Charlottesville Divorce Lawyer Rob Hagy

Trial Court Correctly Picked The Much Earlier Separation Date-Intent to Separate Doesn't Have To Be Continuous.

In the case of Lisann v. Lisann, the Virginia Court of Appeals, in a published opinion, upheld the trial court's determination that the parties separated on July 14, 2014, and that the trail court correctly relied on that separation date when making its equitable distribution award. Husband contended that the trial court erred in finding that the parties’ separation date was in July 2014 rather than December 2018—the date on which husband contends that he intended the separation to be permanent. This dispute about the separation date matters because it impacts the trial court’s equitable distribution and spousal support determinations.

Husband argued that wife’s conciliatory statements and activities subsequent to July 14, 2014, show that wife did not
continuously maintain the intent to permanently separate after that date. Husband further contends that the trial court erred in relying on the July 2014 separation date when determining its equitable distribution award and spousal support award. Addressing husband’s argument requires this Court to resolve an issue of first impression in Virginia: whether a party who
intends to separate permanently at the commencement of the statutory separation period for a no-fault divorce must—to preserve the separation date—continuously maintain the intent to separate permanently throughout the separation period. 

As a matter of first impression, the Virginia Court of Appeals held that a party seeking a no‑fault divorce under Code § 20-91(A)(9) is not required to show that either party continuously maintained, throughout the statutory period, an intent to separate permanently. The statutory intent requirement under Code § 20-91(A)(9) is satisfied when, at the commencement of the statutory separation period, a party has the intent to separate permanently. Therefore, the trial court did not err in finding that the parties’ separation date was July 14, 2014, and not December of 2018.

If you have questions about your separation, please contact our office at (434) 293-4562.

Charlottesville Divorce and Equitable Distribution Lawyer: Court's Equitable Distribution Award Reversed.

In the case of Hughes v. Hughes, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court erred and reversed the trial court's equitable distribution award and remanded the case for the trial court to reconsider the equitable distribution of the parties’ property and debt.  Wife was granted a divorce from husband in 2010. When the parties separated, they had significant joint debts, in the form of mortgages and a home equity line of credit (HELOC), encumbering the marital residence. Much of the debt was used to finance a business run by both parties during the marriage. Husband continues to operate this business. Shortly after the divorce proceedings began, and before the trial court addressed equitable distribution, husband filed for bankruptcy. Pursuant to 11 U.S.C. § 362, the court stayed the equitable distribution hearing during the bankruptcy proceedings. In bankruptcy, husband discharged his obligations to the creditors who held the mortgage and home equity line, leaving wife solely responsible for the entire obligation to their third-party creditors. After a hearing on equitable distribution, the trial court granted wife the marital residence and granted husband possession and control of the business. In granting wife the marital residence, the trial court noted that it “has no value in excess of the liens currently against it,” i.e., the marital residence had a negative equity. The trial court stated that the negative equity was in the amount of $100,000 to $150,000. However, when the trial court specifically turned to the issue of debt, it apportioned only two credit card debts. The trial court properly classified the marital residence as marital property and properly valued the marital residence. However, the trial court failed to properly account for or apportion the mortgage loan or the HELOC. Further, it failed to take into account the negative equity in the marital residence in arriving at its equitable distribution award. “[T]o the extent that a valid indebtedness which is secured creates an encumbrance on the legal title, that indebtedness must be considered by the trial court in determining the value of the marital property for purposes of determining the amount of the monetary award.” Trivett v. Trivett, 7 Va. App. 148, 151, 371 S.E.2d 560, 562 (1988). At the time of the equitable distribution award, the marital residence was encumbered by the mortgage and HELOC. The trial court failed to consider these encumbrances in determining the value of the marital property and the apportionment of marital debt. Therefore, the trial court misapplied the statutory mandate contained in Code § 20-107.3 and, in doing so, abused its discretion.

-Rob Hagy, Charlottesville Divorce and Equitable Distribution Lawyer.  For help with your property or debt distribution issues, please contact me at (434)293-4562 or email me at [email protected].

 

Charlottesville Divorce Lawyer Rob Hagy: Trial Court Could Not Consider Husband's Separate Retirement Accounts In Awarding Wife All of Marital Retirement Accounts.

In the case of Wiencko v. Takayama, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in considering husband’s separate property retirement accounts in awarding wife the totality of marital retirement accounts.  However, the Virginia Court of Appeals determined that the trial court did not err in its custody determination, in considering report of guardian ad litem or imposing certain travel restrictions on the wife.

-Rob Hagy, Charlottesville Divorce Lawyer.  For help with issues like these, please call me at (434)293-4562 or email me at [email protected]

Charlottesville Divorce Lawyer Rob Hagy: Divorce for Physicians.

Great article today from medscape.com on divorce and medical practices.

-Rob Hagy, Charlottesville Divorce Lawyer.

Charlottesville Divorce Lawyer: Frequent Flyer Miles Can Be Distributed In A Divorce.

In my effort to stay as knowledgeable as I can about developments in the area of divorce law, I came across a great article by Jeff Landers, who writes for Forbes magazine, on air miles, also known as airline miles or frequent flyer miles in divorce.  Air miles, airline miles or frequent flyer miles can be divided in Virginia divorces as well as indicated by the cases of Blanco v. Blanco, 19 Cir. 156481 (1999), Fletcher v. Fletcher, 19 Cir. C180321 (2004), VanWormer v. VanWormer, 19 Cir. C186493 (2005).  For help with property or equitable distribution issues like this or other property or equitable distribution issues, please contact me at (434)293-4562 or email me at [email protected].  For more information, visit me at www.charlottesvilledivorceattorney.com or on facebook at Charlottesville Divorce Lawyer. 

Charlottesville Divorce Lawyer: 55% Equitable Distribution Award to Wife Upheld.

In the case of Crater v. Crater, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court property divided the parties' marital property by awarding 55% of the equitable distribution award to the Wife and 45% of the award to the Husband. 

-Rob Hagy, Charlottesville Divorce Lawyer.

 

One-Half Interest in Inherited Real Estate Is Separate Not Marital Property.

In the case of Layman v. Layman, the Virginia Court of Appeals ruled that the trial court erred in classifying as marital property the one-half interest in real estate appellant inherited during the marriage where using separate property to secure a loan which is used for marital purposes and is subsequently repaid in full using marital funds does not transmute the pledged property into marital property.

-Rob Hagy, Charlottesville Divorce Lawyer.  For help with property distribution or other divorce issues, please contact me at 434.293.4562 or email me at [email protected].

 

Husband's Business Interests Properly Valued As "Zero".

In the case of Patel v. Patel, the Virginia Court of Appeals, in a published opinion, upheld a trial court's decision that husband's interests in various companies should be valued at "zero" instead of giving the interests a negative value even though the companies' debts exceeded their assets at the time of trial.  Just because the companies' debts exceeded their assets at a given point in time did not mean that the companies had a negative value or that the companies were incapable of generating profits or that they did not have a positive cash flow capable of paying off any debt, but, instead, it merely showed that at the time of the valuation the companies had more debt than assets.

-Rob Hagy, Charlottesville Divorce Lawyer.  For help, please call me at (434)293-4562 or email me at [email protected] 

Divorce Did You Know Edition #2.

Did you know that after you separate from your spouse you may be able to use marital funds to pay normal expenses (such as attorneys fees and living expenses) even though you may be making enough money as separate funds to pay the expenses?  That is what the Virginia Court of Appeals recently determined in the case of Wright v. Wright in February of this year.

-Rob Hagy, Charlottesville Divorce Lawyer.  For help determining whether you could do the same thing, please call me at 434.293.4562 or email me at [email protected]. 

Pet Custody Battles Can Be Expensive.

ABCNews.com reports that a New York man has spent $60,000.00 litigating the issue of whether he or his ex-girlfriend will get custody of a dog. In Virginia, couples do occasionally fight over family pets.  In general, family pets are treated as property and the cases are decided pursuant to the Virginia equitable distribution statute.  As of today, there are at least five case from the Virginia Court of Appeals or the Virginia circuit courts deciding the issue.

-Rob Hagy, Virginia and Charlottesville Pet Custody Attorney

Call me if I can help you with this or any of your other divorce needs at (434)293-4562.

Among Other Errors, The Trial Court Fails to Follow Requirements of the UCCJEA.

In the case of Prizzia v. Prizzia, the Virginia Court of Appeals, in a published opinion, ruled that the trial court made a number of errors.  First, the trial court failed to follow the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act.  Instead of finding that a court in Hungary had jurisdiction to decide the parties' custody and visitation dispute, the trial court should have exercised jurisdiction.  It was the home state of the child and, thus, had jurisdiction to make this decision, the initial custody determination. 

And, even if the trial court was going to defer jurisdiction on the grounds that Virginia was an inconvenient forum, it failed to follow the requirements of the inconvenient forum statute.  In order for a trial court to decline to exercise jurisdiction, it must specifically determine two things: (1) "that it is an inconvenient forum under the circumstances," and (2) "that a court of another state is a more appropriate forum."  Furthermore, in "consider[ing] whether it is appropriate for a court of another state to exercise jurisdiction," the trial court must both "allow the parties to present evidence" and "consider all relevant factors, including those listed in the statute. 

Here, the trial court failed to do what the statute requires. The trial court made no specific determination that Virginia was an inconvenient forum under the circumstances or that the Hungarian court was a more appropriate forum. Moreover, the trial court did not allow the parties to present all relevant evidence, as husband requested, on the issue of whether it was more appropriate for the Hungarian court to exercise jurisdiction.

The trial court could have also declined to exercise jurisdiction on the grounds that the father, who was seeking to invoke Virginia's jurisdiction, was attempting to do so as a result of unjustifiable conduct.  Here, there is no evidence that Virginia had home state jurisdiction because husband had engaged in unjustifiable conduct. The trial court did not make this finding, nor did it base its decision to decline to exercise jurisdiction on the unjustifiable conduct statute.

Lastly, the trial court inexplicably held that the wife’s equitable distribution award be held in escrow until she complied with the Hungarian court’s visitation order.  The equitable distribution statute simply does not confer the authority to impose this condition upon an equitable distribution award.