Does a Virginia equitable distribution award to wife based on husband’s adultery, drinking, gambling and verbal abuse require a showing of adverse economic impact?

Does a Virginia equitable distribution award to wife based on husband’s adultery, drinking, gambling and verbal abuse require a showing of adverse economic impact?

Not in the case of Attiliis v. Attiliis,  where the Virginia Court of Appeals ruled that husband’s drinking, adultery, gambling and verbal abuse constituted negative nonmonetary contributions to the well-being of the family entitling wife to a Virginia equitable distribution award of $65,000 without a showing of adverse economic impact , citing Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224 (2003) .

In Attiliis, the Virginia Court of Appeals addressed four equitable distribution decisions of the trial court: the distribution of a capital loss carry-forward tax credit; an order to maintain wife as a beneficiary on husband’s life insurance; an award to wife for waste, dissipation of assets, and negative non-monetary contributions; and a finding that husband’s adultery was the primary cause of the dissolution of the marriage.  The Virginia Court of Appeals first restated the rule that it will not reverse the divorce court’s discretion in fashioning an equitable distribution award unless it appears from the record that the divorce court abused its discretion, failed to consider or misapplied the factors in the equitable distribution statute, Virginia Code Section 20-107.3(E), or made essential fact findings unsupported by the evidence.

The Virginia Circuit Court in the Attillis case was reversed on its findings with respect to a $75,000 long-term capital loss carry forward and a $40,070 short-term capital loss carry forward as unsupported by the evidence at trial.  Although Wife had listed a $75,000 capital loss shown on tax returns as an asset on a list of assets in evidence, Wife offered just the couple’s 2005 tax return into evidence, which did not reveal the disputed $75,000 capital loss tax credit.  Further, Wife’s attorney did not cross-examine Husband with respect to the exact amount of the capital loss tax credit when he denied the $75,000 figure, and conceded in his closing argument that Wife was claiming half of a $37,070 capital loss carry forward.

The Circuit Court was also reversed on its ruling that husband was required to maintain wife as a beneficiary on his life insurance policy as without statutory support in Virginia Code Section 20-107.3(G)(2).  Although Virginia Code Section 20-108.1(D) allows a court to order a party to maintain an existing life insurance policy with a child as the beneficiary in a child support proceeding for the duration of a child support obligation, and Virginia Code Section 20-111.1 provides that an existing written contract with a revocable death benefit is revoked upon entry of a divorce decree, unless the parties’ contract or the divorce decree provides otherwise, nothing in the Virginia Code allows a judge to order a spouse to maintain life insurance for the other spouse’s benefit.

With respect to the divorce court’s findings and rulings on waste, dissipation of assets, and negative non-monetary contributions, the Virginia Court of Appeals first reversed the Circuit Court’s equitable distribution award for waste of a bank account following execution of the couple’s separation agreement because the award did not account for husband’s half interest in the wasted funds and thus was unsupported by the evidence.  The court next reversed the divorce court’s award of $50,000 for dissipation of assets as without supporting evidence because waste and dissipation of assets are the same thing and do not occur over the course of the marriage, but instead only while the marriage is undergoing an irreconciliable breakdown.  Finally, the Virginia Court of Appeals upheld the divorce court’s award of $65,000 for husband’s adultery, drinking and verbal abuse because the trial court’s considerations of non-monetary contributions to the well-being of the family do not require a showing of an adverse economic impact, as contended by Husband.

The Virginia Court of Appeals ruled that husband had waived his argument that the circuit court erred in ruling that Husband’s adultery was the primary cause of the dissolution of the marriage because Husband failed to cite legal authority in support of his argument in his appellate opening brief as required by Rule 5A:20 of the Rules of the Supreme Court of Virginia.

You should consult with your Virginia divorce lawyer concerning the likely effects of spousal misbehavior on an equitable distribution award.

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