Archive for May, 2012

Is Retirement Foreseeable?

Friday, May 4th, 2012

           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.

Divorce by Affidavit

Wednesday, May 2nd, 2012

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.

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