What in the world is an Uncontested Divorce?

Almost every divorce client walks in to an attorney's office and the first thing they ask about is the Uncontested Divorce. And, its to be expected. Most law firms charge a flat rate for Uncontested Divorces, and the fee is usually less than what most people expect to pay for a Divorce. The truth is, there is no Uncontested Divorce.

   What an attorney means when they advertise an Uncontested Divorce, is that if both parties are willing to enter into what is commonly referred to as a Property Settlement, or Stipulation Agreement, the attorney will draft an Agreement and the other necessary filings for a flat rate. But, most people in a Divorce are not in agreement about the matters in a Property Settlement Agreement.

    A Property Settlement Agreement covers every aspects of the parties marriage from their home, vehicles, credit card debt, spousal support, child support, healthcare for children, etc. These are issues which most people may have an idea about but are not 100% sure on which side they fall. Of course, if an attorney says a party is entitled to spousal support, they are almost always willing to fight out a Contested Divorce to obtain this support. If not, then they will almost always compromise on the issue - even paying spousal support in some cases to leave the marriage in good will.

    There are also a few pitfalls to an Uncontested Divorce that every client should be aware of. For example, does the flat fee cover court costs, depositions, service of process and what about postage? Many law firms have hidden fees with an Uncontested Divorce. Some firms charge between $75 and $100 per page for changes to the Agreement. Some of these changes maybe as simple as changing whether the Husband or Wife will cover the children's health insurance. This will take an attorney only moments to alter and a bill goes out for a $100.

    What should a client do then? The best advice for someone hoping to keep their Divorce cost low and follow down the path of an Uncontested Divorce is to sit down with your spouse and write out the property that each of you intend to keep, any child custody arrangements, or even who will be responsible for what portion of the family debt. Something as simple as writing out who gets what can save hundreds of dollars in attorneys fees.
          If you are considering an Uncontested Divorce - give me a call or email and I can help you work through these matters in a cost effective and efficient way.

What is “Gross Income” for Purposes of Child Support?

        Under Virginia Code §108.2(C) gross income means “all income from all sources.” This includes, but is not limited to income from salaries, wages, commissions, royalties, bonuses, dividends ... spousal support, rental income, gifts, prizes and awards.” The Commonwealth takes a very broad approach in construing this language. Courts will include “nonmonetary as well as cash income.”

         In Howe v. Howe, the Court of Appeals included a party's contributions to their retirement plan as well as a $10,000 gift. The Court stated “the emphasis should be on including, not excluding, income especially where including the income more accurately reflects a parent's economic condition and financial circumstances.”

         The broad construction of gross income is however, not without limitations. The Court of Appeals has ruled that “[d]etermination of support awards must be based on contemporaneous circumstances.” In DeTuncq, the Court held “income includes bonuses, but should not include income 'premised upon the occurrence of an uncertain future circumstance.” This was re-affirmed in Broadhead, where the Court stated “a trial court should only include a conditional bonus within the employee's gross income when, at the time of the evidentiary hearing, the conditions are reasonably likely to be met for the bonus to vest.” The finding in Broadhead resulted in the Court of Appeals excluding a party's “predicted bonus.” Id. at 19.

         In McMartin the Court of Appeals further limited the inclusive nature of Gross Income when it found that incomes appearing as commissions, advances, and gifts should not be included where they are in fact loans. In McMartin, a wife was given financial help from her employer and friend, which included a down payment on a home, money advanced for living expenses, money paid for wife's life insurance, and $900 per month in rent the wife was not charged.

         The Court found the money given “over and above her salary ... [were] advances against her future commission.” The Court ruled “the advances and payments were in the nature of loans, rather than gifts and commissions.” Furthermore, there was no authority “that compels, as a matter of law, the inclusion of a loan in party's gross income.” And, there was “no indication that the advances will not be repaid by wife upon receipt of her commission.”

                  CONCLUSION:  

1. Courts in the Commonwealth will include any and all incomes in determining gross income. 
2. Limitations require income to be contemporaneous and not in the form of loans.

         If you have questions regarding your Child Support please contact Brandon C. Waltrip, or Heather Pedersen at Pedersen, PLLC in Williamsburg, VA. (757)903-4410.

Statutes and Case Law to Consider

Code of Virginia §108.2(C) (1950 as amended)

Turner v. Commonwealth, 226 Va. 456 (1983)

Broadhead v. Broadhead, 2010 Va. App. LEXIS 101 (unpublished)

Carmon v. Dep't of Soc. Servs., 21 Va. App. 749 (1996)

DeTuncq v. DeTuncq, 2001 Va App LEXIS 248 (unpublished)

Howe v. Howe, 30 Va. App. 207 (1999)

McMartin v. McMartin, 2006 Va. App. LEXIS 41 (unpublished)

***This Blog is NOT Intended to replace actual Legal Advice. Please See a Licensed Attorney if you have questions regarding any legal matter.