May accrued rent of the former marital residence kept by husband be treated as waste of a joint asset in equitable distribution proceedings in Virginia?

May accrued rent of the former marital residence kept by husband be treated as waste of a joint asset in equitable distribution proceedings in Virginia?

In the Virginia Circuit Court case of Penza v. Penza, Case No: CL07-92, in the Circuit Court of Rappahannock County, the divorce court judge held that the accrued rent that was kept by the husband, who was not occupying the property and did not intend to retain it, was waste of a joint asset.

The parties were married for approximately seventeen years.  The husband was the primary breadwinner, earning a substantial income, while wife was a stay at home mom.  Most of the evidence was received by the judge from wife’s divorce lawyer, as husband had represented himself and not well.   The Virginia judge recognized the wife’s attorney for providing the documentation and organizing the material effectively to support a decision. The most valuable asset of the parties was the former marital residence, a single family house valued at $525,000 at the time of the equitable distribution hearing in the divorce case, with a mortgage of $267,000, leaving marital equity of $258,000.  After the parties separated, husband left the marital residence and rented it out to tenants.  The husband collected rent from the property, but did not pay the mortgage, as ordered by the divorce court judge at the pendente lite hearing.  Neither party listed the accrued rent on their schedules of assets.  At the conclusion of the Virginia divorce case, the judge took the matters of equitable distribution, spousal support, child support, and attorney’s fees under advisement, meaning the judge took the matters under consideration, without giving an immediate decision.

In his written opinion, the judge directed that the former marital residence be sold with the equity divided equally between the husband and wife.  If the parties could not agree on a real estate broker, the court appointed a special commissioner of sale to list the property with a broker.  The judge provided that any sales contract would have to be approved by the court.  If the property did not sell within six months, then it would be sold at auction.  The husband was ordered to pay half of the accrued rent in the amount of $10,500 to wife.  All future rents were to be paid to the wife, to be received by her until half the accrued rent was repaid.  Upon full repayment, the wife would then send half the rent each month to husband.

With regard to the personal property, the court ordered that the husband and wife conduct an auction between themselves of all the personal property.  The court would determine the net difference between the sums bid, and divide those equally between the parties, with the parties receiving the items of property after the bidded sums were paid.

With regard to spousal and child support, the Virginia divorce court found that the husband’s monthly income was $18,500, of which he was ordered to pay $4,600 per month to wife as spousal support for seven years, to be reduced by 50% absent a material change in circumstances.  The husband was not required to provide health insurance to wife upon entry of the divorce decree.  The husband was ordered to pay 2,062 a month in child support to wife, with a credit for required health insurance coverage for the two children.

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