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HB 688 - The Rebirth of Fault in Support Awards - March 2016

March 15, 2016

by A. Bartlett Keil

In recent years, most of us in the profession have been of the opinion that the role of fault in divorce is waning – some say non-existent. However, the tide may be turning with the unanimous passage of House Bill No. 688, presently on the Governor’s desk to be signed into law. This Bill, which amends Va. Code Ann. Sec. 20-107.1(E)(13), once signed will, for the first time, require courts – in determining the nature and amount of a spousal support award - to also consider “the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce as are necessary . . . .” Previously, courts could consider the “fault” factor only in the initial decision whether [or not] to award support, but NOT in determining the nature and amount of the award.

Perhaps this is merely “housekeeping” on the part of the Legislature to conform the language of our divorce statutes, but whatever the legislative intent, the impact is potentially far greater. Our courts will now have the authority – if not the duty – to make support awards punitive in nature, with the party being the most “guilty” in the divorce either paying more or receiving less, depending on the wrongdoer.

While a similar provision in Virginia’s Equitable Distribution statute (Va. Code Sec 20-107.3(E)(5)), allows the judge some leeway to adjust the distribution of marital property based on the facts and circumstances leading to the divorce, but this writer is of the opinion that the property awards being handed down – with some exceptions in the extraordinary cases - have not been significantly impacted by fault. Typically, marital property division is handled much like a partnership distribution, with fault having little bearing on the actual award. Therefore, HB 688 has the effect of reviving the role of fault in divorce and increasing the cost of litigation.

It remains to be seen how this amendment will be applied in practice. Often, both parties are guilty in part of something that led up to the marital discord and divorce. Will the trial judge consider only the most egregious behavior, or apportion the blame and therefore the amount of the award? If nothing more, we can look forward to some interesting rulings and written opinions explaining the application of this amendment in the various fact patterns of actual cases.

Bart Keil, a Pender & Coward shareholder, focuses his practice in the area of family law. He can be reached at (757) 490-6286 or bkeil@pendercoward.com.