Each year, July 1st starts the new year for the Virginia State Bar. It also marks the date that new laws, passed by the Virginia General Assembly during the last legislative session, go into effect. This year, there were several new laws pertaining to family law cases. Some of these new laws simply clarified existing laws, while others ushered in significant changes. This article highlights some of these laws and their impact on family law practitioners and clients by Nathan J. Olson of Cooper Ginsberg Gray, PLLC.
Gender-Neutral Terms in Virginia Code for Divorce and Custody in All Marriages
House Bill 623[1] replaces the terms “husband” and “wife” with gender neutral terms throughout the Virginia Code. This Bill repeals statutory prohibitions on same-sex marriages and civil unions and also amends various criminal procedure laws to make them applicable to both same-sex and opposite-sex married couples. These changes are meant to bring the Virginia Code in line with the United States Supreme Court decision of Obergefell v. Hodges.
Calculator for pendente lite (Temporary) Spousal Support
House Bill 1500 provides for a significant change to how Circuit Courts handle the issue of pendente lite (temporary) spousal support. In cases initiated prior to July 1, 2020, Circuit Court judges were not required to use any particular formula to determine temporary spousal support. Some Courts, such as the Fairfax County Circuit Court, routinely used a guideline formula, but many others courts opted against doing so. Meanwhile, guidelines were used in all Juvenile and Domestic Relations District Court cases at the temporary stage.
House Bill 1501 not only mandates that all Circuit Courts must now use guidelines at the temporary stage but also revises the guidelines themselves[2]. The guidelines now state that when the parties have minor children in common, the calculation is as follows: 26% of the payor’s income, minus 58% of the payee’s income. If there are no minor children in common, these percentages change to 26% of the payor’s income, minus 58% of the payee’s income. It is also important to note that these guidelines are not presumptive if the combined monthly gross income of the parties exceeds $10,000.
Virginia At-fault Divorce Case Law
While House Bill 1530 did not pass, it bears mentioning in this article. This Bill would have eliminated the corroboration requirement in no-fault divorce cases. This Bill passed the House but was narrowly defeated in the Senate. The fact that this Bill nearly passed should cause this issue to remain on the radar of family law practitioners. In the coming years, it could very well be that corroboration is a thing of the past.
Elimination of Race on Records
Senate Bills 19 and 62 were essentially combined and passed with overwhelming support. These Bills eliminate the requirement that the race of married parties be included in marriage records, divorce reports, and annulment reports filed with the State Registrar. These Bills also eliminate the requirement that the State Registrar include such data in the compilation and posting of marriage, divorce, and annulment data.
Expands Child Support and Coverage of Pregnancy Expenses
Senate Bill 428 expands the scope and reach of child support. This Bill provides that for any initial child support proceeding that is commenced within six months of the birth of the child, a resulting child support order shall provide that the parents pay in proportion to their gross incomes, any reasonable and necessary unpaid expenses of the mother’s pregnancy and delivery of said child(ren).
Adultery as a Crime and Pleading the 5th in Divorce Proceedings
Senate Bill 433 relates to a topic much debated by family law practitioners, adultery. Adultery is still a crime in Virginia, Class 4 Misdemeanor, but is rarely prosecuted. Because it is a crime, spouses accused of adultery in a divorce proceeding may claim the 5th Amendment privilege in refusing to answer questions regarding the adultery. The result is that an innocent spouse and his/her attorney may have an uphill battle in proving that the adultery occurred.
The initial version of Senate Bill 433 removed the criminal aspect of adultery and instead made the punishment a civil penalty of not more than $250. This initial version met resistance along the way and was eventually revised. The revised language, which did pass, resulted in no changes to the criminality of adultery; however, those exercising their 5th Amendment privilege in civil proceedings, such as divorce cases, may face negative consequences in that the Court may draw a negative inference from such reliance on the 5th Amendment. The criminality of adultery is an ever-present debate, so do not expect this to be the final word on this issue.
Awarding Attorney Fees in Divorce Cases
Senate Bill 452 expands the ability of judges in the Juvenile and Domestic Relations District Court to award attorney fees. Prior to this Bill passing, such judges could base an award of fees only on the relative financial ability of the parties. This meant that a party who prolonged litigation, withheld discoverable information, or who took unreasonable positions would only be ordered to pay attorney fees if that party was in a superior financial position to the reasonable party. With the passing of Senate Bill 452, such judges may now take into account all relevant factors in addition to the relative financial ability of the parties when awarding attorney fees. There are likely many family law practitioners who welcome this particular change.
Grandparent Visitation Rights with a Deceased Parent
Senate Bill 571 did not pass but is also a bill that warrants mentioning in this article. This Bill would have allowed grandparents of a deceased parent an avenue around the parental presumption. This avenue would be in the form of several factors that the Court would be required to consider in a visitation petition filed by grandparents whose own adult child (the parent of the child at issue in the petition) has died. This Bill was backed by several groups supporting grandparents’ rights but did not have sufficient support in the General Assembly to pass. Nevertheless, this issue is likely to return in the form of a subsequent Bill, so family law practitioners should also keep this issue on their radar.
Questions about the Family Law Changes in Virginia?
Time will tell as to how these new laws play out in courtrooms across the Commonwealth and whether Bills that did not pass will be up for consideration in the next 12 months. The one thing that is certain is that family law practitioners should mark July 1st on their calendars each year to make sure they are up to date on the ever-evolving family law playbook.
CGG attorneys strive to promptly return all phone calls, e-mails, and other forms of communication, and will make sure to follow-up with the Court and the opposing party to ensure your case is resolved as expeditiously as possible. To schedule a consultation appointment with one of our attorneys, visit www.cgglawyers.com or call (703) 934-1480.
[1] This Bill was combined with other House and Senate Bills, which contained similar language.
[2] A significant factor in the change to the guidelines was the fact that spousal support is no longer taxable to the payee or deductible by the payor.