Local VA Attorneys Cite Foreign Law in Divorce Case

ALEXANDRIA, Va., Oct. 1, 2013 /PRNewswire/ -- The Court of Appeals of Virginia, in a case of first impression, upheld the Fairfax County Circuit Court's decision to allow the return of pendente lite spousal support paid during proceedings for divorce and annulment after the Circuit Court found that the parties' marriage was void ab initio on the grounds of bigamy. 

Appellee Hamid Moghal was represented by Thomas Silis and Jessica Strock of the law firm Silis & Associates.  In an unpublished opinion written by Chief Judge Walter Felton, Jr., the Court of Appeals of Virginia held that a trial court may, at its discretion, order the return of support ordered to be paid by one spouse for the temporary support of the other spouse during the pendency of a trial.  Under Va. Code Section 20-103(A), a trial court has discretion to award pendente lite (temporary) spousal support at the outset of proceedings for divorce, annulment, or separate maintenance.  In this case, the Court of Appeals examined whether a trial court has the additional ability to order the return of temporary support when the trial court finds, after having the benefit of a trial on the merits, that such support was not appropriate.  The Court of Appeals concluded that once the trial court found the parties' marriage to have been void ab initio – that is, void from the start, as compared with voidable through legal proceedings – and thus that the marriage conferred no legal rights on wife, the trial court was within its discretion to order the return of support paid pendente lite.  

On brief, Appellant argued first that the trial court was without jurisdiction to order the return of temporary support because the request for the return of support was not made until nine months after the entry of the Order of Annulment.  The Court of Appeals ruled that the Order of Annulment was interlocutory, as was indicated on the face of the Order and thus that the trial court was not divested of jurisdiction over the case when Ms. Naseer appealed the Order of Annulment (Naseer I).

Appellant argued second that the trial court erred in ordering the return of pendente lite support because the trial court only had the ability to order the payment, and not the return, of temporary support.  The Court of Appeals pointed to Va. Code Section 20-103, which states that an award of temporary support has no presumptive effect because the trial court must make such an order before hearing the merits of a case.  Thus, the Court of Appeals held that once the trial court has heard the merits of a case, the trial court has the discretion to order the return of pendente lite support based on its findings at trial.  In this case, the trial court did not abuse its discretion because it was proven at trial that the parties were never married, due to wife's bigamy, and thus the legal right of marriage, including the right to pendente lite support, were never conferred upon either party. 

The Court of Appeals has decided similar cases, but this particular fact pattern was a case of first impression.  In its decision, the Court cited Shoustari v. Zamani, in which it previously held that parties to a void ab initio marriage are not entitled to spousal support because such a marriage confers no legal rights on the parties.  39 Va. App. 517 (2002).  The Court has also found that the decision of whether to award pendente lite support is within the discretion of the trial court.  Henderson v. Henderson, 187 Va. 121 (1948).  In the Moghal decision, the Court relied on its findings in these and similar cases to hold that the return of pendente lite support is within the discretion of the trial court, and that the trial court did not abuse its discretion in ordering the return of support where the marriage was void on the grounds of bigamy.

Silis & Associates is a law firm with offices located in Alexandria and Fairfax, Virginia, representing clients in domestic relations and criminal matters throughout northern Virginia, Washington, DC, and Maryland.

Media Contact: Brandi Hashem, 703-706-0075

SOURCE Silis & Associates, PLLC