subject: Virginia Divorce & Equitable Distribution Marital Debt [print this page] Virginia Divorce & Equitable Distribution Marital Debt
Gilliam v. McGrady, 279 Va. 703; 691 S.E.2d 797; 2010 Va. LEXIS 48, April 15, 2010.
This appeal from a decree in an equitable distribution proceeding presents a question concerning the presumptions and burden of proof applicable to the apportionment between husband and wife of debts incurred during marriage.
The Court's opinion states: While the statute only creates a presumption for "all property" acquired during the marriage, we see no principled reason why the presumption should not apply to debt acquired during the marriage. Property and debt are both components of an equitable distribution award. Although the Court of Appeals approved the circuit court's ruling with respect to the burden of proof, its final order reversed the case in part, holding that the circuit court had erred in failing to properly consider the statutory factors required to classify the trust fund tax debt. The Court remanded the case to the circuit court "to consider the purpose of the trust fund tax debt, as well as who benefited from it, in order to classify that debt as marital or separate
equitable distribution proceedings ancillary to divorce are entirely creatures of statute. It is not the function of the courts to add to or amend clear statutory language. Courts will assume that the General Assembly chose its language with care and will apply it as written. In framing Va. Code Ann. 20-107.3, the General Assembly clearly knew how to create a presumption and allocate the burden of proof, having explicitly done just that with respect to assets, in enacting subsection (A)(2). For policy reasons that can be well imagined, the General Assembly chose to omit parallel provisions with respect to debts, giving to the courts only the general guidance contained in subsection (E)(7) and (11), quoted above.
