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ARTICLE:
Deviations from a 50/50 Split of Marital
Assets in Equitable Distribution
by RONALD
R. TWEEL & ELIZABETH
COUGHTER
Representing a client
in an equitable distribution case presents the practitioner
with many legal and factual problems, not the least of which
is when one can advise a client with some degree of assurance
that the court may distribute all or a particular portion
of the marital assets on an unequal basis. Making such pronouncements
to a client can be risky, but if there is existing case law
to support your proposition, then with the appropriate caveats,
recommendations of unequal division can be made. Further,
knowledge of the case law cited in this article is often critical
during negotiations either to convince the opposing counsel
or to assist him or her to convince the opponent that an unequal
division is likely and/or supported by Virginia case law.
The purpose of this article is to gather in one place the
most significant published and unpublished cases that will
allow the practitioner to have an easy reference, with supporting
rationale, as to when one can either negotiate or litigate
an equitable distribution case with some hope of arriving
at an unequal division of the marital property. We have tried
to set forth these cases into categories so that the reasoning
of the Court of Appeals can be appropriately analyzed and
structured. We will try to discuss in detail the leading cases
for each category and then provide the reader with a brief
summary of other supporting cases. This is intended to provide
a framework for an overview of the logic of the Court of Appeals
and also a research tool for those who do not specialize in
the field of family law.
Before we commence our overview of the law, however, a word
of precaution. We practice primarily in central Virginia and
a particular case in one jurisdiction may well be doomed for
an unequal division of marital property, while it may fair
considerably better in another. The old legal maxim "know
your judge" is more significant in this particular area
of family law (or any area of law) than practically any other.
Our experience has shown us that some judges will not vary
from a 50/50 division regardless of the facts or the law.
Other judges have particular biases about special assets that
most often result in an unequal division of marital property.
Therefore, although we feel that the information contained
in this article is accurate and valuable, knowing the propensities
of your judge is equally, if not more, important.
One final matter before we begin our substantive analysis
- your credibility with the courts and opposing counsel will
be enhanced if one does not always "cry wolf" in
every case, i.e., every case should be an unequal division
in favor of your client because...(fill in the blank!). This
approach does a disservice to those clients who do deserve
an unequal award. Your constant and unbridled passion that
your client always deserves more hinders one's ability to
negotiate an unequal division because of the lack of caution
or discretion when demanding such a division. In other words
"pick your shots" and be firm when you do.
BACKGROUND
Of course, the first place that the experienced practitioner
looks is the statute (amazing how many people fail to do this!).
Not all criteria contained in Va. Code Ann. §20-107.3(E)
are terribly important for the purpose of obtaining a deviation
from a 50/50 division of marital property, but a brief review
of the more pertinent factors seems to be in order. These
criteria are as follows:
1. The contributions, monetary and non-monetary, of each
party to the well?being of the family;
2. The contributions, monetary and non-monetary, of each
party in the acquisition and care and maintenance of such
marital property of the parties; . . . . . . .
5. The circumstances and factors which contributed to the
dissolution of the marriage, specifically including any
ground for divorce under the provisions of subdivisions
(1), (3) or (6) of § 20?91 or § 20?95;
6. How and when specific items of such marital property
were acquired; and . . . .
10. Such other factors as the court deems necessary or appropriate
to consider in order to arrive at a fair and equitable monetary
award.
We are not implying that the other factors may not be decisive
in a particular case, but the ones cited above are the sections
most frequently cited and used in order to arrive at an
unequal division. One should never forego creativity and
imagination when it comes to the practice of law, but this
article is geared to what has been successful to this point
in time with trial courts and our Court of Appeals.
By way of summary, we will set forth the basic areas where
an unequal division has been successful and the remainder
of this article will expound on these areas:
1. Division of pensions;
2. Division of marital residences;
3. Division of closely held businesses;
4. Divorce based upon fault or negative contributions to
well-being of family; and
5. Untraceable separate property of a spouse.
GENERAL PRINCIPLES
It is quite clear in Virginia that there is no statutory
presumption of an equal distribution of the marital assets
of the spouses in a divorce. Papuchis v. Papuchis, 2 Va. App.
130, 341 S.E.2d 829 (1986). In Papuchis, the wife was granted
a monetary award that was less than 50% of the value of the
marital property. The issue raised on appeal by the wife was
that Virginia should adopt a presumption that an equal division
of marital property is equitable. The Court of Appeals in
that case clearly held that the General Assembly had not adopted
a statutory presumption of equal distribution and went on
to find that such a presumption "would undermine the
legislature's recognition of 'marriage as a partnership to
which each party, contributes, albeit not always equally,
to the well being of the family unit'". Id. at 132.
Two years later, the Court of Appeals softened its position
somewhat in Pommerenke v. Pommerenke, 7 Va. App. 241, 372
S.E.2d 630 (1988). In Pommerenke the wife had committed adultery
and the marital assets were divided 50/50 with the notable
exception that the equity in the marital home which was jointly
owned was primarily awarded to Mr. Pommerenke who contributed
a large sum of his premarital savings to the down payment.
The wife had argued that she was being punished for her adultery
when she was not awarded a larger share of the marital home.
The Court of Appeals, however, found that "in the context
of a marital partnership, an initial assumption of equality
is reasonable" in establishing the beginning point for
an equitable distribution award. Id. at 250. The trial court
was affirmed on appeal in making its equal division of the
marital property with the exception of the marital home division,
which the Court of Appeals found to be well within the sound
discretion of the trial court.
In Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432 (1991),
the Court of Appeals affirmed its opinions of Papuchis and
Pommerenke, but held that an assumption of equality in dividing
marital assets does not rise to the level of a presumption,
and once again confirmed that equitable distribution does
not mean equal distribution. Id. at 663. In Marion, the husband
owned a veterinarian practice and had engaged in an adulterous
affair with his sister-in-law. The wife contended that under
circumstances where the husband had contributed only financially
to the family and not otherwise during the latter part of
their marriage, she should have been awarded more than 50%
of the marital assets. The Court of Appeals held that adultery
and other reasons for the dissolution of the marriage is only
one of several factors that the court must consider when balancing
the equities of the parties in fashioning an equitable distribution
award. "Circumstances that lead to the dissolution of
the marriage, but have no effect upon marital property or
its value are not relevant to determining a monetary award
and need not be considered." Id. at 664.
The Court of Appeals has also ruled that it is appropriate
to consider the parties' unequal contributions towards the
acquisition of any individual marital asset. Artis v. Artis,
10 Va. App. 356, 362, 392 S.E.2d 504, 507 (1990). In Artis,
the trial court awarded 15% of the husband's military pension
to the wife. The parties had stipulated that they had contributed
equally to the acquisition of marital property. On appeal,
the appellate court ruled that on remand, the trial court
must state its reasons in the record for an unequal division
of the husband's pension giving appropriate consideration
to the parties' stipulation of their equal contribution to
the acquisition of marital property.
There are a multitude of cases which confirm that the courts
of Virginia do not have to specify the weight given to any
specific statutory factor in making an equitable distribution
award and which confirm that the trial court has broad discretion
in fashioning such an award. Swisher, Virginia Family Law
(2nd Ed. 1997) §11-28, n.1. Most cases do favor the wage
earner in the award of a pension. Swisher, Virginia Family
Law (2nd Ed. 1997) §11-28 n.7. There is also a multitude
of cases regarding the unequal division of the marital residence.
Swisher, Virginia Family Law (2nd Ed. 1997) §11-28 n.8.
PENSIONS
The cases are legion in Virginia where the trial courts
have varied considerably from an equal split of a pension.
There are even cases where the trial court has completely
denied the non-participant spouse any of the pension benefits.
Many of the cases have divided the pension on a 75/25 basis
while others have divided it on a 60/40 basis. There are many
common themes running through these cases that do not divide
the pension on an equal basis.
It must be remembered that the statutory language does not
mandate a division, but states specifically that the trial
court "may direct payment of a percentage of the marital
share of any pension. . . or retirement benefits. . ."
(Emphasis added). Va. Code Ann. §20-107.3(G). The Court
in Brunelle v. Brunelle, 1995 Va. App. LEXIS 49, considered
all the statutory factors and decided that the wife was not
obligated to have any portion of her pension awarded to the
husband. See also, Rose v. Rose, 1994 Va. App. LEXIS 741,
wherein the wife received none of the husband's pension with
the Court recognizing that retirement and pension plans, by
their nature and diversity, present unique problems in a division
of marital wealth, and the task of the trial court in making
an equitable distribution of such benefit is not an easy one,
citing Banagan v. Banagan, 17 Va. App. 321, 437 S.E.2d 229
(1993). Both of these cases clearly show that the Court of
Appeals will uphold decisions by the trial court that it is
permissible not to award any of the retirement benefits to
the non-participant spouse if all of the factors under Va.
Code Ann. §20-107.3(E) have been considered.
One of the primary themes running through the series of
published and unpublished cases from our Court of Appeals
is that the pension recipient received considerably more than
50% of the pension because of the vast disparity in the financial
contributions to the well-being of the family and to the specific
pension in question. Zipf v. Zipf, 8 Va. App. 387, 382 S.E.2d
263 (1989). Mr. Zipf had attended the Naval Academy and graduated
prior to the marriage. In discussing the wife's contribution
to the husband's naval career, the Zipf Court noted that the
husband had completed four years of the Naval Academy before
the couple's marriage as a significant factor. The trial court
further found that the wife was not left alone with the family
and did not have to move from various places because of her
husband's career. The trial judge further determined that
they had lived together throughout at least 90% of the marriage
and had shared the family responsibilities. Finally, the Court
said that the husband's completion of his educational training
at the Naval Academy was a primary factor which established
the marital standard of living rather than the non-monetary
contributions of the wife in order to support its 75/25% division
of the military pension.
There are several published and unpublished opinions from
the Court of Appeals which further this line of reasoning
about an unequal division of pensions resulting from one spouse
making a substantial amount of monetary contributions to the
well-being of the family and the acquisition of the pension
or retirement plan.
1. Sawyer v. Sawyer, 1 Va. App. 75, 335 S.E.2d 277 (1985)
(61/39 division);
2. McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E.2d
535 (1986) (60/40 division);
3. Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18 (1987)
(66/34 division);
4. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988) (80/20
division);
5. Seehorn v. Seehorn, 7 Va. App. 735, 375 S.E.2d 7 (1988)
(60/40 division);
6. Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387 (1988)
(60/40 division);
7. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (60/40
split when almost all of the financial contributions of
the marriage had been made by the husband);
8. McDavid v. McDavid, 19 Va. App. 406, 451 S.E.2d 713 (1995)
(60/40 division);
9. Snyder v. Snyder, 1995 Va. App. LEXIS 523 (wife awarded
30% of the husband's state government pension in light of
the husband's substantial monetary contributions to the
marriage);
10. Ferris v. Ferris, 1996 Va. App. LEXIS 166. (wife awarded
absolutely nothing from the husband's 401(k) retirement
when husband had made most of the money for the family during
the marriage and made contributions to the marriage of some
of his separate property);
11. Hendrick v. Hendrick, 1996 Va. App. LEXIS 181. (the
court divided the pension on a 62/38 basis to husband who
was already retired and had shorter life expectancy); and
12. Brumskill v. Brumskill, 1997 Va. App. LEXIS 511. (the
75/25 division supported by facts held that all of the pension
had come from the husband; husband had commuted over 100
miles to work for a long period of time, and it was a long
term marriage of more than 25 years).
Recent cases that have followed the trends noted above include
Asgari v. Asgari, 2000 Va. App. LEXIS 637, which approved
the unequal division of a pension asset. An unequal award
of the husband's disability retirement was affirmed on appeal.
The parties had been married 13 years and both were gainfully
employed and financially independent at the time of the marriage.
All of their earnings were jointly deposited into joint accounts.
At trial, the marital residence was split 50/50. However,
the wife was awarded only 40% of the husband's disability
retirement. The disability constituted a retirement benefit
and had been earned by the husband during the term of the
marriage. The disproportionate share was apparently proper
due to the fact that the husband was the wage earner who accumulated
the pension.
A similar rationale appears in Beck v. Beck, Ct. App. No.
1082-99-2, unpublished, September 19, 2000. The trial court
was affirmed on appeal in making unequal divisions of the
pension and the marital residence based upon the unequal separate
contributions of the parties. This marriage was short-term
(6 years) with two young children. The husband had been accused
of adultery. Two-thirds of the marital assets were awarded
to wife and one-third to the husband. Wife also was able to
establish that she contributed 71.3% from her separate funds
to the acquisition of the marital residence, while husband
contributed 18.2%. Each of the parties had 401(k) plans which
were marital by characterization and each party was allowed
to retain their own retirement plans with the husband's being
roughly twice as large as the wife's. The Court of Appeals
determined that the trial court properly determined that the
individual efforts in accumulating the pensions justified
the parties receiving the major portion of their own respective
pensions. The equitable distribution award was affirmed on
appeal, while the spousal support award was reversed and remanded.
It is apparent from a review of these cases that have considered
the division of a pension that the court will generally and
most often award a greater share of the pension to the wage
earner in whose name the pension had accrued. The factor,
which is the predominant one for consideration in the division
of pensions, is the non-monetary contributions of the wage
earner.
DIVISION OF MARITAL RESIDENCES
Another factor that enhances a spouse's equitable distribution
award is successful tracing of separate assets into the acquisition
of marital property. Successful tracing of a down payment
for the purchase of a marital residence which is characterized
as a marital asset, may result in an unequal award of that
asset. Rowe v. Rowe, 24 Va. App. 123, 480 S.E.2d 760 (1997);
Holden v. Holden, 31 Va. App. 24, 520 S.E.2d 842 (1999); Pembelton
v. Pembelton, 1996 Va. App. LEXIS 771.
Another factor that will result in the unequal division
of a marital residence is the success or failure of one party
to meet his or her burden of proof in proving the contribution
of marital property or significant personal efforts to the
increase in value of a separate asset. In Martin v. Martin,
27 Va. App. 745, 501 S.E.2d 450 (1998), the wife was unable
to prove that her business acumen in selecting the marital
residence, which was purchased primarily with husband's separate
assets, and her efforts at painting, wallpapering and carpet
installation in the residence were significant personal efforts
resulting in a substantial increase in the home's value, which
increase should be considered marital. The majority of that
asset was awarded to the husband because he successfully retraced
his separate financial investment in the property.
Similar arguments prevailed in the cases below which resulted
in the unequal division of the marital residence.
1. Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866 (1990)
(100% of the marital residence awarded to wife upon evidence
of the wife's family making gifts to the couple and the
wife having extraordinary medical bills and expenses);
2. Amburn v. Amburn, 13 Va. App. 661, 414 S.E.2d 847 (1992)
(husband awarded 60% when separate funds were utilized in
the purchase of the marital residence);
3. Crummett v. Crummett, 1994 Va. App. LEXIS 704 (60% of
the residence awarded to the husband when in light of wife's
less than good faith efforts to market the house for sale);
4. Rose v. Rose, 1994 Va. App. LEXIS 741 (60% of the residence
awarded to the husband after consideration of all the statutory
factors);
5. Earl v. Earl, 1995 Va. App. LEXIS 690 (84% of the marital
assets awarded to the husband who renovated the home and
made greater monetary and non-monetary contributions while
the wife deserted the marriage);
6. Nigh v. Nigh, 1995 Va. App. LEXIS 830 (100% of the marital
residence awarded to wife when husband exposed family to
constant borrowing and created a drain against the equity);
7. Gerwe v. Gerwe, 1996 Va. App. LEXIS 21 (100% of the marital
residence awarded to wife when husband deserted the marriage);
8. Ferris v. Ferris, 1996 Va. App. LEXIS 166 (80/20 division
in favor of husband of marital assets based upon husband's
97% financial contributions and 61% of his non-monetary
contributions);
9. von Raab v. von Raab, 26 Va. App. 239, 494 S.E.2d 156
(1997) (husband failed to properly trace his premarital
equity in the property or his post-separation reduction
in the principal of the mortgage, so award to wife of one-half
of the property was affirmed on appeal); 10. Maxey v. Maxey,
1997 Va. App. LEXIS 629 (the non-title owner wife was awarded
a 35% share of husband's separate real estate and a 20%
share of husband's second parcel of real estate when husband
failed to trace his separate interest and wife was able
to successfully evidence her considerable non-monetary contributions
to this "stormy marriage").
When the courts are considering the division of the equity
in a marital residence, the factor that is most often considered
is once again the successful tracing of greater monetary and/or
non-monetary contributions to the acquisition or enhanced
value of the family home. The prevailing spouse who wishes
to obtain a greater share of this equity will have to meet
his or her burden of proof with documentation and corroborating
evidence to confirm the greater financial contributions and/or
greater personal efforts and labor.
DIVISION OF CLOSELY HELD BUSINESS
One factor that has been considered repeatedly by the courts
is the unequal efforts expended by one party towards the acquisition
of a family business. In Marion v. Marion, 11 Va. App. 659,
401 S.E.2d 432 (1991) (discussed earlier), the husband veterinarian
was awarded a larger share of his veterinary practice than
the wife based on the fact that the veterinary practice grew
in value solely due to the skill and energy invested in the
practice by the husband.
An important case in which the husband was awarded 56.5%
of the family business after unsuccessfully arguing that he
should have been awarded a greater share is the Matthews decision.
Mrs. Matthews had argued that she should have been awarded
an equal share of the family business even though she had
diminished her role in the business after the parties' children
were born. The trial court in that case was persuaded by her
argument that the parties had agreed to treat their assets
as the fruits of their joint efforts in awarding her a very
large share of this lucrative business enterprise.
The parties' "notion of marriage" and joint titling
of their properties was an appropriate factor for the Court
to consider in awarding the wife $22.1 million dollars of
a $50.7 million marital estate, despite the greater contributions
to the family business by the husband. In Matthews v. Matthews,
26 Va. App. 638, 496 S.E.2d 126 (1998), the husband had developed
a certain statistical approach to commodities trading with
several business partners that was wildly successful. The
trial court had noted that the husband had made greater monetary
contributions during the second half of the marriage while
the wife had made substantial contributions to the family
business in the first half of the marriage, as well as, making
the greater non-monetary contributions throughout the entire
marriage. The husband had unsuccessfully argued that the court
could not consider the parties' "notion of marriage"
nor the joint titling of their assets in fashioning its equitable
distribution award. The trial court had found that the evidence
supported the view that the parties' "notion of marriage"
was an equal sharing of the fruits of their labor regardless
of which spouse had generated their family income and properly
refused to grant a greater share of the marital estate to
the husband.
Finally, in Brown v. Brown, 1996 Va. App. LEXIS 78, the wife
was awarded 55.9% of the marital estate when the husband had
inherited an original business and formed a new business during
the marriage, which was marital, from that inherited entity.
Therefore, the proponent for an unequal and greater award
of a family business will succeed if there is proof of greater
efforts made by the proponent in actually creating and pursuing
the business enterprise. This unequal award is particularly
true when the other non-employee spouse is active at home
or in other efforts and has little to do with the business
enterprise.
DIVORCE ALLEGING FAULT GROUNDS
WITHOUT ADEQUATE PROOF OF FAULT
Fault grounds appear most often to be an implied factor
for consideration. The leading case regarding fault, which
is generally adultery, is O'Loughlin v. O'Loughlin, 20 Va.
App. 522, 458 S.E.2d 323 (1995). The wife was awarded 60%
of the marital estate in that case upon a finding by the trial
court that a husband who was guilty of adultery had made negative
non-monetary contributions towards the well-being of the family.
See, Va. Code Ann. §20-107.3(E)(1). The Court of Appeals
found that the trial court did not use the adultery to punish
the husband. Rather, the trial court properly found that the
husband had spent over $10,000.00 on his paramour, but specifically
stated that it did not consider those expenses a factor due
to insufficient evidence to support a finding of dissipation
of the marital estate. Rather, the trial court found that
the husband's infidelity had a negative impact on the well-being
of the family. The wife had worked outside the home and made
nearly 100% of the non-monetary contributions to the marital
partnership. The husband's unfaithfulness hindered the wife's
efforts to contribute to the partnership in a non-monetary
fashion. O'Loughlin relied heavily on Aster v. Gross, 7 Va.
App. 1, 371 S.E.2d 833 (1988) which held that the reasons
for the dissolution of the marriage, Va. Code Ann. §20-107.3(E)(5),
were irrelevant unless they had an economic impact.
Fault factors are often disguised by the focus of non-monetary
factors. In Alphin v. Alphin, 15 Va. App. 395, 424 S.E.2d
572 (1992), the wife was awarded the majority and greater
share of the marital assets. The wife's actions in facilitating
her husband's career and selecting the family's homes during
the course of the 18 year marriage were the primary factors
relied upon in awarding her the larger share of the marital
assets. The husband argued that the award was overly generous
and based on sympathy rather than proper consideration of
all of the equitable distribution factors. The Court of Appeals
relied upon the credible evidence regarding the wife's contributions
to the marital assets, including "the prudent selections
of the various residences and the associated sacrifices of
moving from place to place to facilitate her husband's career
advancement". Id. at 404. The wife in that case had been
the primary homemaker while the husband had been the primary
wage earner. The wife had a high school education, a spotty
employment record, and "significant mental health problems".
Id. at 399. Wife's attempt to amend her grounds of divorce
on grounds of adultery was denied.
The courts are not always clear in stating that fault is
a factor. In Broom v. Broom, 15 Va. App. 497, 425 S.E.2d 90
(1992), the trial court divided equally the $1 million in
equity in the marital residence and further awarded the wife
a monetary award of $100,000.00. The husband had argued that
the trial court had failed to consider equally the contributions
of both parties to the marriage. In that case, the husband
was the primary wage earner while the wife raised the children.
At the time of the hearing the wife had been employed as a
banquet manager at a modest income. The parties had been married
16 years and the husband had admitted that he was guilty of
desertion. He sought to be reimbursed $319,000.00, a sum that
he had contributed above and beyond his employment earnings.
On appeal, the trial court was affirmed and held to have properly
considered husband's greater financial contributions. All
else being equal, was husband's admission of desertion the
overriding factor? The opinion does not state so.
Although fault may have no demonstrable effect on the value
of the marital estate, fault remains a statutory factor to
be considered. In Cornett v. Cornett, 1994 Va. App. LEXIS
679 (1994), the wife was found guilty of desertion. She had
argued on appeal that the uneven distribution of the marital
assets demonstrated an improper reliance by the trial court
on the finding of her marital fault. The Court of Appeals
found that "nothing in the record suggests that the issue
of fault was considered to be an economic factor, only that
it was considered as required by the statute." (Original
emphasis) Id. There is no indication in this unpublished decision
as to how disparate the award was. One, however, can read
between the lines of the opinion as to the reason for the
disparity.
Finally, in a most recent case, fault appears to be an implied
factor in Skeens v. Skeens, Ct. App. No. 1035-00-2, unpublished,
October 3, 2000. The trial court was affirmed on appeal in
finding that the wife had made 60% of the non-monetary contributions
to the marriage, while the husband had made 40%. The parties
had made equal monetary contributions during the term of their
35 year marriage, and 55% of the marital assets were awarded
to the wife. This case may have been decided in favor of the
wife due to her greater share of the non-monetary contributions
and the husband's willful desertion. See also, Barnes v. Barnes,
16 Va. App. 98 (1993) (wife guilty of adultery and awarded
5% of business interest and 35% of marital residence).
In conclusion, it appears that although not always stated
as a factor, fault is an arrow not to be left out of one's
quiver when aiming for an unequal distribution of marital
assets. Despite the fact that the misbehavior of a spouse
may have had little or no economic impact, it remains a factor
that is not to be ignored.
UNSUCCESSFUL TRACING OF SEPARATE PROPERTY
The attempt to trace separate contributions to a marital
asset may succeed in an unequal award, even though the burden
of proving the "separate" nature was insufficient.
In Blanding v. Blanding, 1999 Va. App. LEXIS 167, the wife
was awarded 69% of a brokerage account (31% to the husband).
The wife was not able to successfully prove that the brokerage
account was her separate asset so the court found it to be
marital property. The court, however, clearly considered the
wife's separate contributions to the account since it awarded
her the greater portion of this marital asset.
The failure to trace the contribution of marital assets
toward the acquisition of a separate asset resulted in an
unequal division of the husband's separate business enterprise.
In Kelley v. Kelley, 2000 Va. App. LEXIS 576, the wife was
awarded $9,600.00 less of the marital assets as she was unable
to provide sufficient evidence to prove that the separate
business asset increased in value by a contribution of marital
assets. The hybrid separate property included improvements
to the real property of the husband's separate business.
Finally, don't get greedy. A request for too disproportionate
an award may result in a reversal on appeal. A spouse's free
spending lifestyle does not warrant a disproportionate award.
This issue is illustrated in Clark v. Clark, 2000 Va. App.
LEXIS 469 where the trial court was reversed on appeal for
awarding 85% of the marital estate to the wife when the only
factor cited by the trial court was the fact that the monetary
contributions of both parties were nearly equal. The trial
court failed to give any explanation for the disproportionate
division of assets. The Court of Appeals disputed the commissioner's
finding that the monetary contributions of the parties to
the well-being of the family was nearly equal. This 26 year
marriage began with the wife's salary being equal to the husband's.
By the end of the marriage, however, the parties' incomes
were clearly disproportionate. It was inappropriate for the
commissioner to consider that the husband spent his money
excessively on personal items, such as clothes and expensive
automobiles. This conduct did not explain nor justify a disproportionate
division of the assets. See also, McKeel v. McKeel, 1998 Va.
App. LEXIS 215 (award of 86% of marital estate reversed on
appeal when trial court failed to justify such an unequal
division.)
Therefore, it is helpful to always put on your evidence
of separate assets or contributions, no matter how meager.
Do not, however, ask for too much of the pie. It may be too
large for the Court of Appeals to swallow.
CONCLUSION
There is no certainty as to which factors weigh most in
fashioning an equitable distribution award. Most clearly,
a wage earner is likely to be awarded the greater share of
his or her pension. A spouse who can trace separate assets
spent in the acquisition of the marital residence or other
asset often will be credited such sums. The spouse who creates
a successful business enterprise may acquire a greater share
of it. Fault appears still to have an impact that is often
not specified as a factor. Whatever the factor, the trial
court retains broad discretion to fashion an unequal award,
provided some basis for the unequal distribution is stated
in the court's opinion.
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