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Davidson & Kitzmann, PLC
211 E. High Street
Charlottesville, VA 22902
(434) 972-9600
Charlottesville Divorce Lawyers

If you would like to schedule a consultation with an attorney please call us at (434) 972-9600 or use the form below.


Laws


Statutes

There are a dozens of separate statutes that may come into play in a divorce or family law case. Because these statutes are constantly being amended, it is important that the most recent version is consulted. In addition, if you find a court case or legal article that looks helpful, if that court case was decided or article written based on a prior version of a statute, the case or article won't be relevant any longer. As a result, most cases and articles more than a year or two old are outdated. A divorce lawyer must constantly keep up to date with the latest changes to all of the statutes that may be relevant in a case.  

The main Virginia statute relating specifically to divorce is 
Title 20 - Domestic Relations.  Its provisions cover almost all issues related to divorce in Virginia including the grounds for divorce, child support, spousal support, custody and visitation and the distribution of property. Certain family matters can also be handled by the Juvenile and Domestic Relation District Court, and the statute covering these issues is Title 16.1 - Courts not of Record  

Major Family Law Statutes

Click the links below to jump to the major Virginia family statutes.

Cases

There are thousands of family law cases decided every year, and to a non-lawyer, the amount of information in those cases can be overwhelming. What most non-lawyers don't know, however, is that the vast majority of cases decided each year are irrelevant.


A trial court is not bound by the decision of any other trial court. That means that a judge in one court (for example, the Albemarle County Circuit Court) can, and will almost certainly, rule differently than a judge in another trial court.  For example, a judge in one court may require that a contempt petition be personally served; a judge in another court may require something different. Clients often hear from friends or family how a judge in some Virginia court or a judge in some other state ruled. Those rulings are completely irrelevant and have no impact at all on how the judge in the client's case may rule. The best predictor of how a judge may rule is how that particular judge ruled in the past. For instance, the judge of the Albemarle County Circuit Court has made hundreds of spousal support rulings; by knowing how this particular judge rules, a lawyer can tailor the evidence and arguments in a case accordingly.


A client may also hear about decisions of the Court of Appeals. The vast majority of these decisions are also irrelevant. Judges in trial courts are not bound by "unpublished" rulings of the Virginia Court of Appeals. That means a judge in a trial court can make a different ruling than the Court of Appeals made in an unpublished case. Unpublished doesn't mean that the ruling is not available online or reported in the news - in fact, all rulings are publicly available. Rather, unpublished is a legal term that means the Court of Appeals decided its ruling would not be binding on the trial courts. So, if a client searches the internet, he or she may find hundreds of rulings of the Court of Appeals; only a small percentage of those rulings are actually "published". The majority of the cases are unpublished, not binding on the trial court, and not a good indicator of the "law" in any particular area. Rather, to prepare for court, a lawyer will sift through the rulings to find published rulings that are helpful to the client's case.

Judges in trial courts are not bound by rulings of the Virginia Court of Appeals that are at odds with a ruling of the Virginia Supreme Court. For example, over the years there were dozens of rulings of the Court of Appeals specifying exactly how stock options were to be classified and divided in divorce. Then, in 2011, the Virginia Supreme Court decided that stock options should be classified and divided in an entirely different way. That Supreme Court ruling made all of those earlier Court of Appeals rulings irrelevant.  

Judges in trial courts are not bound by rulings of the Virginia Court of Appeals dealing with a part of a statute that was subsequently amended. Because the Virginia Legislature routinely amends the Virginia statutes, rulings of the Court of Appeals more than a few years old may not be a good indication of the "law".  

Virginia trial courts are bound by rulings of the Virginia Supreme Court; provided, however, that there has not been a more recent ruling on that issue by the Virginia Supreme Court, and provided the ruling did not deal with part of a statute that was amended after the ruling.  

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Virginia Family Law Blog

Virginia's laws impacting family issues are constantly being modified by the Virginia Legislature and interpreted by Virginia courts.  As a result, the law is always in flux.  Please visit Virginia Family Law Blog  to read about recent developments

Recent Cases


Virginia's "Crimes Against Nature" Statute Found Unconstitutional

In Virginia, sexual activity other than intercourse, is illegal. These sexual activities include those that are regularly practiced by most couples. While this law is rarely prosecuted, it plays a very important role in divorce cases. In Virginia, a spouse can be denied spousal support if he or she engaged in a "crime against nature". Because that activity is technically illegal, a spouse and his/her sexual partner, can refuse to testify about their sexual activities on the basis of the 5th Amendment. As a result, it is very hard to prove that the "crime against nature" had occurred. The Fourth Circuit Court of Appeals, in McDonald v. Commonwealth, has ruled that the "crimes against nature" statute, Va. Code Section 18.2-361, is unconstitutional. The decision is not binding on Virginia trial courts, but is very likely to be persuasive. As a result, a state court challenge to the statute may be around the corner.


Proper for Trial Court to Refuse to Divide Under Water Property

A couple owned several properties that were "underwater" - that is, the couple owed more than the properties were worth.  The trial court decided that the properties were not subject to equitable distribution, and so no division or other order was made.  As a result, the couple continued owning the property after the divorce.  The trial court's ruling was upheld on appeal. Fox v. Fox Use of Marital Assets to Pay Support Not Waste The husband's use of over $1 million of marital assets, rather than his income, to pay support and other expenses, is not waste and not "good cause" to value the accounts from which he drew the money as of the date before the withdrawals. Wright v. Wright


Bonus Not Included in ‘Income’

Although husband got a $36,538 bonus in 2008, without a track record on the bonuses and with no word of a 2009 bonus as of the November hearing, a Loudoun County Circuit Court says it will not add a bonus to husband’s income; should husband receive a bonus for 2009, wife can move for modification. Schmidt v. Bjerke (VLW 010-8-012) (7 pp.)


Wife Cannot Veto Daycare Provider

Husband allegedly choosing his girlfriend’s daughter as an after-school daycare provider, and then switching to a friend of the daughter, is not a basis for mom to complain about the provider, says a Loudoun County Circuit Court; there is no evidence any daycare provider hired by husband is harming the children, and the court says continued joint legal custody does not necessarily give mom veto power over daycare providers. Kirkendale v. Kirkendale (VLW 010-8-013) (19 pp.)


Health Care Premiums Stop, Contempt Hearing Starts

A husband can’t call wife’s health insurance “spousal support” and stop paying when she remarries, and the Court of Appeals upholds a civil contempt order against the husband. McCoy v. McCoy (VLW 010-7-001) (7 pp.)


Wife Needs Recovery Time from ‘Elective’ Surgery

A husband’s complaint that wife should be working full-time after her “elective” bilateral mastectomy is rebuffed by a Fairfax Circuit judge who says wife’s surgery was “‘elective’ only in the sense that she ‘elected’ to stay alive,” and husband must pay $3,000 in monthly support. Kelley v. Kelley (VLW 010-8-019) ( 5 pp.)


No Reduced Support for Lawyer’s Job Change

An IP lawyer who wanted lower spousal support payments after he hung out his own shingle could have stayed at his old firm for less pay, and the Court of Appeals says the lawyer must keep paying $2,200 per month. Amberly v. Amberly (VLW 010-7-036(UP)) (5 pp.)


Debtor Husband Shares in Marital Home

Although a bankrupt husband sold his tenant-in-common interest in the marital home to wife, he still gets a share of the equity in the home, says a Norfolk Circuit Court. Peck v. Brenner (VLW 010-8-064) (5 pp.)


Early Retiree Can’t Terminate Support

Although husband reduced his income by 55 percent when he retired from the railroad at age 60, he still was able to purchase a house, car and furniture after his retirement and he can afford to continue the spousal support his wife needs, the Court of Appeals says. Johnson v. Johnson (VLW 010-7-110(UP)) (5 pp.)


‘Detriment to Child’ Finding is Necessary

The Court of Appeals says a trial court is constitutionally required to consider whether a child’s continued relationship with a biological parent is detrimental to the child, and, because the trial court here failed to make that finding prior to allowing adoption over the objection of a nonconsenting parent, its application of Va. Code §§ 63.2-1203 and -1205 violated the mother’s 14th Amendment right to due process. Todd v. Copeland (VLW 010-7-083) (21 pp.)


Retired Husband Gets Limited Support

Although husband claimed he had retired at age 55 and he requested $6,000 in monthly spousal support, the trial court did not err in awarding husband monthly spousal support of $2,000 for 20 months, the Court of Appeals says. Leake v. Taylor (VLW 010–7-120(UP)) (28 pp.)


Braces Recommended, but not ‘Necessary’

Although an orthodontist recommended treatment of both children, a trial judge decided treatment was “necessary” only for the 15-year-old, and not for the 12-year-old; the Court of Appeals, with a dissent, affirms the order requiring father to help pay for only one child’s treatment. Barrett v. Kantz (VLW 010-7-145(UP)) (7 pp.)


Non-Parent Custody Award Remanded

A dad who kept up weekend and weekday visits and had a “good relationship” with his son did not voluntarily relinquish his parental rights, and the Court of Appeals remands an award of custody to a non-parent. Barbour v. Graves (VLW 010-7-193(UP)) (8 pp.)


Premarital Agreement ‘Til Death Do Us Part’

A couple had a premarital agreement but they intended that it cover real estate in Virginia and Florida only in case of death, not divorce, and the Court of Appeals reverses an equitable distribution of the real estate. Schuman v. Schuman (VLW 010-7-144(UP)) (31 pp.)


Debtor Dad is Virginia ‘Resident,’ Faces Jail Term

A dad who had a long-term consulting contract in Virginia but said his residence was in New York, where he and Wife No. 4 were divorcing, “resided” in Virginia for venue under 18 U.S.C § 228, and the 4th Circuit upholds a two-year jail term for his failure to pay over $200,000 in back support. U.S. v. Novak (VLW 010-2-115) (13 pp.)


Wife’s Damage & Attorney’s Fee Awards Reversed

A wife’s failure to consummate a 1031 like-kind exchange cannot be blamed on husband’s demand for a partial escrow of the proceeds from sale of their real estate, and the Court of Appeals reverses damage and attorney’s fee awards for wife. Cook v. Cross (VLW 010-7-221(UP)) (8 pp.)


Gifts to Wife, Gifts to Couple

Although wife’s father provided $1.8 million to a couple, including support for husband’s kids from a prior marriage, husband still collects 40 percent of the marital estate, as the father-in-law made some gifts to the couple. Cummings v. Cummings (VLW 010-8-125) (4 pp.)


No Increase for Wife’s Share of Pension

A Loudoun County Circuit Court interprets a 1988 PSA to give wife only a share of husband’s earned county retirement benefits in effect then, and not an additional share of his future benefits that accrued through VRS. Roth v. Roth (VLW 010-8-110) (6 pp.)


Widow Claims Life Insurance Payout to Ex-Wife

Although ex-wife is the named beneficiary for husband’s federal employee life insurance proceeds, husband’s widow can use a Virginia statute to ask for a constructive trust on the $125,000 policy paid out to the ex-wife, a Fairfax Circuit Court says in this first-impression case. Hillman v. Maretta (VLW 010-8-120) (12 pp.)


No Party Signature, No PSA Enforcement

In this case of first impression, a Hanover Circuit Court denies enforcement of a “term sheet” signed by the parties’ lawyers, but not the parties, after negotiations on ED and spousal support. Jordan v. Jordan (VLW 010-8-123) (3 pp.)


Court Divides Commingled Accounts

For a couple who worked long hours to build up their carpet-cleaning business and commingled their business and personal accounts, a Salem Circuit Court divides the marital property, with an extra monetary award to wife for husband’s use of marital assets to buy his separate floor-refurbishing business. Reynolds v. Reynolds (VLW 010-8-132) (7 pp.)


Guardian Shows Intent for Divorce

The Court of Appeals upholds a divorce for a 93-year-old incapacitated husband from his 88-year-old wife, on evidence that husband formed an intent to live separate and apart in 2006. Andrews v. Creacey (VLW 010-7-294) (24 pp.)