6.10 Orders and Decrees

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

6.10 ORDERS AND DECREES ¹⁶⁴

6.1001 Required Information and Notices. All orders directing the payment of spousal support or child support must include specific information and notices prescribed by statute. This includes pendente lite orders, final orders determining either type of support, and modification orders. Orders confirming separation agreements must also comply. If a separation agreement contains all of the required information and notices, then the incorporation of the agreement into the order or decree will be sufficient. ¹⁶⁵ If the separation agreement lacks all or part of the information and notices required, then the order should include the required material. ¹⁶⁶ For all

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orders directing the payment of child support, or the payment of spousal support where there are minor children whom the parties have a mutual duty to support, the required information and notices are set forth in section 20-60.3. ¹⁶⁷ When there are no minor children whom the parties have a mutual duty to support, the order directing the payment of spousal support must contain the required information and notices set forth in section 20-107.1(H). ¹⁶⁸ When the information that must be provided in an order also is designated as confidential by Section 20-121.03, the protected information must be provided in a separate, confidential addendum. ¹⁶⁹

The forms illustrated in Appendices 6-4 and 6-5 contain the information and notices required by Sections 20-60.3 and 20-107.1. They may be prepared by the lawyer's office as alternatives to the printed court forms. The orders do not specify whether they are portions of pendente lite orders or final orders. Counsel can recite how the matter came before the court in the introductory paragraph. Because these forms deal only with spousal support and child support, they can be used as the basis for an order dealing with those issues only, or they can serve as just a portion of a larger order or decree dealing with a comprehensive set of issues in a divorce.

Appendix 6-10 illustrates one type of spousal support award—a periodic award of undefined duration. ¹⁷⁰ If such an award is made based on an agreement of the parties, no written findings are required to support the award, but for agreements that are executed on or after July 1, 2018, the agreement must specify if the parties intend for no modifications to be made beyond those for which the agreement provides. ¹⁷¹ If, however, the matter is heard in circuit court and is contested, the section dealing with spousal support will need to include written findings.

The federal tax laws were amended in 2017 to eliminate the child dependency exemption, so this will not be available beginning in tax year 2018. ¹⁷² But under Section 20-108.1(B)(13), if the court has allocated the child tax credit to one party or the other, counsel should add that at the conclusion

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of the order, as indicated. ¹⁷³ If the court has deviated from the presumptively correct amount of child support, the final page of Appendix 6-4 should be completed, on which the judge will include the various findings that must be made to satisfy Section 20-108.1. ¹⁷⁴

6.1002 60-Day Deadline for Decision. When a matter, claim, motion, or issue has been submitted to a circuit court for decision in a civil action, but the circuit court judge has failed to act or to render a final decision and more than 60 days have passed, the judge is required to report in writing to the parties or their counsel stating an expected time of a decision. ¹⁷⁵ If the judge does not take this action, any party or counsel can report this to the Chief Justice of the Supreme Court, who will inquire into the cause of the delay and, if necessary, designate another judge to assist the regular judge in the performance of his or her duties. ¹⁷⁶

6.1003 Payroll Deduction Orders. The court may order an automatic payroll deduction to ensure that a support obligation is fulfilled. ¹⁷⁷ The statutory sections impose a variety of technical requirements. The Virginia court system has provided two forms that may be used both in the circuit court and juvenile and domestic relations district court for this purpose. ¹⁷⁸

6.1004 Child Income Tax Dependency Exemption Allocation. Unless the parties have agreed otherwise, Virginia courts have the discretion to order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption or the child tax credit for any child or children of the parties, for any tax year or future years, for federal and state income tax purposes. Because of changes to the tax law that were made by the Tax Cuts and Jobs Act of 2017, ¹⁷⁹ the child dependency exemption was reduced to $0 for 2018 through 2025. However, other federal tax provisions still require that a taxpayer be eligible to claim

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this exemption in order to have a "qualifying child," for example, be eligible to file as head of household, so the assignment by one parent...