"Divorce in Virginia"
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Some clients (not ours, of course--ours are perfect) occasionally take
extreme positions in the way they view the world. They want everything
to be black or white. Shades of gray are uncomfortable, especially
in areas into which they have never tread. They have been hurt and
deserve to be make whole again. And the "whole making" should begin
immediately.
Why can't there be hard and fast rules
such as the following:
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My husband left me. I get everything.
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My wife committed adultery. I get
everything, including the children.
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My wife has denied me sexual intercourse
for years. That's the same as desertion, and I get everything.
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I paid for the car my spouse is driving
(here are the canceled checks with my signatures on them)--it's therefore
mine.
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I have been married for at least 10 years
to my military spouse, and we are divorcing--I automatically get half of
the retirement pay.
Each of the above
rules, as clean cut as they are, are each not true. As nice as rules are,
absolute rules sometimes can lead to terribly unfair results in different
circumstances. In order to give a resolution to a certain set of facts
with no qualifications, the premise has to stand up to logical analysis
in extreme situations.
So, let's test
each of the above premises for logical and moral consistency in the extreme
case. If the argument works in those situations, then it can work
in the typical setting, and a "hard and fast" rule can be established.
If it doesn't work, then the "rule" is anything but. If other factors
must be taken into consideration, and we have shades of gray. Then
you will need, gasp, lawyers and judges to help sort things out.
Statement: My spouse left me. Therefore he/she
loses everything right?.
Response: Well, now, let's see. To test
the first example, let's say you berated your spouse mercilessly and continuously
for months on end, causing him/her to sink into a depression that only
leaving the tormentor (you) could relieve. Should the one who leaves
under those circumstances lose everything (or anything)? If such
a result were the case, then if you were my client, it would be
my obligation to advise you to torment and berate your spouse mercilessly
and relentlessly until he/she left. And imagine what your spouses
attorney would be advising! Would such advice really make sense?
Of course not. Therefore, the statement cannot be, and is not, the
law. The court has got to look at the reasons for the spouse's leaving.
Generally speaking, upon analysis of the facts the court will find that
both parties have their strong and weak points. As one judge put
it, "From my perspective, each party is usually about 50% at fault.
Even in unusual situations, its rarely more than 60/40." The only
exception is where there has been a long history of spousal abuse.
Statement: My spouse left me, and I can prove
that I didn't do anything like the above. He/she loses everything in that
case, right?
Response: Okay, take away any overt cruelty
on your part. Let's just make you an incredibly boring person.
You never want to go out. Before you were married you were lots of
fun, but now that you have found your mate, there is no reason to do anything
social. After all you are not looking for a mate any longer. A beer
(or glass of wine), and a bag of popcorn (or some cheese) is all the Saturday
night festivities you need. Your spouse thought the exciting nightlife
that preceding the wedding would continue afterwards, but you made no such
promises. Your spouse also thought that children were one of the
objectives of the coveture, but you made no such promises of that (or even
sex) either. A dog is all the responsibility you want. You've
been married 10 years, and together have accumulated $1,000,000 in assets
(you didn't do anything to spend your money on, so it grew quickly) .
You both make the same amount of money, so you both contributed to the
pot. Your spouse says "I've only got one life to live, and I want
the possibility of having my own children. I'm out of here."
Should it cost a half-mil to leave?
Statement: My spouse committed adultery.
I get everything, right?
Response: Let's test this one by putting
the shoe on the other foot. Let's say you were a partner in a 20 year loveless
marriage. You worked hard inside (raising kids) and/or worked outside
of the home (at a lucrative profession). Together you and your spouse
accumulated substantial wealth together (let's say $10 million).
However, in all that time you never received a kind touch or word of appreciation
from your partner. At work, the library or at church, you meet a
Prince(ss) Charming who momentarily sweeps you off your feet. In a moment
of weakness and passion, you "slip" and violate your vows. Should
that violation cost you $5 million? (It may cost you a spot in heaven,
but the judge will not play God. The judge --little "j"--will see the relationship
in the long view for what it is or has been, and will distribute the marital
property accordingly. The judge will not assess a fine or extract
a monetary penalty for the act of adultery. Indeed, a careful reading
of the statute specifically forbids this type of punishment.) (Caveat:
Please do not read this paragraph as some sort of "permission" or "license"
to commit adultery. Adultery is still a high offense to our society's
moral fiber, and we strongly discourage the act as one that needlessly
destroys families and children. We state the facts of this and other
examples only for a context to discuss their legal consequences.)
Statement: My wife has denied me sexual
intercourse for years. Certainly that is a good reason for me to
leave.
Response: If you beat or berate her in to
morning, don't expect to go to go to bed with her that night (or the next
night). While this is more "family counselor" advice, it is interesting
how often this comes up and in how many different contexts. It is
rarely possible for the judge to discern which came first, the proverbial
chicken or the egg. ("I have a headache from all the housework I
have been doing that he never helps me with." "I never want
to help because I know it won't make any difference. Besides I earn
more money.") We don't know the answer. The judge certainly
won't know the answer. The parties really do know the answer, but rarely
want to acknowledge it.
Statement: My wife committed adultery, therefore
I get custody of the children.
Response: No need to repeat the above scenarios.
It should be clear that a past act of adultery will not forfeit one's right
to seek and be awarded custody of children. Children should be with
the better parent, with each parent's warts, flaws and good points all
thrown into the mix. Ongoing acts of adultery in the children's knowing
presence really tick judges off, tho'.
Statement: I paid for the car that my spouse is
driving out of my checking account. I can even produce the canceled checks
with my signature one it. Therefore, it, and everything else I can
show I paid for, is mine.
Response: Let's make the object more valuable
that a car. Let's make it a house worth $500,000 and a stock and
bond portfolio worth $1,000,000. Over the course of your 20 year
marriage, you worked outside of the home, and your spouse stayed home to
raise your 4 smart and lovely children, all of whom were well-behaved,
well-rounded, and highly admired young people because of the daily fine
care and attention provided by the stay at home spouse. You were
promoted through the ranks of your employment not only because of your
hard work, but because your spouse expertly handled all of the family emergencies,
leaving you the ability to concentrate on the job. All of the money
from your job went into your personal checking account, and you handled
all of all of the financial business of the household. You penned the checks
for all the bills. You made all of the investment decisions, which panned
out pretty well. You had (and are still having) an affair with your personal
assistant spanning the last five years of your marriage. Your spouse
learned of it early on, and confronted you with it. You said you
would stop, but didn't. Your spouse but did not want the children to see
their parents divorce, and declined to leave you at that time. When
the youngest one left the home to enroll in an Ivy League college, a divorce
ensues. Should the at-home spouse will lose everything (one half
of which is $750,000) because you can prove you "paid for it"? (In
another typical situation, one spouse pays for the car and the other the
groceries. Does the one who pays for the car keep the car for the
mere fact that the food was consumed and the car wasn't?)
Statement: My military husband and I have been
married 10 years. Therefore, I am entitled to receive half of his
military retirement pay.
Response: This one is easy to play our game with.
Let's picture the situation where the military member chose to stay in
for 30 years. Coincidentally, he was married to a different spouse
for each decade of his career. Three wives, 10 years each.
Under the theory proposed, how much would the first wife get? Half.
The second? Half. And the third? Um, half?? And how much would
the military member get? It doesn't work, does it?
Okay, there is a black and white answer
here. The word "half" that you hear people talking about is "half
of the marital share" of the retirement pay, not "half of the whole" retirement
pay. The first wife would get one-half of 10/30ths (10 years of marriage
divided by 30 years of total service) as her share of the retirement pay--half
of the amount that was earned during the marriage. The second and
third wives would each get the same amount. Collectively, the 3 wives
would receive one-half of the whole retirement pay.
The military member receives the other
half. That sounds fair, doesn't it?
One more thing: the "10 year
rule" has no bearing whatsoever on this subject. A spouse is entitled
to claim a piece of the marital portion of any property regardless of the
length of the marriage. A spouse married for 9 years or 5 years can
claim a proportional share of the retirement (50% of 9/30ths, or
50% of 5/30ths). There is such a thing as "too short a period of time to
have a real claim in retirement," but the judge (or the parties) will have
to decide that on a case by case basis.
There is a 10 year rule, mind you.
It pertains to whether the federal government will be willing to write
the non-military spouse a separate check. If the marriage exceeds
10 years, the spouse can ask the government to cut her a check for her
share. Less than 10 years, no luck.
One last point: whether the marriage
is 5, 10, 20 or 30 years, the entitlement to a share of the spouse's retirement
pay is not automatic, at least not in Virginia. All that Congress
did in the legislation which it enacted back in 1982 (allowing division
of military retirement pay) was to give the various state courts the authority
(not the obligation) to treat retirement pay as an item of property, to
be divided just like any other piece of property (like a car, or a television
set). The state court were obliged only to follow their normal property
division laws, and in Virginia, that would be equitable distribution.
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