Here in Virginia, we have a part-time legislature that meets to consider and pass laws, typically, for just one thirty-to-sixty-day session per year. Part of our job as attorneys is to monitor the passage of new laws so that we can advise our clients as to their impact. The January to March 2020 legislative session saw a massive amount of new laws passed, many of them in the area of family law. These laws in domestic relations come into effect on July 1, 2020.
Two bills removed gender-specific terminology (such as “husband” and “wife”) from the Virginia Code, reflecting the simultaneous removal of the statutory prohibition on same-sex marriage (already deemed unconstitutional by the United States Supreme Court in 2015). HB 623, SB 247. While this deals largely with semantics, as the provisions of Virginia’s family law Code already apply equally regardless of gender, it clarifies that family law in Virginia is the same for both heterosexual and homosexual couples. Similarly, another two bills removed the identification of the parties’ race in statistical forms required to be filed as part of a marriage, divorce, or annulment; many in Virginia have long considered the inclusion of race, a vestige of when interracial marriages were outlawed, to be irrelevant and unnecessary. HB 180/SB 62.
Several bills had an impact on spousal support. The legislature updated guidelines for pendente lite (temporary) spousal support, specifically to account for federal tax code changes that went into effect in 2019, as well as made those guidelines the presumptive temporary amount for spousal support in divorce cases. HB 1500. Another bill altered the requirement for specific language in spousal support agreements regarding future modification (HB 1501), and yet another provided that, unless otherwise agreed or ordered, a party seeking their reserved right to spousal support is still required to show a material change in circumstances in order to exercise that reservation and obtain more support. SB 432.
In the area of child support, the legislature made another adjustment to account for the changes in the tax code, allowing a court to assign either party in a child support case the right to claim any credits for a child dependency exemption in their federal or state income taxes. SB 434. Another bill provided that where a parent files for child support within six months of the birth of a child, the resulting child support order must provide that the parents pay, in proportion to their incomes, any unpaid reasonable and necessary expenses of the pregnancy and delivery of that child; previously there was no legal way to obtain contribution from the other parent in paying those expenses. SB 428. In perhaps the biggest change, another bill clarified that a court order may withhold the income of an independent contractor for the purposes of paying child support, whereas previously the Department of Child Support Enforcement could typically only withhold income from W-2 employees to pay their support. SB 429. (All three of these bills were introduced by our firm’s own Scott Surovell.)
Scott introduced another bill that made a major change to divorce law generally. Previously, due to the criminalization of adultery still on the books in Virginia, spouses in divorce actions could avoid admitting to affairs by asserting their Fifth Amendment right against self-incrimination, and courts were not allowed to infer anything from this. Scott’s bill, which ultimately passed nearly unanimously, allows a court in any family law case to draw a negative inference from a party refusing to answer a question about adultery. SB 433. Due to another of Scott’s bills, Juvenile & Domestic Relations District Courts will now be permitted to make an award of attorney’s fees and costs based on “all relevant factors,” not just limited to the “relative financial ability of the parties.” SB 451.
There were fewer bills passed implicating custody and visitation. One bill provides that in addition to a history of “family abuse” as defined by the Virginia Code, a court determining custody and visitation must also consider any history of child abuse, or any violence or threat committed by a parent within the past ten years. HB 861/SB 105. Another provides that absent a court order, both parents are entitled to direct access to a child’s daycare records, regardless of whether a parent has custody. SB 430.
Perhaps even more interesting were bills introduced by legislators on behalf of their constituents in 2020 that did not pass. One would have removed the requirement for corroboration in a no-fault divorce, meaning the parties could obtain a divorce based on living separate and apart without needing a witness to testify or sign an affidavit as to their separation. HB 1530. Another would have established a different (and fundamentally easier) standard for a grandparent to obtain court-ordered visitation of a grandchild in certain limited circumstances. SB 571. Another would have altered guidelines for child support such that they would be calculated based on net income, rather than gross income as is done now, and would have removed the court’s ability to impute income to an unemployed or underemployed parent. HB 82. While those bills did not pass in 2020, they may return for the legislature’s consideration in 2021.
As experienced and diligent attorneys, we remain cognizant of any and all important changes in the law and the ways that they may impact our clients. Please do not hesitate to reach out for assistance with any of your family law needs. Call us today at 703-570-6392, email Lily Saffer at LSaffer@SurovellFirm.com, or submit an inquiry here on our website. We are here and available to assist you.
Posted in: Family Law