The top restaurant in Virginia Beach is Orion’s Roof according to TripAdvisor. It accepts reservations. Perhaps you and your attorney will have a nice brunch to celebrate your final divorce decree. Yet some people — folks afraid of heights, perhaps — have issues with it, since it is on the roof of the Marriott Virginia Beach Oceanfront Resort. Having an issue with a reservation is not the same as reserving issues in divorce.

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Virginia Law, Like a Fancy Recipe

Sometimes Virginia law is just like a recipe.

Suppose you see a direction in a cookbook that says, “Put the quail eggs into cold water, bring to the boil, simmer for one minute, cool them completely under cold running water, crack the shells lightly, then shell the eggs, rinse, and reserve them.”

That little verb “reserve” means to set them (the quail eggs, not the shells) aside after some initial work. You will come back to them as you fuss over your “Smoked Salmon Nests with Quail Eggs.”

Salmon Nests. Yeah. Quail eggs. Sure.

Anyway, in law, you come back to things by reserving them. Imagine you and your spouse are divorcing and need to iron out the Five Big Items for the property settlement agreement:

  1. Spousal Support
  2. Child Support
  3. Child Custody
  4. Child visitation (parenting time) Schedules
  5. Property Division

You and your spouse hum along swimmingly through the first four items. No problems, complete consensus. As calm as a quail egg.

Then you hit Item #5: Property Division. Suddenly your spouse insists on getting the La Cornue kitchen stove even if that means giving up the marital home to you. Your spouse wants to transplant the custom-built range (the world’s most expensive stove, BTW) into some 500-square-foot, three-story walkup in Norfolk.

Your spouse is being unreasonable and petty. But could this kitchen hitch in the plans deal a deathblow to the divorce? Not if you have an experienced family law attorney. The issue can be reserved, or set aside, as you move forward with the rest of the property settlement agreement.

Why Reserve an Issue in Divorce?

Reserving an issue in divorce is not a way to prolong agony or put off your spouse. You are not delaying action; you are keeping things moving by allowing some stumbling block to be shifted to a later date. You are also protecting both parties’ rights.

A key reason for a court to reserve an issue is to maintain jurisdiction over it. The Circuit Court approving a property settlement agreement may reserve control over child custody, even though that issue would properly move to Juvenile & Domestic Relations Court after the final divorce decree.

Two additional, good reasons to reserve an issue are to have the opportunity to revisit it when more information is available, or when circumstances change.

Suppose the problem is not property settlement, but child support. In Virginia, both parents must show proof of income and evidence of all financial assets. The custodial parent is assumed to put in X dollars in “child support” by virtue of the child living with that parent.

The noncustodial parent is then expected to contribute Y dollars in child support payments, based on comparisons of both parents’ income and expenses.

But imagine if both parties know the noncustodial parent is facing a change in income (promotion, raise, shortened work hours, layoffs). Separation in Virginia takes a year (with kids in the picture) before turning to divorce proceedings (in most cases). The divorce then takes more time. Material changes in circumstances are common. Both parties may want the same judge overseeing the divorce to return to the issue in question later.

Given the uncertainty for the one parent, either parent’s attorney can ask the court to reserve child support calculations for a time when the finances are settled. The matter remains with that judge, even if other postdivorce matters are taken up in another court.

Beginning and Ending Reservation of an Issue

You and your attorney cannot simply wave a wand and reserve an important issue. The proper sequence is:

  1. Your attorney notifies the other party of their desire to reserve an issue.
  2. The parties or their attorneys request the court to reserve the issue.
  3. The issue is identified as reserved in the property settlement agreement presented to the court.
  4. When ready to resolve the matter — and after notifying the other party or the other party’s attorney — one attorney requests the court to render a decision on the reserved matter, using updated information or a material change in circumstances.

The court generally will agree to a reserved issue since the other parts of property settlement can still move along or have already been made final in the agreement.

Are There Limitations on Reserved Issues?

Recall the first item on our Five Big Items: spousal support. Recall also Orion’s Roof and imagine you reserved a table for 8:00 p.m. on a busy Saturday night. But you and your postdivorce hot date show up all breathless and bothered at 9:00 p.m. because, well, the two of you were, uh, inspecting the mattress, let’s say.

The maître d’ quietly informs you that your reservation has been given away. You cannot get upset; you let the clock run out. Can the same thing happen to reserved issues regarding spousal support in a divorce?

Yes, under Code of Virginia § 20-107.1, but the clock is really a calendar:

… In addition to or in lieu of an award …, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification…

The beginning phrase, “in addition to or in lieu of” is significant. Temporary spousal support can be established with notice to both parties that the subject is reserved for future consideration by the same court.

Consider a marriage of 20 years (the Virginia average). Fifty percent of that marriage is a decade. In this one reserved issue, the lesser-earning spouse could have a ten years to ponder a higher amount, even while receiving “temporary” spousal support all that time.

If you have any doubts about property settlement, work with an experienced attorney who knows all about reserving issues in divorce. The Firm For Men helps Virginia’s men through all family law matters. Contact us today or call us at (757) 383-9184. Meanwhile, enjoy your quail eggs.