Can a wife obtain more than half the value of the marital residence in Virginia?
In an unpublished opinion, the Virginia Court of Appeals Tye v. Tye, No. 0833-08-1 (August 11, 2009) upheld an award of 65% of the net proceeds from the sale of the marital residence to the wife.
The husband and wife were married and lived together for twelve years. The wife left the husband due to the husband’s mental health problems and his failure to take all his prescribed medications. The husband filed for divorce based on wife’s desertion. The wife filed a cross-bill for divorce based on constructive desertion and mental cruelty. At the pendente lite hearing, the divorce court awarded joint legal custody of the children to husband and wife, with primary physical custody to wife. The husband was allowed to stay in the marital residence provided he reimbursed wife for the mortgage payments and the additional costs of maintaining him on her health insurance.
The husband subsequently failed to obey the court’s orders and did not cooperate with his attorneys. At the divorce trial, the court refused to allow into evidence an alleged agreement submitted by the wife and objected to by the husband as an invalid contract. The court awarded possession of the marital residence to wife and ordered that the property be sold with the net proceeds split 65% to wife, 35% to husband. After the trial, the husband refused to leave the marital residence. The court found him in contempt of court and jailed him. While husband was in jail, wife took possession of the marital residence.
In Virginia, when the husband and wife cannot agree on how to divide their marital property, a divorce court can decide how it should be divided under Virginia’s equitable distribution statute, Virginia Code Section 20-107.3. In the Tye case, the Virginia Court of Appeals restated the general rules that Virginia law does not establish a presumption of equal distribution of marital assets and that equitable distribution lies within the sound discretion of the trial judge. This means that a Virginia divorce court does not have to order a 50/50 split of marital property, but can divide the property fairly based on a number of factors. In this case, the husband failed to cooperate with the wife in selling the property and also failed to properly maintain the property, which caused it to depreciate in value. The Court of Appeals concluded that the divorce court had not abused its discretion in awarding wife 65% of the net proceeds from the sale of the marital residence.
You should consult with your Virginia divorce lawyer concerning the equitable division of your marital debts and property.