Are you having a divorce? Are your relations with your spouse not good enough to keep the marital relation? If you are looking for a divorce, then you should know the law. It is not easy to get a divorce in Virginia. Well, it is easy, but it involves a lot of things which you may not understand. There are many issues which arise after getting a divorce. In Virginia, it is not just signing a piece of paper; it is more than that. To have a divorce you and your spouse have to be separate for at least one year or six months before you can file a divorce. It means that you must have grounds, i.e., solid reasons for getting a divorce in Virginia. Without solid reason, you cannot get a divorce. These solids reasons and grounds can be adultery by the partner, felony, or domestic violence, etc. You should know that you cannot get a divorce in Virginia if you and your spouse both agree to be separate for six months or not have children. Also, if you are filing a divorce, you should be a resident of Virginia for the past six months or more. There are so many things which you should know before getting a divorce and also after the divorce. To handle a divorce case you should always take help from a reliable Arlington Virginia Divorce lawyer. You should know all the rules and regulations about the device. The best way to know these rules is to hire a lawyer who can explain these rules to you. It is how you will also win the case in the court.
So, the question is why you would need a lawyer for getting a divorce? When you decide that you need to be separate, there will be so many issues. In many cases, the spouses fight over child custody, property, etc. It is not easy to solve these issues without a lawyer. For example, who gets the property after the divorce? Who gets the appliances or the vehicles after divorce? What happens after retirement? Who will pay the debts after divorce? Who gets the child custody? Who will pay for child support? There are so many other issues which will arise if you decide to get a divorce. You need to resolve these issues with your spouse before you get a divorce. Of course, you cannot do it on your own. You will need help from an expert Arlington Virginia, a divorce lawyer. These divorce lawyers have experience in dealing with such cases. They know all the paperwork and also how to deal with the partner’s lawyers. It is why you need a divorce lawyer. Do not just ask for any lawyer. Hiring a divorce lawyer will solve your problems.
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“A. …from the bond of matrimony may be decreed:
(1) For adultery; or for sodomy or buggery committed outside the marriage;”
Click on above link to read more.
“…. for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act. Click on above link to read more.”
“….from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.”
The following is a case that is illustrative of a case:
Mr. McNicholas seeks a “D” on the grounds of adultery. In his bill of complaint he alleges that Ms. McNicholas committed acts of adultery since at least July 2002. In her answer Ms. McNicholas admits that she began an adulterous relationship with Jonathan Andrew Bergel in October 2002. She also admitted that the parties have not shared the same bedroom since September 2002 and that Mr. McNicholas has not voluntarily lived with her as husband and wife after he learned of the adulterous acts. The bill of complaint does not allege specifically that the parties separated in September 2002 or at the time when Mr. McNicholas learned of the adultery.
At trial Mr. Bergel testified that he began a sexual relationship with Ms. McNicholas sometime in the summer of 2002 — before September 2002, and that it continued into 2003.
Ms. McNicholas testified that her sexual relationship with Mr. Bergel did not begin until October 2002 after the parties separated in September 2002.
The evidence is clear and convincing (and duly corroborated) that Ms. McNicholas committed adultery with Mr. Bergel starting in October 2002 and continuing into 2003. It is clear that the latest that Mr. McNicholas could have learned of the adultery was in December 2002 when he got the report from his private investigator about Ms. McNicholas’ trip to Massanutten with Mr. Bergel. Mr. McNicholas did not condone the adultery and did not live with Ms. McNicholas as husband and wife after December 2002.
At trial Mr. McNicholas took the position that the parties did not separate until December 2002. He testified that he did not form the intent to separate until December 2002 when he learned of the Massanutten trip. Ms. McNicholas asserted that the parties separated in September 2002. It is uncontradicted that the parties lived under the same roof until January 15, 2004, when Ms. McNicholas left the martial residence.
I find that the parties separated in September 2002 when Ms. McNicholas moved out of the marital bedroom and refused to have any further sexual relations with Mr. McNicholas. At that time she was heavily involved with Mr. Bergel. She was seeing him frequently and purchasing gifts for him. She testified that she had the intent to end the marriage in September 2002.
In late September or early October 2002 Mr. McNicholas removed Ms. McNicholas’ name from their joint accounts and closed most of the credit cards she was using. He cut her off from most finances. Mr. McNicholas moved his office to the marital residence. He asked his mother to come and stay at the marital residence in early October. She arrived on October 13, 2002. She testified that the parties were living separate and apart when she came to the marital residence. The parties last had sexual relations in late September 2002.
Whether the adultery occurred before or after the parties separated is irrelevant as to the “D”. Post-separation adultery can give the other party grounds for “D” based upon such adultery regardless of who caused the separation. See, e.g., Robertson v. Robertson, 215 Va. 425, 211 S.E.2d 41 (1975); Surbey v. Surbey, 5 v. App. 119, 360 S.E.2d 873, 4 v. Law Rep. 702 (1987).
Here it is clear that the parties have been living separate and apart without cohabitation and without interruption for more than one year even though they lived under the same roof until January 15, 2004. For more than a year Mr. McNicholas lived under the same roof with Ms. McNicholas allowing Ms. McNicholas to care for their two children and the household despite learning of her adulterous acts.
Even though Mr. McNicholas has presented evidence sufficient to support his allegation of adultery by Ms. McNicholas, I am not compelled “to give precedence to one proven ground of “D” over another.” Sargent v. Sargent, 20 v. App. 694, 707, 460 S.E.2d 596, 12 v. Law Rep. 89 (1995) (quoting Robertson, 215 v. at 426). Where multiple grounds of “D” exist, a trial judge can use sound discretion to select the grounds upon which to grant the “D”.
I think that this marriage was headed for failure before Ms. McNicholas became involved with Mr. Bergel in the summer of 2002 regardless of the nature of their involvement at that time. Even after Mr. McNicholas learned of her adultery, he did not leave the marital residence or take steps to attempt to have her removed despite his significant financial resources. He continued to allow Ms. McNicholas to be with and to care for their children despite his knowledge of the adultery, the children’s exposure to Mr. Bergel as his wife’s paramour, and the fact that Ms. McNicholas may have left the children unattended so that she could be with Mr. Bergel.
While I find that Mr. McNicholas does have a ground for “D” in adultery by Ms. McNicholas, I have difficulty in awarding a “D” based on that adultery when the parties continue to live under the same roof after the adultery became know to the other party. If a husband is not repulsed enough by his wife’s adultery to seek a physical separation after he files a suit for “D” on the grounds of adultery, then I do not think that the marriage should be dissolved because the wife is guilty of adultery (and then brand her with the big “A”).
For the foregoing reasons, I exercise my discretion and Mr. McNicholas is granted a “D” from Ms. McNicholas on the ground of having lived separate and apart without cohabitation and without interruption for one year under v. Code § 20-91(A)(9).
The issue of the adulterous acts of Ms. McNicholas as to equitable distribution and spousal support are discussed later in this opinion letter.
The marital property of the parties is as follows:
Asset Ownership Value
Marital Residence: Joint $ 510,000.00 (average of parties’
43234 Kimberly Anne Court expert appraisers)
Ashburn, Virginia Subject to:
. First deed of trust with
principal balance of $ 266,533.22
as of December 2003
. Second deed of trust with
principal balance of $ 65,013.14
as of December 2003 (* See below)
1998 Infiniti Q45 Automobile Owned by: $ 15,650.00
Mr. McNicholas Subject to loan with principal
balance of $ 17,048.00 in
2002 Kawasaki 22R 1200 Owned by: $ 7,260.00
Motorcycle Mr. McNicholas
Merrill-Lynch Investment Owned by: $ 4,959.97
Account Mr. McNicholas (per statement dated
November 28, 2003)
2002 Federal Income Tax Joint $ 3,681.00
Refund (held in escrow)
2002 Virginia Income Tax Joint $ 1,670.00
Refund (held in escrow)
Nationwide Life Insurance Owned by: $ 8,357.31
Policy on life of Mr. McNicholas (cash value as of
Mr. McNicholas December 26, 2003)
Putnam IRA Owned by: $ 28,260.53
Mr. McNicholas (as of September 30, 2003)
* Counsel for Ms. McNicholas has a lien up to $ 85,000.00 for attorney fees
on her interest in the marital residence.
Mr. McNicholas testified that he started an IRA before the parties married with $ 4,000.00. The Putnam IRA was opened during the marriage. Other funds were added to it during the marriage. Because of the lack of sufficient evidence to trace any portion of it to Mr. McNicholas’ separate funds, it is found to be marital property because it was created during the marriage.
Mr. McNicholas opened up a Principal IRA in July 2003 (after the parties separated) by rolling over his 401(k) from First Look Dealer Network, LLC (a prior employer of Mr. McNicholas). This IRA had a value of $ 16,915.15 as of September 30, 2003. I find it to be part marital and part separate property as follows:
Mr. McNicholas’ separate property $ 5,344.40
Marital property $ 10,850.75
Total: $ 16,195.15
This finding is based upon the calculation of Ms. McNicholas’ expert, Stanley B. Corey, Jr., ChFC, CFP, as set forth in Defendant’s Exhibits 4-F and 4-G.
Mr. McNicholas leases a 2003 Acura for $ 469.00 per month with the rental term to expire in March 2006. The Acura is not owned by the parties; therefore, the vehicle itself cannot be considered property for equitable distribution purposes. The lease may be the property of Mr. McNicholas (he alone leased the vehicle starting in September 2002), but no evidence was presented of the value of the lease. The vehicle will not be considered for equitable distribution purposes except as a debt owned by Mr. McNicholas.
The parties offered extensive evidence as to their furniture, household furnishings and other tangible personal property that was located in the marital residence before some of it was removed by Ms. McNicholas when she moved out in January 2004. They also offered evidence of gifts received by Mr. McNicholas and what items Ms. McNicholas wishes to retain. See Complainant’s Exhibits 34 and 50; and Defendant’s Exhibit 11-A and 11-B. However, neither party offered any evidence of the value of this personal property. Therefore, it will not be considered for equitable distribution. An equitable distribution cannot be made without knowing the value of the property being equitably distributed.
In 1999, stock trading by Mr. McNicholas resulted in a short-term capital loss of over $ 15,000.00 for income tax purposes. See Schedule D (Form 1040) for 1999, Defendant’s Exhibit 9. Because no more than $ 3,000 of this loss can be applied against income in any one tax year, it can be carried forward or backward. Not all of the loss has been utilized through 2003. Also, according to Mr. Corey, there is a math error in carrying over the loss from 2000 to 2001 of $ 2,679. This is an additional loss that can be captured by filing amended joint returns for 2001 and 2002 (the parties filed jointly for 2001 and 2002). Ms. McNicholas refused to file jointly with Mr. McNicholas for 2003. There is, therefore, no reason to believe that she would agree to file joint amended returns for 2001 and 2002.
Mr. McNicholas wants all of the aforesaid loss allocated to him, while Ms. McNicholas wants it divided equally. Mr. Corey testified that the Internal Revenue Service would recognize a court ordered division of such loss in future years.
Initially, I am skeptical that a net short-term capital loss carryover for income tax purposes is “property” under v. Code § 20-107.3. Secondly, its value is speculative because it must be based upon future uncertain factors such as taxable income and other available deductions, exemptions and credits. I think the whole concept is too speculative and lacks a reasonably reliable basis for an equitable distribution. Therefore, the loss will not be considered for equitable distribution purposes. Let each party deal with the loss as he or she may be advised.
I find the following to be the marital debts of the parties:
Creditor Debtor Amount
American Express Platinum Card Mr. McNicholas $ 2,023.77
American Express Blue Card Mr. McNicholas 2,338.30
Citibank Diamond Preferred
Entertainment Card Mr. McNicholas 192.74
Chase Platinum Master Card Mr. McNicholas 13,660.48
Bank One Visa Mr. McNicholas 39,336.46
MBNA Mr. McNicholas 15,118.58
Capital One Master Card Mr. McNicholas 20,187.07
Bank One Visa Ms. McNicholas 5,050.16
Citibank Master Card Ms. McNicholas 4,420.00
Capital One Master Card Ms. McNicholas 5,034.21
Sony Citibank Master Card Ms. McNicholas 12,361.16
MBNA Visa Ms. McNicholas 7,574.00
Costco Ms. McNicholas 833.00
Loudoun Hospital Center Ms. McNicholas 791.24
All of Ms. McNicholas’ debts were incurred after the parties separated.
Other debts of the parties include the following debts, referred to above:
Debt Debtor(s) Amount
First deed of trust on marital
residence Joint $ 266,533.22
Second deed of trust on marital
residence Joint 65,013.14
Loan on Infiniti Q45 Mr. McNicholas 17,048.00
$ 469.00 per month
Accura Lease Mr. McNicholas through March
Additionally, the parties have incurred attorney fees as follows:
Party Amount of Attorney Fees and Costs
Mr. McNicholas Over $ 62,000.00
(See Complainant’s Exhibit 52)
Ms. McNicholas Over $ 42,000.00
(See Defendant’s Exhibit 20)
The factors of v. Code § 20-107.3(E) are considered below.
The parties married in September 1991. They lived in Rockville, Maryland. Mr. McNicholas worked for his father while Ms. McNicholas worked as a cashier at Giant. At first they lived with Ms. McNicholas’ mother. Then they moved to an apartment before their child Ryan was born in February 1992.
The parties then moved to a house. Mr. McNicholas started a carpet cleaning business on the side while Ms. McNicholas earned money providing daycare. The carpet-cleaning business lost money, so the parties moved to Ms. McNicholas’ parents’ home to save money. Ms. McNicholas got a job as an assistant manager at the Limited. Mr. McNicholas went to work at a mortgage company.
Eventually the parties obtained a townhouse in Ashburn, Virginia. Mr. McNicholas went to work for a car dealership in Tysons Corner. Ms. McNicholas still worked at the Limited. Both worked long hours and saw little of each other while arranging for day care for Ryan. It put stress on the marriage.
Before Devin was born in August 1998, Ms. McNicholas stopped working at the Limited. After Devin was born, Ms. McNicholas did not work, but stayed home and took care of the home and family.
In August 1999 the parties purchased the marital residence. Mr. McNicholas was working for First Look, and he traveled as part of his work. He also began doing online stock trades. The parties started to grow apart. Mr. McNicholas managed the family finances. He concentrated on his career, lifestyle and making money while Ms. McNicholas stayed home to take care of the children and the marital residence. Mr. McNicholas did manage on weekends and at limited other times to take care of the exterior of the house and participate in the children’s activities.
Until 2002 Ms. McNicholas was the dedicated mother who did everything for the children. She was the mother all of the neighborhood kids looked up to, and she was always doing something for the neighborhood children. But in 2001, for a variety of reasons known only to Ms. McNicholas, she changed. She had a history of a substance abuse problem, but through 2001 she had it under control. However, in 2001 she began to drink again and it got worse as time went by.
A significant amount of evidence was presented as to what Ms. McNicholas did and did not do starting in 2001, much of it not very flattering to her. There is no need to go into detail, but there was evidence about her drinking, the alcohol/drug related incident on her birthday in June 2002 (that led her to stop drinking, but not stop using drugs), her outpatient drug program at Loudoun Hospital Center from August 2002 to March 2003, the failed marriage counseling in the summer of 2002, the parties’ sexual problems, her denial of sex to Mr. McNicholas after he made an effort to help their sexual problems, the torrid, rocky adulterous relationship with Mr. Bergel that she initiated, her abortion after the parties separated (she was not pregnant by Mr. McNicholas), her being gone from the children frequently, and sometimes for long periods without explanation, Mr. McNicholas’ inviting his mother to come live at the marital residence without consulting Ms. McNicholas, the animosity between Ms. McNicholas and Mr. McNicholas’ mother, Ms. McNicholas’ DUI arrest in October 2003, and her continued affairs with other men.
Ms. McNicholas went from the hard working model mother and wife in the 1990’s to the exact antithesis in the 2000’s. She expresses little regret for what she’s done, and dismisses it with “I made a mistake.”
Until the parties separated Mr. McNicholas made almost all the monetary contributions to the well-being of the family. Until 2002 Ms. McNicholas made substantial nonmonetary contributions, but as stated above, that all changed. When the parties separated in September 2002, Mr. McNicholas was making all the monetary contributions and most of the nonmonetary contributions. However, I cannot overlook the significant nonmonetary contributions, as well as some monetary contributions, of Ms. McNicholas for most of the marriage.
There was no specific evidence of the contributions of the parties toward the acquisition, care, and maintenance of the marital property. However, I think it can be reasonably inferred from the evidence that money used came almost exclusively from Mr. McNicholas.
Both parties helped physically maintain the martial residence. Ms. McNicholas took care of the interior, and Mr. McNicholas the exterior.
The marriage lasted about eleven years.
Mr. McNicholas is 35 years old.
Ms. McNicholas is 34 years old.
Both are in good physical and mental health.
I do not think that any fault or cause of dissolution of the marriage had any impact on the marital property or its value.
The matters relevant to this factor have been discussed above.
The debts and liabilities of the parties are described above.
Except for the marital residence, the Infiniti, and the motorcycle, the marital property is liquid.
No specific of a tax consequence to either party was presented.
Equitable Distribution Decision
After consideration of the evidence, the statutory factors and all the circumstances of this case, the following is ordered:
(1) The marital residence shall be sold by private sale by the parties through a mutually agreeable agent. If the parties cannot agree on an agent, then they may come to the Court for selection of an agent. The net proceeds from the sale shall be divided equally between the parties. If the lien placed on Ms. McNicholas’ interest by her attorneys prevents an equal division of the net proceeds, then, unless the parties agree otherwise, Mr. McNicholas may bring the issue back before the Court for such other relief as may be appropriate under the circumstances.
(2) The federal and state 2002 tax refund plus any accrual interest and less any charges, if any, shall be allocated to Ms. McNicholas.
(3) All the rest of the marital property shall remain the sole property of Mr. McNicholas.
This decision awards Mr. McNicholas a little over 60% of the martial wealth, which I feel is equitable.
No allocation of marital debts is made. Mr. Mc Nicholas shall continue to be responsible for the loans against the assets he retains.
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