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Adultery Considered as a Factor in Dividing Property
© 2003 National Legal Research Group, Inc.
VIRGINIA: Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224 (2003).
The trial court did not err by considering the adverse nonmonetary impact of the husband's adultery upon the family as one relevant factor in dividing the marital estate. Where the wife stated that items of property bought with her inherited funds were a gift to the marriage, and even listed the items as marital property in an inventory form in the divorce case, the items transmuted into marital property.
The wife successfully sought a divorce from the husband on the ground of adultery. The trial court relied upon this finding in making its equitable distribution award. The husband appealed.
It is provided in Va. Code Ann. 20-107.3 that the division of marital property shall be determined by the court after considering nine specified factors plus such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. Subsection (E)(1) allows the court to consider the contributions, monetary and nonmonetary, of each party to the well-being of the family, and subsection (E)(5) allows consideration of the circumstances and factors which contributed to the dissolution of the marriage, specifically any ground for divorce. There need not be dissipation of assets. Consideration of nonmonetary contributions to the well-being of the family requires no showing of an adverse economic impact. In this context, the well- being of the family relates to the effect on the family's emotional welfare and condition. Under the evidence presented at the hearing, it was demonstrated that the husband neglected his family responsibilities by spending little time with his wife and children in favor of his paramour. The record, therefore, supported the trial court's finding that the husband's actions constituted negative non-monetary contributions and its consideration of that factor in distributing the marital property. The court's characterization of these negative non-monetary contributions as serious lay within its discretion to determine what weight to give to each factor when making an equitable distribution award.
The husband also appealed on the ground that the trial court erred in classifying certain items of personal property as the wife's separate property. The court on appeal agreed. The wife received $104,000 in inheritances from the estates of her grandmother and mother during the marriage. The money was deposited into the parties' joint checking account. Funds from this account were used to purchase a brass bed and 400 shares of stock. The wife testified that these purchases were something she wanted to do for the family and that she considered them gifts for the family. She even inventoried these items as marital property. Yet the trial court classified them as separate property. This was error. Under Va. Code Ann. 20-107.3(A)(1)(ii), property acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the other party is separate property. Moreover, subsection (A)(3)(d) provides that where separate property is contributed to marital property or is commingled with marital property in some manner, to the extent that the separate property is retraceable by a preponderance of the evidence and was not intended as a gift, such property shall retain its original classification as separate property. However, the converse of that provision is that when retraceable separate property is used to purchase a gift it no longer retains its classification as separate property. Here, the husband bore the burden of establishing a donative intent on the part of the wife to make a gift. This burden was met. Given the wife's own statements in the record, the husband established her intent to make a gift. It was erroneous for the trial court to classify the bed and stock as separate.
Note that in the case of Shafer v. Shafer, No. 3329-2-4 (Stafford County, Va., Cir. Ct. July 29, 2003), the trial court, expressly relying upon Watts v. Watts, reiterated that under Va. Code Ann. 20-107.3(E)(1), which allows consideration of nonmonetray contributions to the well-being of the family when making an equitable distribution award, the well-being of the family relates to the effect on the family's emotional welfare and condition, and the statute does not require a showing of pecuniary impact.
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