7.7 FACTORS THE COURT MUST CONSIDER

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2024 Ed.)

7.7 FACTORS THE COURT MUST CONSIDER

7.701 In General. Before dividing assets and making a monetary award, the court must consider the factors listed in subsection (e) of section 20-107.3. The decree should state that all of the statutory factors have been considered. the court does not have to quantify the weight given to each factor in its consideration.⁷⁵

The following factors are listed in subsection (e) of section 20-107.3:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party to the acquisition and care and maintenance of the marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;⁷⁶
5. The circumstances and factors that contributed to the dissolution of the marriage, specifically including any ground for divorce under section 20-95 or subdivision (A)(1), (3), or (6) of section 20-91;
6. How and when specific items of marital property were acquired;

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7. The debts and liabilities of each spouse, the basis for those debts and liabilities, and the property that may serve as security for those debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of those funds, when it was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Other factors that the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.⁷⁷

7.702 Marital Misconduct. Marital misconduct often has been the subject of equitable distribution litigation. In Bacon v. Bacon,⁷⁸ the appellate court ruled that under subsection (E)(5) of section 20-107.3, the court may consider any circumstances that contributed to the dissolution of the marriage and is not limited to considering only the fault that is the specific ground for a divorce. The scope of this consideration was narrowed in Aster v. Gross,⁷⁹ in which the court ruled that in order to be considered in the context of an equitable distribution proceeding, an act of marital misconduct must have added to the "economic consequences" caused by the dissolution of the marriage.⁸⁰ The Court of Appeals has suggested that the trial court may consider the negative impact of a party's misconduct on the well-being of a family and the mental condition of the parties.⁸¹

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7.703 Nonmonetary Contributions. The trial court must consider the nonmonetary contributions of each spouse both to the well-being of the family and to the acquisition, care, and maintenance of the marital property.⁸² When representing the spouse who contributes less money but more "home-making" efforts to the marital estate, the attorney needs to develop evidence of these nonmonetary contributions. When interviewing the client, the attorney should inquire about household chores such as housekeeping, cooking, gardening, and doing home repairs as well as about child care duties including supervising children, caring for them when they become ill or injured, and taking them to the doctor, dentist, barber, or hairdresser. The attorney should consider also whether the client supports the career of the spouse by entertaining business associates at home, accompanying the spouse on business trips, or remaining at home to care for children while the spouse is out of town on business trips.

7.704 Tax Consequences. An attorney offering evidence of tax consequences should first address the tax consequences that would result from implementing a decree based on a proposed division of the marital property that is before the court. This might be the case where the sale of property is anticipated in order to raise funds needed to comply with a monetary award. The court will need evidence on the question of whether a loan may be secured, making the sale of the property unnecessary. If sale is necessary, the court will need evidence on the question of whether some or all of the property must be sold in order to satisfy a proposed monetary award.⁸³ In developing evidence of tax consequences, an attorney must present evidence of consequences that are more than merely speculative.⁸⁴ For example, where no evidence was offered to show that a dental practice would be sold, and no evidence was offered to quantify the capital gain if a sale were to take place in the future, the trial court erred in discounting the value of the dental practice based on the tax consequences of the hypothetical sale.⁸⁵ The party asserting that the value of an asset should be discounted by the tax consequences of the sale of the asset has the burden of proving the probability of an actual, not merely hypothetical, sale of the asset.⁸⁶

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Evidence of tax consequences is relevant in determining both the value of property and the fair distribution of the property. This distinction is illustrated by comparing the decisions in "Arbuckle I"⁸⁷ and "Arbuckle II."⁸⁸ After the court values the assets, it must determine the fair distribution of those assets between the parties. In doing so, the court must consider a variety of factors, including the "tax consequences to each party."⁸⁹ Evidence...