity jurisdiction pursuant to this subdivision (9), not appealed to the
Supreme Court of Virginia, is hereby declared valid according to the
terms of said decree notwithstanding the insanity of a party thereto.
(c) A decree of divorce granted pursuant to this subdivision (9) shall
in no way lessen any obligation any party may otherwise have to support
the spouse unless such party shall prove that there exists in the favor
of such party some other ground of divorce under this section or §
20-95.
B. A decree of divorce shall include each party's social security
number, or other control number issued by the Department of Motor
Vehicles pursuant to § 46.2-342.
§ 20-94. Effect of cohabitation after knowledge of adultery, sodomy or
buggery; lapse of five years. —
When the suit is for divorce for adultery, sodomy, or buggery, the
divorce shall not be granted, if it appear that the parties voluntarily
cohabited after the knowledge of the fact of adultery, sodomy or
buggery, or that it occurred more than five years before the institution
of the suit, or that it was committed by the procurement or connivance of
the party alleging such act.
Section 20-103. Court may make orders pending suit for divorce,
custody or visitation, etc.
A. In suits for divorce, annulment and separate maintenance, and in
proceedings arising under subdivision A 3 or subsection L of Section
16.1-241, the court having jurisdiction of the matter may, at any time
pending a suit pursuant to this chapter, in the discretion of such court,
make any order that may be proper (i) to compel a spouse to pay any sums
necessary for the maintenance and support of the petitioning spouse,
including an order that the other spouse provide health care coverage for
the petitioning spouse, unless it is shown that such coverage cannot be
obtained, (ii) to enable such spouse to carry on the suit, (iii) to
prevent either spouse from imposing any restraint on the personal liberty
of the other spouse, (iv) to provide for the custody and maintenance of
the minor children of the parties, including an order that either party
provide health care coverage for the children, (v) to provide support,
calculated in accordance with Section 20-108.2, for any child of the
parties to whom a duty of support is owed and to continue to support any
child over the age of 18 who meets the requirements set forth in
subsection C of Section 20-124.2, (vi) for the exclusive use and
possession of the family residence during the pendency of the suit, (vii)
to preserve the estate of either spouse, so that it be forthcoming to
meet any decree which may be made in the suit, or (viii) to compel either
spouse to give security to abide such decree. The parties to any petition
where a child whose custody, visitation, or support is contested shall
show proof that they have attended within the 12 months prior to their
court appearance or that they shall attend within 45 days thereafter an
educational seminar or other like program conducted by a qualified person
or organization approved by the court except that the court may require
the parties to attend such seminar or program in uncontested cases only
if the court finds good cause. The seminar or other program shall be a
minimum of four hours in length and shall address the effects of
separation or divorce on children, parenting responsibilities, options
for conflict resolution and financial responsibilities. Once a party has
completed one educational seminar or other like program, the required
completion of additional programs shall be at the court's discretion.
Parties under this section shall include natural or adoptive parents of
the child, or any person with a legitimate interest as defined in Section
20-124.1. The fee charged a party for participation in such program shall
be based on the party's ability to pay; however, no fee in excess of $50
may be charged. Whenever possible, before participating in mediation or
alternative dispute resolution to address custody, visitation or
support, each party shall have attended the educational seminar or other
like program. The court may grant an exemption from attendance of such
program for good cause shown or if there is no program reasonably
available. Other than statements or admissions by a party admitting
criminal activity or child abuse, no statement or admission by a party in
such seminar or program shall be admissible into evidence in any
subsequent proceeding.
B. In addition to the terms provided in subsection A, upon a showing
by a party of reasonable apprehension of physical harm to that party by
such party's family or household member as that term is defined in
Section 16.1-228, and consistent with rules of the Supreme Court of
Virginia, the court may enter an order excluding that party's family or
household member from the jointly owned or jointly rented family
dwelling. In any case where an order is entered under this paragraph,
pursuant to an ex parte hearing, the order shall not exclude a family or
household member from the family dwelling for a period in excess of 15
days from the date the order is served, in person, upon the person so
excluded. The order may provide for an extension of time beyond the 15
days, to become effective automatically. The person served may at any
time file a written motion in the clerk's office requesting a hearing to
dissolve or modify the order. Nothing in this section shall be construed
to prohibit the court from extending an order entered under this
subsection for such longer period of time as is deemed appropriate, after
a hearing on notice to the parties. If the party subject to the order
fails to appear at this hearing, the court may extend the order for a
period not to exceed six months.
C. In cases other than those for divorce in which a custody or
visitation arrangement for a minor child is sought, the court may enter
an order providing for custody, visitation or maintenance pending the
suit as provided in subsection A. The order shall be directed to either
parent or any person with a legitimate interest who is a party to the
suit.
D. Orders entered pursuant to this section which provide for custody
or visitation arrangements pending the suit shall be made in accordance
with the standards set out in Chapter 6.1 (Section 20-124.1 et seq.) of
this title. Orders entered pursuant to subsection B shall be certified by
the clerk and forwarded as soon as possible to the local police
department or sheriff's office which shall, on the date of receipt, enter
the name of the person subject to the order and other appropriate
information required by the Department of State Police into the Virginia
crime information network system established and maintained by the
Department of State Police pursuant to Chapter 2 (Section 52-12 et seq.)
of Title 52. If the order is later dissolved or modified, a copy of the
dissolution or modification shall also be certified, forwarded and
entered in the system as described above.
E. An order entered pursuant to this section shall have no
presumptive effect and shall not be determinative when adjudicating the
underlying cause.
§ 20-107.1. Court may decree as to maintenance and support of
spouses.
A. Pursuant to any proceeding arising under subsection L of §
16.1-241 or upon the entry of a decree providing (i) for the dissolution
of a marriage, (ii) for a divorce, whether from the bond of matrimony or
from bed and board, (iii) that neither party is entitled to a divorce, or
(iv) for separate maintenance, the court may make such further decree as
it shall deem expedient concerning the maintenance and support of the
spouses. However, the court shall have no authority to decree maintenance
and support payable by the estate of a deceased spouse.
B. Any maintenance and support shall be subject to the provisions of
§ 20-109, and no permanent maintenance and support shall be awarded
from a spouse if there exists in such spouse's favor a ground of divorce
under the provisions of subdivision (1) of § 20-91. However, the
court may make such an award notwithstanding the existence of such ground
if the court determines from clear and convincing evidence, that a denial
of support and maintenance would constitute a manifest injustice, based
upon the respective degrees of fault during the marriage and the relative
economic circumstances of the parties.
C. The court, in its discretion, may decree that maintenance and
support of a spouse be made in periodic payments for a defined duration,
or in periodic payments for an undefined duration, or in a lump sum
award, or in any combination thereof.
D. In addition to or in lieu of an award pursuant to subsection C, the
court may reserve the right of a party to receive support in the future.
In any case in which the right to support is so reserved, there shall be
a rebuttable presumption that the reservation will continue for a period
equal to 50 percent of the length of time between the date of the
marriage and the date of separation. Once granted, the duration of such a
reservation shall not be subject to modification.
E. The court, in determining whether to award support and maintenance
for a spouse, shall consider the circumstances and factors which
contributed to the dissolution of the marriage, specifically including
adultery and any other ground for divorce under the provisions of
subdivision (3) or (6) of § 20-91 or § 20-95. In determining the
nature, amount and duration of an award pursuant to this section, the
court shall consider the following:
1. The obligations, needs and financial resources of the parties,
including but not limited to income from all pension, profit sharing or
retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and
any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special
circumstances of any child of the parties would make it appropriate that
a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to
the well-being of the family;
7. The property interests of the parties, both real and personal,
tangible and intangible;
8. The provisions made with regard to the marital property under §
20-107.3;
9. The earning capacity, including the skills, education and training
of the parties and the present employment opportunities for persons
possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved
for a party to acquire the appropriate education, training and employment
to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education
and parenting arrangements made by the parties during the marriage and
their effect on present and future earning potential, including the
length of time one or both of the parties have been absent from the job
market;
12. The extent to which either party has contributed to the attainment
of education, training, career position or profession of the other
party; and
13. Such other factors, including the tax consequences to each party,
as are necessary to consider the equities between the parties.
F. In contested cases in the circuit courts, any order granting,
reserving or denying a request for spousal support shall be accompanied
by written findings and conclusions of the court identifying the factors
in subsection E which support the court's order. If the court awards
periodic support for a defined duration, such findings shall identify the
basis for the nature, amount and duration of the award and, if
appropriate, a specification of the events and circumstances reasonably
contemplated by the court which support the award.
G. For purposes of this section and § 20-109, "date of separation"
means the earliest date at which the parties are physically separated and
at least one party intends such separation to be permanent provided the
separation is continuous thereafter and "defined duration" means a period
of time (i) with a specific beginning and ending date or (ii) specified
in relation to the occurrence or cessation of an event or condition other
than death or termination pursuant to § 20-110.
H. Where there are no minor children whom the parties have a mutual
duty to support, an order directing the payment of spousal support,
including those orders confirming separation agreements, entered on or
after October 1, 1985, whether they are original orders or modifications
of existing orders, shall contain the following:
1. If known, the name, date of birth and social security number of each
party and, unless otherwise ordered, each party's residential and, if
different, mailing address, residential and employer telephone number,
driver's license number, and the name and address of his employer;
however, when a protective order has been issued or the court otherwise
finds reason to believe that a party is at risk of physical or emotional
harm from the other party, information other than the name of the party
at risk shall not be included in the order;
2. The amount of periodic spousal support expressed in fixed sums,
together with the payment interval, the date payments are due, and
the date the first payment is due;
3. A statement as to whether there is an order for health care
coverage for a party;
4. If support arrearages exist, (i) to whom an arrearage is owed and
the amount of the arrearage, (ii) the period of time for which such
arrearage is calculated, and (iii) a direction that all payments are to
be credited to current spousal support obligations first, with any
payment in excess of the current obligation applied to arrearages;
5. If spousal support payments are ordered to be paid directly to the
obligee, and unless the court for good cause shown orders otherwise, the
parties shall give each other and the court at least 30 days' written
notice, in advance, of any change of address and any change of telephone
number within 30 days after the change;
6. Notice that in determination of a spousal support obligation, the
support obligation as it becomes due and unpaid creates a judgment by
operation of law.
§ 20-107.3. Court may decree as to property of the
parties.
A. Upon decreeing the dissolution of a marriage, and also
upon decreeing a divorce from the bond of matrimony, or upon
the filing with the court as provided in subsection J of a
certified copy of a final divorce decree obtained without the
Commonwealth, the court, upon request of either party, shall
determine the legal title as between the parties, and the
ownership and value of all property, real or personal,
tangible or intangible, of the parties and shall consider
which of such property is separate property, which is marital
property, and which is part separate and part marital property
in accordance with subdivision A 3. The court shall determine
the value of any such property as of the date of the
evidentiary hearing on the evaluation issue. Upon motion of
either party made no less than 21 days before the evidentiary
hearing the court may, for good cause shown, in order to
attain the ends of justice, order that a different valuation
date be used. The court, on the motion of either party, may
retain jurisdiction in the final decree of divorce to
adjudicate the remedy provided by this section when the court
determines that such action is clearly necessary, and all
decrees heretofore entered retaining such jurisdiction are
validated.
1. Separate property is (i) all property, real and
personal, acquired by either party before the marriage;
(ii) all property acquired during the marriage by bequest,
devise, descent, survivorship or gift from a source other
than the other party; (iii) all property acquired during the
marriage in exchange for or from the proceeds of sale of
separate property, provided that such property acquired
during the marriage is maintained as separate property; and
(iv) that part of any property classified as separate
pursuant to subdivision A 3. Income received from separate
property during the marriage is separate property if not
attributable to the personal effort of either party. The
increase in value of separate property during the marriage is
separate property, unless marital property or the personal
efforts of either party have contributed to such increases
and then only to the extent of the increases in value
attributable to such contributions. The personal efforts of
either party must be significant and result in substantial
appreciation of the separate property if any increase in
value attributable thereto is to be considered marital
property.
2. Marital property is (i) all property titled in the names
of both parties, whether as joint tenants, tenants by the
entirety or otherwise, except as provided by subdivision A 3,
(ii) that part of any property classified as marital pursuant
to subdivision A 3, or (iii) all other property acquired by
each party during the marriage which is not separate property
as defined above. All property including that portion of
pensions, profit-sharing or deferred compensation or
retirement plans of whatever nature, acquired by either spouse
during the marriage, and before the last separation of the
parties, if at such time or thereafter at least one of the
parties intends that the separation be permanent, is presumed
to be marital property in the absence of satisfactory evidence
that it is separate property. For purposes of this section
marital property is presumed to be jointly owned unless there
is a deed, title or other clear indicia that it is not jointly
owned.
3. The court shall classify property as part marital
property and part separate property as follows:
a. In the case of income received from separate property
during the marriage, such income shall be marital property
only to the extent it is attributable to the personal efforts
of either party. In the case of the increase in value of
separate property during the marriage, such increase in value
shall be marital property only to the extent that marital
property or the personal efforts of either party have
contributed to such increases, provided that any such personal
efforts must be significant and result in substantial
appreciation of the separate property.
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.
"Personal effort" of a party shall be deemed to be labor,
effort, inventiveness, physical or intellectual skill,
creativity, or managerial, promotional or marketing activity
applied directly to the separate property of either party.
b. In the case of any pension, profit-sharing, or deferred
compensation plan or retirement benefit, the marital share as
defined in subsection G shall be marital property.
c. In the case of any personal injury or workers'
compensation recovery of either party, the marital share as
defined in subsection H of this section shall be marital
property.
d. When marital property and separate property are
commingled by contributing one category of property to
another, resulting in the loss of identity of the contributed
property, the classification of the contributed property shall
be transmuted to the category of property receiving the
contribution. However, to the extent the contributed property
is retraceable by a preponderance of the evidence and was not
a gift, such contributed property shall retain its original
classification.
e. When marital property and separate property are
commingled into newly acquired property resulting in the loss
of identity of the contributing properties, the commingled
property shall be deemed transmuted to marital property.
However, to the extent the contributed property is retraceable
by a preponderance of the evidence and was not a gift, the
contributed property shall retain its original classification.
f. When separate property is retitled in the joint names of
the parties, the retitled property shall be deemed transmuted
to marital property. However, to the extent the property is
retraceable by a preponderance of the evidence and was not a
gift, the retitled property shall retain its original
classification.
g. When the separate property of one party is commingled
into the separate property of the other party, or the separate
property of each party is commingled into newly acquired
property, to the extent the contributed property is
retraceable by a preponderance of the evidence and was not a
gift, each party shall be reimbursed the value of the
contributed property in any award made pursuant to this
section.
h. Subdivisions A 3 d, e and f of this section shall apply
to jointly owned property. No presumption of gift shall arise
under this section where (i) separate property is commingled
with jointly owned property; (ii) newly acquired property is
conveyed into joint ownership; or (iii) existing property is
conveyed or retitled into joint ownership. For purposes of
this subdivision A3, property is jointly owned when it is
titled in the name of both parties, whether as joint tenants,
tenants by the entireties, or otherwise.
B. For the purposes of this section only, both parties
shall be deemed to have rights and interests in the marital
property. However, such interests and rights shall not attach
to the legal title of such property and are only to be used as
a consideration in determining a monetary award, if any, as
provided in this section.
C. Except as provided in subsection G, the court shall have
no authority to order the division or transfer of separate
property or marital property which is not jointly owned. The
court may, based upon the factors listed in subsection E,
divide or transfer or order the division or transfer, or both,
of jointly owned marital property, or any part thereof. The
court shall also have the authority to apportion and order the
payment of the debts of the parties, or either of them, that
are incurred prior to the dissolution of the marriage, based
upon the factors listed in subsection E.
As a means of dividing or transferring the jointly owned
marital property, the court may transfer or order the transfer
of real or personal property or any interest therein to one of
the parties, permit either party to purchase the interest of
the other and direct the allocation of the proceeds, provided
the party purchasing the interest of the other agrees to
assume any indebtedness secured by the property, or order its
sale by private sale by the parties, through such agent as the
court shall direct, or by public sale as the court shall
direct without the necessity for partition. All decrees
entered prior to July 1, 1991, which are final and not subject
to further proceedings on appeal as of that date, which divide
or transfer or order the division or transfer of property
directly between the parties are hereby validated and deemed
self-executing. All orders or decrees which divide or transfer
or order division or transfer of real property between the
parties shall be recorded and indexed in the names of the
parties in the appropriate grantor and grantee indexes in the
land records in the clerk's office of the circuit court of the
county or city in which the property is located.
D. In addition, based upon (i) the equities and the rights
and interests of each party in the marital property, and
(ii) the factors listed in subsection E, the court has the
power to grant a monetary award, payable either in a lump sum
or over a period of time in fixed amounts, to either party.
The party against whom a monetary award is made may satisfy
the award, in whole or in part, by conveyance of property,
subject to the approval of the court. An award entered
pursuant to this subsection shall constitute a judgment
within the meaning of § 8.01-426 and shall not be docketed by
the clerk unless the decree so directs. The provisions of
§ 8.01-382, relating to interest on judgments, shall apply
unless the court orders otherwise.
Any marital property, which has been considered or ordered
transferred in granting the monetary award under this section,
shall not thereafter be the subject of a suit between the same
parties to transfer title or possession of such property.
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.
F. The court shall determine the amount of any such
monetary award without regard to maintenance and support
awarded for either party or support for the minor children of
both parties and shall, after or at the time of such
determination and upon motion of either party, consider
whether an order for support and maintenance of a spouse or
children shall be entered or, if previously entered, whether
such order shall be modified or vacated.
G. In addition to the monetary award made pursuant to
subsection D, and upon consideration of the factors set forth
in subsection E:
1. The court may direct payment of a percentage of the
marital share of any pension, profit-sharing or deferred
compensation plan or retirement benefits, whether vested or
nonvested, which constitutes marital property and whether
payable in a lump sum or over a period of time. The court may
order direct payment of such percentage of the marital share
by direct assignment to a party from the employer trustee,
plan administrator or other holder of the benefits. However,
the court shall only direct that payment be made as such
benefits are payable. 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.
2. To the extent permitted by federal or other applicable
law, the court may order a party to designate a spouse or
former spouse as irrevocable beneficiary during the lifetime
of the beneficiary of all or a portion of any survivor benefit
or annuity plan of whatsoever nature, but not to include a
life insurance policy. The court, in its discretion, shall
determine as between the parties, who shall bear the costs of
maintaining such plan.
H. In addition to the monetary award made pursuant to
subsection D, and upon consideration of the factors set forth
in subsection E, the court may direct payment of a percentage
of the marital share of any personal injury or workers'
compensation recovery of either party, whether such recovery
is payable in a lump sum or over a period of time. However,
the court shall only direct that payment be made as such
recovery is payable, whether by settlement, jury award, court
award, or otherwise. "Marital share" means that part of the
total personal injury or workers' compensation recovery
attributable to lost wages or medical expenses to the extent
not covered by health insurance accruing 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.
I. Nothing in this section shall be construed to prevent
the affirmation, ratification and incorporation in a decree of
an agreement between the parties pursuant to §§ 20-109 and
20-109.1. Agreements, otherwise valid as contracts, entered
into between spouses prior to the marriage shall be recognized
and enforceable.
J. A court of proper jurisdiction under § 20-96 may
exercise the powers conferred by this section after a court of
a foreign jurisdiction has decreed a dissolution of a marriage
or a divorce from the bond of matrimony, if (i) one of the
parties was domiciled in this Commonwealth when the foreign
proceedings were commenced, (ii) the foreign court did not
have personal jurisdiction over the party domiciled in the
Commonwealth, (iii) the proceeding is initiated within two
years of receipt of notice of the foreign decree by the party
domiciled in the Commonwealth, and (iv) the court obtains
personal jurisdiction over the parties pursuant to
subdivision A 9 of § 8.01-328.1, or in any other manner
permitted by law.
K. The court shall have the continuing authority and
jurisdiction to make any additional orders necessary to
effectuate and enforce any order entered pursuant to this
section, including the authority to:
1. Order a date certain for transfer or division of any
jointly owned property under subsection C or payment of any
monetary award under subsection D;
2. Punish as contempt of court any willful failure of a
party to comply with the provisions of any order made by the
court under this section;
3. Appoint a special commissioner to transfer any property
under subsection C where a party refuses to comply with the
order of the court to transfer such property; and
4. Modify any order entered in a case filed on or after
July 1, 1982, intended to affect or divide any pension,
profit-sharing or deferred compensation plan or retirement
benefits pursuant to the United States Internal Revenue Code
or other applicable federal laws, only for the purpose of
establishing or maintaining the order as a qualified domestic
relations order or to revise or conform its terms so as to
effectuate the expressed intent of the order.
Section 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the
court shall consider all evidence presented relevant to any issues joined
in that proceeding. The court's decision shall be rendered based upon the
evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support under
this title or Title 16.1 or Title 63.2, the court shall consider all
evidence presented relevant to any issues joined in that proceeding. The
court's decision in any such proceeding shall be rendered upon the
evidence relevant to each individual case. However, there shall be a
rebuttable presumption in any judicial or administrative proceeding for
child support, including cases involving split custody or shared
custody, that the amount of the award which would result from the
application of the guidelines set out in Section 20-108.2 is the correct
amount of child support to be awarded. Liability for support shall be
determined retroactively for the period measured from the date that the
proceeding was commenced by the filing of an action with any court
provided the complainant exercised due diligence in the service of the
respondent or, if earlier, the date an order of the Department of Social
Services entered pursuant to Title 63.2 and directing payment of support
was delivered to the sheriff or process server for service on the
obligor.
In order to rebut the presumption, the court shall make written
findings in the order, which findings may be incorporated by reference,
that the application of such guidelines would be unjust or inappropriate
in a particular case. The finding that rebuts the guidelines shall state
the amount of support that would have been required under the
guidelines, shall give a justification of why the order varies from the
guidelines, and shall be determined by relevant evidence pertaining to
the following factors affecting the obligation, the ability of each party
to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family
members;
2. Arrangements regarding custody of the children, including the cost
of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or
voluntarily under-employed; provided that income may not be imputed to
the custodial parent when a child is not in school, child care services
are not available and the cost of such child care services are not
included in the computation and provided further, that any consideration
of imputed income based on a change in a party's employment shall be
evaluated with consideration of the good faith and reasonableness of
employment decisions made by the party;
4. Debts of either party arising during the marriage for the benefit of
the child;
5. Direct payments ordered by the court for maintaining life
insurance coverage pursuant to subsection D, education expenses, or other
court-ordered direct payments for the benefit of the child;
6. Extraordinary capital gains such as capital gains resulting from the
sale of the marital abode;
7. Any special needs of a child resulting from any physical,
emotional, or medical condition;
8. Independent financial resources of the child or children;
9. Standard of living for the child or children established during the
marriage;
10. Earning capacity, obligations, financial resources, and special
needs of each parent;
11. Provisions made with regard to the marital property under Section
20-107.3, where said property earns income or has an income-earning
potential;
12. Tax consequences to the parties including claims for exemptions,
child tax credit, and child care credit for dependent children;
13. A written agreement, stipulation, consent order, or decree
between the parties which includes the amount of child support; and
14. Such other factors as are necessary to consider the equities for
the parents and children.
C. In any proceeding under this title or Title 16.1 or Title 63.2 on
the issue of determining child support, the court shall have the
authority to order a party to provide health care coverage, as defined in
Section 63.2-1900, for dependent children if reasonable under all the
circumstances and health care coverage for a spouse or former spouse.
D. In any proceeding under this title, Title 16.1 or Title 63.2 on
the issue of determining child support, the court shall have the
authority to order a party to (i) maintain any existing life insurance
policy on the life of either party provided the party so ordered has the
right to designate a beneficiary and (ii) designate a child or children
of the parties as the beneficiary of all or a portion of such life
insurance for so long as the party so ordered has a statutory obligation
to pay child support for the child or children.
E. Except when the parties have otherwise agreed, in any proceeding
under this title, Title 16.1 or Title 63.2 on the issue of determining
child support, the court shall have the authority to and may, in its
discretion, order one party to execute all appropriate tax forms or
waivers to grant to the other party the right to take the income tax
dependency exemption for any tax year or future years, for any child or
children of the parties for federal and state income tax purposes.
F. Notwithstanding any other provision of law, any amendments to this
section shall not be retroactive to a date before the effective date of
the amendment, and shall not be the basis for a material change in
circumstances upon which a modification of child support may be based.
G. Child support payments, whether current or arrears, received by a
parent for the benefit of and owed to a child in the parent's custody,
whether the payments were ordered under this title, Title 16.1, or Title
63.2, shall not be subject to garnishment. A depository wherein child
support payments have been deposited on behalf of and traceable to an
individual shall not be required to determine the portion of deposits
which are subject to garnishment.
§ 20-109. Changing maintenance and support for a spouse; effect of
stipulations as to maintenance and support for a spouse; cessation
upon cohabitation, remarriage or death. —
A. Upon petition of either party the court may increase, decrease, or
terminate the amount or duration of any spousal support and maintenance
that may thereafter accrue, whether previously or hereafter awarded, as
the circumstances may make proper. Upon order of the court based upon
clear and convincing evidence that the spouse receiving support has been
habitually cohabiting with another person in a relationship analogous to
a marriage for one year or more commencing on or after July 1, 1997, the
court shall terminate spousal support and maintenance unless (i)
otherwise provided by stipulation or contract or (ii) the spouse
receiving support proves by a preponderance of the evidence that
termination of such support would be unconscionable. The provisions of
this subsection shall apply to all orders and decrees for spousal
support, regardless of the date of the suit for initial setting of
support, the date of entry of any such order or decree, or the date of
any petition for modification of support.
B. The court may consider a modification of an award of spousal support
for a defined duration upon petition of either party filed within the
time covered by the duration of the award. Upon consideration of the
factors set forth in subsection E of § 20-107.1, the court may
increase, decrease or terminate the amount or duration of the award upon
finding that (i) there has been a material change in the circumstances of
the parties, not reasonably in the contemplation of the parties when the
award was made or (ii) an event which the court anticipated would occur
during the duration of the award and which was significant in the making
of the award, does not in fact occur through no fault of the party
seeking the modification. The provisions of this subsection shall apply
only to suits for initial spousal support orders filed on or after July
1, 1998, and suits for modification of spousal support orders arising
from suits for initial support orders filed on or after July 1, 1998.
C. In suits for divorce, annulment and separate maintenance, and in
proceedings arising under subdivision A 3 or subsection L of § 16.1-241,
if a stipulation or contract signed by the party to whom such relief
might otherwise be awarded is filed before entry of a final decree, no
decree or order directing the payment of support and maintenance for the
spouse, suit money, or counsel fee or establishing or imposing any other
condition or consideration, monetary or nonmonetary, shall be entered
except in accordance with that stipulation or contract. If such a
stipulation or contract is filed after entry of a final decree and if any
party so moves, the court shall modify its decree to conform to such
stipulation or contract.
D. Unless otherwise provided by stipulation or contract, spousal
support and maintenance shall terminate upon the death of either party or
remarriage of the spouse receiving support. The spouse entitled to
support shall have an affirmative duty to notify the payor spouse
immediately of remarriage at the last known address of the payor spouse.
§ 20-110. Maintenance and support for a spouse to cease on
remarriage. —
If any former spouse to whom support and maintenance has been awarded
shall thereafter marry, such support and maintenance shall cease as of
the date of such marriage. The spouse entitled to current support shall
have an affirmative duty to notify the payor spouse immediately of such
remarriage. Failure of such spouse to notify the payor shall entitle the
payor to restitution equal to the amount of any current support and
maintenance paid after the date of the remarriage, together with interest
from the date of the remarriage and reasonable attorney's fees and
costs.