Prince William County Divorce Virginia Military Code 20-107 Spousal Support Retirement Pay Marital Share Attorney Fees

Prince William County Divorce Virginia Military Code 20-107 Spousal Support Retirement Pay Marital Share Attorney Fees

JOSE BERTO DARLEY v. ELICIA PATRICIA DARLEY

Record No. 1216-09-4

COURT OF APPEALS OF VIRGINIA

October 6, 2009, Decided

The Husbandasked the Prince William County trial court to acknowledge the foreign divorce, or in the alternative, to award him a divorce on the grounds that the parties have lived separate and apart for more than one year. Wife filed an answer and counterclaim. The trial court awarded wife fifty percent of the marital share of husband's military retirement pay, $ 600 per month in spousal support, and $ 1,500 in attorney's fees. Husband timely noted his appeal.

Issues:

Whether the trial court erred when it awarded wife spousal support?

Whether the trial court's award of spousal support exceed wife's standard of living?

1) Whether the trial court erred when it awarded wife spousal support?

Virginia Code 20-107.1 specifically states that in determining a party's income, the trial court shall consider "income from all pension, profit sharing or retirement plans. The income received by husband from his share of the distribution of his pension is a fungible asset that may be considered as a resource when determining the amount of his spousal support obligation. Accordingly this court held that "the trial court did not err when it awarded wife fifty percent of husband's military retirement pay and spousal support, since the retirement award under equitable distribution differs from the spousal support award."

Whether the trial court's award of spousal support exceed wife's standard of living?

The court held that "The trial court's award of spousal support did not exceed wife's standard of living during the marriage. Wife testified that she had been employed during the marriage, and she and her husband lived in a four-bedroom house in Panama. Now, she is not employed, uses food stamps, and borrows money to pay for her monthly expenses. She also has health concerns, including diabetes, glaucoma, and back problems. In awarding spousal support, the trial court considered the factors in Code 20-107.1, especially the length of the marriage, wife's health, and wife's earning capacity."

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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