7.3 Preliminary Requirements

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

7.3 PRELIMINARY REQUIREMENTS

7.301 Decree of Dissolution or Divorce. The court must satisfy two prerequisites before it begins a proceeding to equitably distribute the property of the parties. The first prerequisite is that the court must decree the dissolution of a marriage or a divorce from the bond of matrimony. In some circumstances, the granting of a final divorce in a foreign jurisdiction may permit a Virginia court to commence an equitable distribution proceeding between the parties pursuant to subsections (A) and (J) of section 20-107.3 of the Virginia Code. This statutory requirement is an "element" of the court's jurisdiction but is not equivalent to subject matter jurisdiction. In a case where this element is lacking, a failure to object to the jurisdictional defect will waive the right to raise the objection on appeal. ⁴

In a "divisible divorce" situation, counsel must file a certified copy of the foreign final divorce decree in the Virginia trial court. It must also be shown that one of the parties was domiciled in Virginia when the foreign proceedings were commenced and that the foreign court did not have personal jurisdiction over the party domiciled in Virginia. The Virginia domiciliary must initiate the proceeding within two years of receiving notice of the foreign divorce decree. The Virginia trial court must obtain personal jurisdiction over the parties pursuant to subsection (A)(9) of section 8.01-328.1 or in any other manner permitted by law. ⁵

7.302 Request for Equitable Distribution. The second prerequisite to a Virginia equitable distribution proceeding is that the court must have before it a request by either party to make an equitable distribution award. ⁶ When a proper request is made for the court to determine equitable distribution of the marital wealth, it is an abuse of discretion for

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the court to refuse to do so. ⁷ Section 20-107.3 only requires that a party "request" the court to apply the...