EQUITABLE ≠ EQUAL

In a Virginia divorce, the process of dividing property and debt between the spouses is called equitable distribution.  Equitable does not mean equal; it simply means fair.  Under Virginia law, the trial judge is given wide discretion to determine what is fair.  Even if a trial judge awards a majority of assets to one spouse, as long as the judge has some basis, no matter how slight, for doing so, the award will likely survive an appeal.  A case in point is Burgess v. Burgess, decided in January 2019.  In rejecting a wife’s appeal, the Virginia Court of Appeals took pains to emphasize that equitable does not mean equal.  The wife asserted on appeal that it was an error for the trial court to give her husband vehicles valued almost double the vehicles she was awarded.  The Court of Appeals stated that the trial court’s decision was permissible because the trial court had no obligation to equalize the distribution.  The wife also asserted that it was an error for the trial court to award her husband $75,000 of the remaining funds while only awarding her $18,000.  Again, the Court of Appeals stated that the trial court had no obligation to equalize the award.  Finally, the wife asserted that the trial court erred by giving her husband 1/2 of the equity in the house when she had reduced the mortgage by $18,000 during the separation.  The Court of Appeals again found that the trial court had no duty to equalize the award.  

While this case makes clear that an unequal award is legally allowed, the unequal division made by the trial court in this case is far from typical.  In the vast majority of cases trial judges divide property equally or close to equally.