The Court of Appeals of Virginia answered this question in the negative in Dailey v Dailey, 59 Va. App 734, 722 SE 2d 321, 2012 Va. App LEXIS 57. 

            The parties had an agreement that provided for alimony of $1,000 per month, modifiable upon a material change in circumstance.    The agreement was silent on whether Mr. Dailey’s retirement constituted a material change in circumstances.   The agreement was incorporated in the final decree of divorce entered in September 2009.

            In November 2010, Mr. Dailey retired, Ms. Dailey began receiving her share of the pension as agreed, $2900 per month, and Mr. Dailey moved to terminate or reduce spousal support.  The parties stipulated that the retirement was a material change in circumstances.  Ms. Dailey argued successfully that it did not warrant a termination or reduction of spousal support because while retirement was a material change, it was also one that was entirely foreseeable.  The trial court denied Mr. Dailey’s motion.

            The Court of Appeals agreed that retirement is foreseeable in the sense that most people eventually retire.  The court noted, however, that Mr. Dailey testified that he had no plans to retire at the time of the divorce.  And the Court reasoned that the effect of retirement was not necessarily foreseeable.  It was noted, for example, that the Agreement provided that Ms. Dailey would be paid her share of the retirement if, as and when Mr. Dailey’s pension was paid out, and that this particular pension plan had no survivor benefits if the participant died before retirement.

            The Court of Appeals held termination or reduction of spousal support upon retirement was not barred under the Agreement on the basis that retirement was foreseeable and therefore not a triggering material change in circumstances.  The Court of Appeals sent the case back to the trial court to determine whether or not to terminate or reduce spousal support.

            Does this mean that in the next Virginia case with a pension with a pre-retirement survivor’s benefit, the spousal support payer’s retirement, and its effect, will be foreseeable and therefore not grounds for a termination or reduction of support?   It is not clear.  Does this mean that a support payer with a pension cannot leave this issue open in the marital settlement agreements because of that risk? Probably so.  It is certainly something we will be looking at very carefully, and in appropriate cases,  negotiating what happens when the support payer retires.  This is especially important in a case like this one where, at the time of divorce, the payer had 29 years of creditable service, and he ended up retiring the very next year.

Virginia law will allow for divorce by affidavit beginning July, 1 2012. This will end the requirement of oral testimony at court or deposition by one divorcing spouse and a corroborating witness.  This was required, and affidavits will continue to be required, even when all custody, support and property issues are settled.

                The new law will dispense with the need for these uncontested divorce hearings, which the  divorce apparatus of clerks, judges and lawyers insist on calling ore tenus hearings. 

                This will also end my practice of filing all uncontested divorce cases in the Circuit Court of Arlington County.  I did this because the Court was convenient to most clients, witnesses and me and scheduling was easy – Tuesdays and Wednesdays at 9:30 a.m.  Also because from the point of view of our clients it was a clear event ending the case.  You went to court, you told your story, the judge listened and signed an Order granting your divorce, and you walked out of the courthouse with a certified copy of your Final Order of Divorce, all within an hour.  I’ve always thought that after all most people go through at the end of a marriage, and the all the twists and turns of the legal and financial separation and divorce, it was fitting to conclude with a clear event like the uncontested divorce hearing at which the Judge signed the Final Order of Divorce.  Alas, from now on Virginia clients, like those in Maryland and DC, will receive their Final Order of Divorce in the mail a few weeks or months after signing off on the now-forgotten affidavit – another piece of mail from the divorce lawyer.

There is no such term as ”legal separation” in Virginia law.  Sometimes people may refer to themselves as legally separated after they have signed a Marital Settlement Agreement with their spouse and are waiting out the required separation period until they can file for an uncontested divorce.

However, you can obtain a limited divorce, also called a “divorce a mensa et thoro” (from bed and board) if you have grounds. The grounds for a limited divorce are different than the grounds required for a final divorce.  They are as follows:

Desertion or abandonment – no minimum duration

Cruelty – no required duration after the act of cruelty.

Note that, unlike for final divorce, there are no “no fault” limited divorce grounds in Virginia.

In Virginia, the reason for filing a limited divorce is usually to get your support or custody case into Circuit Court rather than Juvenile & Domestic Relations District Court when you need a court order regarding support or custody and you do not have grounds for a final divorce.  If you think you have this situation, ask us about it.

A permanent and final divorce is called a “divorce a vinculo matrimonii” (meaning from the bonds of matrimony) in Virginia. All divorces require proof of grounds. If you are filing for divorce, you have to have grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Virginia you can be living separate and apart under the same roof, but this is difficult to prove, and requires planning.
The grounds for a final divorce in Virginia are as follows:
1. Adultery
2. Felony conviction – at least one year imprisonment.
3. Cruelty – one year after the act of cruelty.
4. Desertion continuing for one year.
5. Voluntary separation – for one year without interruption or marital relations and no reasonable prospect of reconciliation. If there are no minor children and the spouses have a written separation agreement, the require period is six months. In Virginia you can be living separate and apart under the same roof during the required separation period, but this requires careful planning and can be difficult to prove.

If the parties agree to be divorced, you generally need a written Marital Settlement Agreement that makes adequate and sufficient provisions in writing for the custody and support of any minor children of the marriage and makes a fair and equitable division of your property. If there are no minor children, and a written Separation Agreement, you can file for divorce after six month’s separation.

If there are minor children, or you and your spouse cannot reach an agreement, you have to be separated for at least one year. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, the Agreement need only say that differences have arisen that prevent you from living together as husband and wife, you have or will separate, there is no hope of reconciliation and you intend to end the marriage.

          Pre-nuptial agreements, also called premarital agreements, were once thought of as something for the very rich. This has changed and now many couples across the income spectrum enter into prenuptial agreements, or at least explore whether a prenuptial agreement is right for them.

            Why have a prenuptial agreement?  Even if you and your fiancé do not have a prenuptial agreement, you will, upon marriage, have an agreement – your state’s marital contract.  Its terms have been set by the laws passed by legislature and the decisions made by the judges over the years. The marital contract in your state is what the legislature has decided is best overall for the vast number of marriages across your state.  This is supplemented by what your state’s judges decided was best in the particular cases that came before the judges over the years.

            It may be that your state’s marital contract is what is best for you and your fiancé and it might not be.  You and your fiancé can look at your particular circumstances and your state’s applicable law and decide whether the provisions of state law are appropriate in all respects for your marriage.  If you decide those provisions are not best for your marriage, you can make your own particular prenuptial agreement.  You will be talking about property, debts, death, and perhaps how to settle things in the unhappy event of a divorce.  Arriving at a premarital agreement is not, sadly, a romantic process.  But it can be an open discussion that begins your marital communications on a sound basis.

            What is the marital contract and what does a prenuptial agreement cover?  Briefly what we refer to as the marital contract is the law regarding the financial rights and obligations of spouses at death – intestate succession and election against the will, and at divorce – claims against marital property and for allocation of marital debt, and claims for support.  Therefore, the most important purpose of a prenuptial agreement is to specify what happens to property upon the death of the spouses and what happens in the event of a divorce.    See previous posts regarding rights of a surviving spouse and various provisions of divorce law in Maryland, Virginia and the District of Columbia.       

            In your prenuptial agreement you and your spouse can identify all your premarital property, select your own rules for what property will be marital and what will be separate, and the disposition of property at death and at divorce.  You can also agree on rules for determining what debts are marital and shared and what debts are separate and therefore the obligation of the spouse who incurred the debt.  And you can also waive alimony or specify what alimony will be.  And your prenuptial agreement can have other provisions particular to your marriage.

            When is a prenuptial agreement appropriate?  Only you and your fiancé can decide whether a prenuptial agreement is appropriate for you.  But there are various circumstances that indicate the likely need for a prenuptial agreement.  A few examples are one or both of you: 1) have children from a prior marriage or relationship; 2) own and operate a business; 3) own real property or have substantial premarital retirement accounts; 4) are leaving employment or relocating on account of the marriage; and 5) have obligations under a prior marital settlement agreement or divorce decree.

          A couple of years ago I received a call from a friend at the public defender’s office in Arlington.  She had been contacted by the adult children of a father who had been incarcerated for civil contempt nine months ago and remained in custody.  Since it was not a criminal case the P.D.’s office could not represent him.  I agreed to take the case.

            One of the things I learned in reviewing the case history was that, at the time the defendant was incarcerated his salary was being garnished the maximum allowable amount for support and other divorce obligations, but it was less than the amount ordered.  Hoping to shake loose the money the custodial parent thought Father had, her counsel sought contempt and incarceration and prevailed.  While the Father was incarcerated, he lost his job and lost his home to foreclosure.  And Mother and the child were deprived of the money that he had been paying by garnishment.  Talk about lose-lose. 

            We were able to obtain father’s release from prison but he was unemployed for a long time thereafter.  The last I heard of the matter he still earned much less than he did at the time he was incarcerated.  Had the safeguards that, on Monday, the Supreme Court held were required by the U.S. Constitution been in effect in this case, maybe this bad outcome for all involved would have been avoided.

            I have also had my share of frustrating child support and other family law collection cases as Plaintiff’s counsel.  This is an area of important competing interests that must be balanced in arriving at sound public policy.  The Supreme Court struck the proper balance in the Turner case.  See my June 21st post for the Court’s ruling in that case.

           The Supreme Court struck the right balance in this case. (See yesterday’s post  summarizing the ruling.) Maryland and D.C already require essentially what the Court said was necessary in this case.  Virginia does not expressly require a showing that the alleged civil contemnor lacks the ability to pay. 

            The Court was correct to tread very carefully in setting up any procedural hurdles in the child support collection process.  Late or non-payment of child support usually causes immediate substantial financial difficulty to the custodial parent and children.  The states and federal government recognize this in providing many special streamlined procedural rules and extra remedies to encourage prompt payment and facilitate collection of child support. 

         But there is no more fundamental right than personal liberty.  And there are (especially now) child support obligors who really cannot pay what they owe. 

           This is an area of important competing interests that must be balanced in arriving at sound public policy.  The Supreme Court struck the proper balance in the Turner case.

            Yesterday, the Supreme Court decided Turner v Rogers, 387 S. C. 142, 691 S. E. 2d 470, a case involving incarceration for contempt of court for failure to pay child support, something which is an every day occurrence in courts all over the country. 

            The petitioner argued that an alleged contemnor facing imprisonment should be entitled to counsel under the U.S. Constitution. Two important policies were in play – individual liberty vs. the interest in prompt and full payment of court-ordered child support.  The Court has previously ruled that civil contempt penalties, including incarceration, do not trigger federal constitutional guaranties because they are not punishment, their purpose is to coerce compliance with the court order.  The time-worn phrase is the Defendant “has the keys to the jailhouse in his pocket.”  If he pays – he walks.

         The Court declined to rule that defendants in civil contempt cases are entitled to legal counsel and, if indigent, one provided by the state.  But the Court held that federal constitution guaranties require substitute procedural safeguards to reduce the risks of erroneous incarcerations of child support defendants who lack the ability to pay.  These safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.  Since the record indicated that Turner was incarcerated without these safeguards, the Court vacated the ruling and remanded the case to the lower court.

Determining Marital Property in Maryland, Virginia and The District Of Columbia

 When you are married, everything you acquire during the marriage is marital property unless it’s a gift or inheritance, proceeds of gift or inheritance, or excluded by a valid agreement.  Whether something is marital property does not affect title to the property, transferability, right to possession or anything else.  It’s a concept that only matters at the time of divorce.  Marital property is what gets divided between the parties by their agreement of the judge’s order.

This post is about when the accumulation of marital property ends.  It starts at the time of the marriage.  When you return from the honeymoon and go to work the next Monday morning you are earning marital property – the stuff the divorce judge divides.  When is the first day you can go to work and earn separate non-marital property?  It depends on the jurisdiction. 

Section 8-201(e) of the Family Law Article of the Maryland Code provides that  marital property means the property, however titled, acquired by 1 or both parties during the marriage.  The applicable D.C statute is Section 16-910 which provides in part that the Court shall value and distribute … property and debt accumulated during the marriage.  The applicable Virginia statute is Virginia Code Section 20-107.3 which provides in part A.2 that  All property … 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.

When you and your spouse have separated, intending to remain separated, and do not have a property settlement agreement, in Maryland and the District of Columbia the property you acquire from the date of separation until the date of divorce is marital property. In Virginia such property it is not presumptively marital, and in general is determined to be separate property, unless special facts and circumstances are established to overcome the presumption.

Property means anything of value including wages, 401(k) accumulations, vehicles, real property, etc.  In a particular case, like one with a long separation before divorce where one spouse earned a lot more and acquired a lot more property than the other, this difference in the law can make a huge difference in outcome. 

I had such a case a couple of years ago.   It was a second marriage, no children of the marriage, the parties had been married a relatively long time but had not spent much time together.  The higher earner and our client, the wife, spent lots of time on the road for her employment.   The separation was sort of a gradual thing.  They had not seen each other at all for about three years.  They had only spent holidays together for about the four years before that, and had not had marital relations in all that time.  The clearest event establishing the separation was Wife’s purchase of a home in Virginia in her own name with her own funds three years past.  Husband lived in Maryland.

We decided to try to make this a Virginia divorce case even though the Virginia Courts did not have personal jurisdiction  over the Husband who had never lived in Virginia.  I thought it was worth the effort because it seemed unfair that Wife would have to divide everything she had acquired over the seven year period that the spouses had lived apart and had completely separate finances.

I sent a settlement proposal – no response.  I filed a Complaint for Divorce and served it on Defendant by mail with a form called waiver/acceptance of service.  If he signed and returned it we could go forward.  On the last day for a timely Answer I got a call from a Virginia law firm requesting a short extension of time to respond.  I agreed and waited for the motion to dismiss that I expected would be filed and then granted, leaving us with a Maryland case in which our client’s accumulated property for seven years of separation and counting would be on the table.  I updated our client and told her what I expected to happen.

But it didn’t.  Husband’s Virginia counsel filed an Answer submitting Husband to the Court’s jurisdiction and never raised the lack of personal jurisdiction.  In the negotiations Husband’s counsel worked tirelessly, brilliantly and somewhat successfully to discover and assert facts to move the date of final separation forward so that husband could share in the substantial property Wife has accumulated during the early years of the separation.  Nice work but it would have been totally unnecessary if the case had been filed in Maryland as it should have been.  Everything Wife had accumulated for the seven years of separation to date and thereafter continuing to the date of divorce or date of Agreement would have been marital property.

If you have a long separation and a big difference in post-separation property you probably want your divorce case to be heard in Virginia if you are the spouse with more post-separation property and you want it heard in D.C. or Maryland if you are the spouse with less post-separation property.  As you can see, a little planning and a little audacity can get you into the Court you want to be in.