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Barrett v. Barrett4/26/2005
371 S.E.2d 569, 573 (1988). However, in classifying property as marital or separate, the trial court must consider "when property is acquired, and, similarly, when debt is incurred . . . ." Stumbo v. Stumbo, 20 Va. App. 685, 692, 460 S.E.2d 591, 595 (1995). Unlike in Booth, wife here incurred attorney's fees after the separation of the parties and after the agreed valuation date set by the trial court.
We conclude the trial court erred in classifying wife's attorney's fees, incurred in the divorce proceedings and after the parties separated, as marital debt. The record reflects that the parties separated on July 21, 2001 and did not thereafter live together as husband and wife. All property, including debt of either party, acquired after July 21, 2001, is presumed to be separate property. Code § 20-107.3(A)(2); Stumbo, 20 Va. App. at 692-93, 460 S.E.2d at 595. Wife conceded that she only incurred the fees to her divorce attorney after the parties separated on July 21, 2001.
If the trial court intended to make a monetary award, it did not say so, and even if did so intend, it would be error to order husband to pay it directly to a third party. In Woolley, this Court made clear that Code § 20-107.3 does not authorize a trial court to make equitable distribution of marital property to a non-party. 3 Va. App. at 341 n.1, 349 S.E.2d at 425 n.1. We conclude that the trial court erred in classifying wife's attorney's fees as marital debt, having incurred them after the July 21, 2001 separation date, and in ordering husband to pay $6,000 of that debt directly to wife's former attorney.
CONCLUSION
We find that the trial court did not abuse its discretion in receiving and considering the testimony of Hayden Dubay and Scott Etherton, or in its equitable distribution of the parties' assets and apportioning the parties' marital debt, except as to its classification of wife's attorney's fees as marital debt. We hold that the trial court erred in classifying wife's attorney's fees, incurred after July 21, 2001, as marital debt and in apportioning $6,000 of that debt to husband for payment. Accordingly, we vacate and dismiss that portion of the final decree of equitable distribution ordering husband to "contribute $6000.00 toward the accumulated attorneys fees owed by [wife], made payable to [wife's] former attorney . . . no later than one year from the date of the entry of the Decree of Equitable Distribution" but otherwise affirm the judgment of the trial court.
Affirmed, in part, and reversed, in part.
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