Virginia Legal Trends and More: Family Law Group’s Bills Are Advancing

Interesting article from VLW:

By Alan Cooper
Published: February 18, 2011

Three bills backed by the Virginia Family Law Coalition, including one that would overturn a Supreme Court decision from last April, are working their way through the General Assembly with little opposition.

The Supreme Court opinion, Gilliam v. McGrady (VLW 010-6-052) dealt with the allocation of debt in equitably distributing a couple’s assets and liabilities.

When the General Assembly enacted equitable distribution in 1982 as the mechanism for dividing the property of divorcing spouses, it created a presumption that property acquired during the marriage is marital – the property of both spouses.

The law provides no such presumption for marital debt, but family law practitioners and judges typically have treated debt as if there was such a presumption.

The Supreme Court ruled otherwise, however. Without a law declaring a presumption that debts incurred during the marriage are marital, “traditional rules concerning the allocation of the burden of proof apply,” Senior Justice Charles S. Russell wrote for a unanimous court.

A party seeking to prove a debt was jointly incurred has the burden of showing that the debt is martial and shifting to the other party the burden of persuading the court that the debt was separate, Russell said.

On the other hand, the party seeking to prove that a debt was incurred by the other spouse has to make a prima facie case that the debt was separate in order to shift the burden of persuading the court that it was marital.

The decision caught family law practitioners off guard, even though they acknowledged the correctness of Russell’s analysis.

They had applied the same presumption for both property and debt because it made analyzing a couple’s finances simpler.

Typically, the fight is over a relatively few items on a credit card that one party contends should be considered separate rather than marital, as opposed to the large majority of items that were for the benefit of both parties.

Creating a presumption that debts incurred during marriage are marital rather than separate frees judges from become more involved “in the minutia of who charged what on the credit card,” said Cheshire I’Anson Eveleigh, the chair of the coalition.

House Bill 1569, with Del. William H. Cleaveland, R-Roanoke, as patron attempts to do just that. It has cleared the House unanimously and the Senate Courts of Justice Committee without a dissenting vote.
Support payments.

A second bill, HB 1529, with David J. Toscano, D-Charlottesville, as patron, is designed to clarify the authority judges have in ordering pendente lite spousal support payments. Some judges have ruled that they have the authority to enter only a specific monetary award, said Lawrence D. Diehl, a coalition member from Chesterfield County.
The proposed law makes it clear that the judges can order one party to make mortgage or utility payments directly rather than requiring him or her to pay that amount in a single monthly payment and have the other party pay the bill.

The bill ran into at least a temporary glitch in the Senate Courts Committee last week when Sen. John S. Edwards, D-Roanoke asked for delay in considering it so that he could get an answer from proponents about a constituent’s objection to it.

Filing fee measure

The third bill, Senate Bill 1068 with Edwards as patron, involves an unexpected consequence of the merger of law and equity in 2006.

Under the change, what had been a “Bill of Complaint” in a divorce became a “Complaint” and the responsive pleading that had been designated a “Cross-Bill” became a “Counterclaim.”

There was no filing fee for the cross-bill before the merger, but about a third of circuit court clerk’s offices are charging a separate for a counterclaim in divorce actions, just as they have done and continue to do in other civil actions, even though it is the same type of pleading that was filed without a fee before the merger.

As passed by the Senate, SB 1068 exempted responsive pleadings in annulment, divorce and separate maintenance proceedings from an additional fee, and, in the eyes of the domestic relations bar, restored their practice to the same fee structure that existed before the merger.

The bill has been amended in the House but still provides much of what the family law bar wants. The new language prohibits court clerks from charging a separate fee for responsive pleadings formerly known as cross-bill or a cross complaint. That language cleared the House Courts of Justice Committee but still must be reviewed by the House Appropriations Committee because of what may be diminished revenue for the state.