2016 Legislative Changes to Virginia Family Law

by Sands Anderson PC

The 2016 Virginia General Assembly enacted several changes to statutes relating to family law in the Commonwealth. Those changes are effective July 1, 2016 and include the following:

Equitable Distribution.
House Bill 404 modified Virginia’s equitable distribution statute, Virginia Code § 20-107.3, to provide that if one spouse has in their possession and control separate property of the other party, then the Court can order the separate property to be transferred to the owning spouse. Generally, separate property is property that was acquired by one of the spouses prior to the marriage or after the parties separated, or was acquired during the marriage through inheritance or gift. Previously, the equitable distribution statute did not authorize the Court to make any order with regard to separate property, meaning that the owning spouse was required to file a separate action in General District Court or Circuit Court to require their spouse to return their property to them.

Submission of Affidavits.
House Bill 642 modified Virginia Code § 20-106 to provide that either party could submit depositions or affidavits to support the grounds of divorce. The statute previously provided that only the plaintiff could submit the depositions or affidavits.

Spousal Support.
House Bill 668 provides that the Court must consider the circumstances and factors that contributed to the dissolution of the marriage, specifically including any fault ground for divorce, when the Court determines the nature, amount and duration of a spousal support award. Previously, the spousal support statute, Virginia Code § 20-107.1 did not include the circumstances and factors that contributed to the dissolution of the marriage in the identified items that the Court was required to consider in awarding spousal support. The prior version of the statute presented a dichotomy between the equitable distribution statute, which required a trial court to consider the circumstances and factors that lead to the dissolution of the marriage and the spousal support statute, which did not include that consideration. Whether this will result in higher or lower spousal support awards than under the prior version of the statute remains to be seen, but the argument can certainly be made that the General Assembly modified the statute to require it so the duration and or amount of support ought to be affected by the circumstances and factors that lead to the dissolution of the marital relationship. In theory, a “bad actor” may suffer financially, whether as the spouse paying support or receiving support, based on this modification.

Pendente Lite (Temporary) Spousal Support.
Virginia Code § 20-103 provides, in part, that while a case is pending, the Court may award temporary spousal support. Senate Bill 70 modified that statute to provide that the Court’s order will provide that the temporary spousal support award will be paid from the post-separation income of the paying spouse unless the court, for good cause shown, orders otherwise. The statute was also modified to provide that the court could, upon the request of either party, identify the source from which the support obligation will be paid. This statutory provision is a direct result of the Court of Appeals decision in Wright v. Wright, Record Nos. 0947-12-2, 0958-12-2, Decided February 19, 2013. In Wright, the husband was ordered to pay a significant amount of temporary spousal support. Husband paid the spousal support and his living expense from a marital account and put his earnings into an account in his name alone. The Court of Appeals held that expending marital funds instead of his income to pay the ordered support and living expenses since those were marital expenditures. Unfortunately for the wife, the husband’s post-separation earnings that he was saving while depleting marital accounts to pay her, were his separate property and not subject to division by the Court. Effective July 1, 2016, such an inequitable result should no longer be possible.

Uniform Child Custody Jurisdiction and Enforcement Act.
House Bill 497 modifies the Act to provide that Virginia continues to have exclusive jurisdiction to modify a child custody order so long as a parent of the child resides in the Commonwealth. Previously, exclusive jurisdiction required that both parents reside in the Commonwealth.

First Offense of Assault and Battery Against a Family Member.
House Bill 1334 modified the statute to require that, if the court places a person on first offender status for assault and battery of a family member, the Court must require the offender to complete education and treatment programs required by the local probation agency and to complete any education or treatment program the court determines is best suited to the needs of the person. Under prior law completion of education or treatment programs was not mandatory.

Possession of Firearms While Subject of Permanent Protective Order.
House Bill 1391 makes it a Class 6 Felony for a person who is the subject of a permanent protective order (entered after a hearing at which the person has the opportunity to present evidence and having a maximum duration of two years), to possess a firearm. The only exception is that the person can possess and transport a firearm during the 24 hours after being served with the order for the purpose of selling or transferring the firearm to another person.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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