2020 CHANGES IN VIRGINIA LAW – FAMILY LAW
The Virginia Legislature has had an extremely productive 2020 legislative session with numerous bills passing both chambers of the legislature. The following is a review of the major changes to the domestic relations laws in Virginia that took effect on July 1st:
Senate Bill 17 introduced by Senator Adam P. Ebbin deals with same‐sex marriages and civil unions.
- Repeals §20-45.2 and §20-45.3 of the Code of Virginia, which prohibited marriage and civil unions or other arrangements purporting to bestow the privileges and obligations of marriage between persons of the same sex.
- These prohibitions are no longer valid due to the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S. ___ (June 26, 2015) in which the Supreme Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require states to both license a marriage between two people of the same sex and recognize a marriage between two people of the same sex that was legally licensed and performed in another state.
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Senate Bill 105 introduced by Senator Barbara A. Favola deals with the best interests of the child determinations for child custody and visitation.
- Amends and reenacts §20-124.3 of the Code of Virginia.
- In addition to the current factors, in determining the best interests of a child for purposes of determining custody or visitation, any history of child abuse and acts of violence, force, or threat that occurred no earlier than 10 years prior to the filing of a petition for custody or visitation of a child shall also be considered by a court.
- Prior to this change in law, history of child abuse and acts of violence were not factors to be included in determining the best interest of the child.
Senate Bill 428 introduced by Senator Scott A. Surovell deals with payments for unreimbursed medical expenses for pregnancy and birth.
- Amends and reenacts §20-108.2 of the Code of Virginia to provide that for any initial child support proceeding that is commenced within six months of the birth of a child, the order shall provide that the parents pay, in proportion to their gross incomes, any reasonable and necessary unpaid expenses of the mother’s pregnancy and the delivery of such child.
- This payment is in addition to any other child support obligations established and any amount paid shall not be adjusted by, nor added to, the child support calculated.
- Prior to this change, these expenses were not a requirement of an initial child support order commenced within six months of the birth of a child.
Senate Bill 429 introduced by Senator Scott A. Surovell deals with withholding of income for child support and independent contractors.
- Clarifies that income earned by an independent contractor may be withheld by court order for payment of child support obligations.
- Amends and reenacts the following section of the Code of Virginia: §§ 16.1-278.16, 20-79.1, 20-79.2, 20-79.3, 63.2-1900, 63.2-1903, 63.2-1929, 63.2-1944, and 63.2-1946.
- Prior to this change, the court only had authority to withhold support payments from income reported on a W-2.
- However, a majority of businesses pay their independent contractors through a 1099 tax form and thus there was a loophole in the payment of child support for independent contractors.
- These changes allow courts to withhold payments from any document through which an independent contractor is paid.
Senate Bill 430 introduced by Senator Scott A. Surovell deals with access to a minor’s child‐care records by parents.
- Amends and reenacts §20-124.6 of the Code of Virginia to provide that, absent a court order, a minor’s records from a child day center or family day home shall not be withheld from a parent of such minor, regardless of whether the parent has custody of such child.
- Prior to this change in law, this code section only allows the parents access, regardless of custody to the “academic or health records” of the minor child.
Senate Bill 432 introduced by Senator Scott A. Surovell deals with the reservation of right to seek spousal support.
- Amends and reenacts §20-107.1 of the Code of Virginia to provide that, unless otherwise provided by stipulation or contract, or unless otherwise ordered by the court, a party seeking to exercise their reserved right to spousal support shall be required to prove that a material change of circumstances has occurred as a prerequisite for the court to consider the exercise of such reservation.
- Prior to this change in law, a showing of a material change of circumstances was not required.
Senate Bill 433 introduced by Senator Scott A. Surovell deals with the invocation of constitutional rights in domestic relations cases.
- Amends and reenacts §8.01-223.1 of the Code of Virginia so that the judge or jury in a civil domestic relations proceeding is permitted to draw an adverse inference, such as guilt, if a party or witness refuses to answer a question regarding adultery on the grounds that such testimony might be self‐incriminating.
- Prior to this change in law, this code section stated that “[i]n any civil action the exercise by a party of any constitutional protection shall not be used against him.”
- Thus, the trier of fact was not permitted to draw an adverse inference if a party or witness refused to answer a question on the grounds that the answer to the question may self-incriminate them, including a question regarding adultery.
Senate Bill 434 introduced by Senator Scott A. Surovell deals with child support and the assignment of tax credits.
- Amends and reenacts §20-108.1 of the Code of Virginia to provide the court with the authority to assign a party in a child support proceeding the right to claim any credits resulting from the income tax dependency exemption for any child or children of the parties for federal and state income tax purposes.
- Prior to this change in law, this section only permitted the court to assign the right to a party to claim the income tax dependency exemption for any child or children of the parties, not the resulting credits.
Senate Bill 451 introduced by Senator Scott A. Surovell deals with awards of attorney fees in Juvenile and Domestic Relations District Courts.
- Amends and reenacts §16.1-278.19 of the Code of Virginia to permit a juvenile and domestic relations district court judge to take all relevant factors, in addition to the relative financial ability of the parties, into consideration when awarding attorney fees and costs.
- Prior to this change in law, the court was only permitted to consider the relative financial ability of the parties when making an award of attorney fees and costs.
House Bill 1500 introduced by Delegate Chris Collins deals with pendente lite spousal support guidelines in circuit court.
- Amends and reenacts §20-103 of the Code of Virginia to make current juvenile and domestic relations district court guidelines for the presumptive amount of temporary spousal support, as laid out in §16.1-278.17:1 of the Code of Virginia, applicable in cases filed in circuit court.
- Prior to this change in law, this presumptive amount was not applicable in circuit court cases.
- Both §16.1-278.17:1 and §20-103 are amended and reenacted so that the guidelines are adjusted to account for changes to the federal tax code that became effective on January 1, 2019.
Senate Bill 62 and 1066 introduced by Senator David R. Suetterlein and Senator Jennifer A. Kiggans deal with marriage records, divorce and annulment reports, and identification of race.
- Amends and reenacts §§ 32.1-267, 32.1-268, and 32.1-268.1 of the Code of Virginia to eliminate the requirement that the race of married parties be included in marriage records, divorce reports, and annulment reports filed with the State Registrar.
- The bill also removes the requirement that the State Registrar include race data in the compilation and posting of marriage, divorce, and annulment data.
- Under current law, when a marriage is performed in the Commonwealth, the race of the marrying parties, in addition to other personal data, is filed with the State Registrar.
- These changes will eliminate this requirement so that married couples will not have to disclose their race when filing marriage records, divorce or annulment reports to the State Registrar.
- The proposed legislation making these changes moved through every committee and the legislative chamber without opposition from any lawmaker