Can an equitable distribution award be based on an older spouse's future needs without erroneously becoming an award of support? In White v. White, Record No. 1345-09-4, http://www.courts.state.va.us/opinions/opncavwp/1345094.pdf , the Virginia Court of Appeals held that future needs could properly be considered as it relates to age and mental and physical condition in determining equitable distribution, consistent with the court's prior narrow holding in Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533, http://scholar.google.com/scholar_case?case=8772579950750437241&q=Reid+v.+Reid,+7+Va.+App.+553,+375+S.E.2d+533&hl=en&as_sdt=80000000000002 , that earning capacity could not be considered in equitable distribution under the catch-all, "necessary or appropriate… to arrive at a fair and equitable monetary award" factor of §20-107.3(E)(11), http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-107.3 . In White, the husband and wife were married for 21 years before separating. The husband filed for divorce in the Circuit Court, neither party sought support, but both parties requested equitable distribution. The husband argued that his age and medical condition should be considered in the award under Virginia Code §20-107.3(E) http://leg1.state.va.us/000/cod/20-107.3.HTM, because he was getting older and suffered from a serious degenerative disease. The trial court held although age and physical and mental condition was not a predominant factor, it should be considered. Thus, the trial court valued the parties' assets and awarded 55% to the husband and 45% to the wife, and the wife subsequently appealed. In her appeal, the wife argued that the trial court misunderstood the differences between an equitable distribution award and spousal support by weighing the husband's future needs in the award calculation. The wife alleged that the Court of Appeal's holding in Reid precluded the trial court from considering any future needs under any circumstances in making an award. In Reid, the trial court awarded an enhanced distribution award based on the payor spouse's future income and the payee spouse's need for future housing, and the Court of Appeals reversed, holding, "It is axiomatic that whatever the future may hold for either of the parties has no bearing on the issue of the appropriate division of what has been accumulated by their contributions during the marriage." 7 Va. App. At 565, 373 S.E.2d at 540 http://scholar.google.com/scholar_case?case=8772579950750437241&q=Reid+v.+Reid,+7+Va.+App.+553,+375+S.E.2d+533&hl=en&as_sdt=80000000000002. The Court of Appeals in White distinguished its holding from Reid, stating that Reid did not preclude an enhanced award under §20-107.3(E). The Court of Appeals said Reid only addressed future needs in the context of the catch-all factor of the equitable distribution statute. Since this case involved consideration of future needs under the mandatory factor of age and physical and mental condition, the trial court did not err by considering the husband's needs. The Court affirmed that since age does not affect the parties' contributions to the marriage, it is a valid indicator of financial need, because as parties get older, they have more medical expenses and less income to pay for their needs. Thus, the Court of Appeals affirmed that the trial court's award of a greater percentage of the parties' assets to the husband based on his future needs as they related to his age and health. You should consult with your Virginia divorce attorney concerning the application of the equitable distribution factors to your situation.
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