A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your divorce lawyers should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Evicted spouse waived ability to equitably distribute house
By Virginia Lawyers Weekly – 9/30/2025
A Circuit Court lacked jurisdiction to consider a spouse’s claim to the marital home because they brought the action more than 21 days after the entry of their divorce order, the Court of Appeals of Virginia has held.
The parties were granted a divorce based on a handwritten agreement stating that all marital assets had been equitably distributed. But the marital home was in the wife’s father’s name, who then evicted the husband. A Circuit Court ordered the house sold and the proceeds distributed.
However, Judge Daniel E. Ortiz said the Circuit Court had lost jurisdiction to equitably distribute the parties’ marital assets under Virginia Code § 20-107.3 by the time the husband filed their claim.
“It is undisputed both that the court did not retain jurisdiction and that [the husband] failed to ‘challenge [the 2019 divorce order] in the Circuit Court within 21 days of its entry,’” the judge wrote.
“Accordingly, because the present action sought the equitable distribution of marital property, and because the court’s jurisdiction to do so had expired, the court erred by failing to dismiss [the husband’s] claim,” Ortiz concluded.
Senior Judge Rosemarie Annunziata and Judge Stuart A. Raphael joined Ortiz in vacating the Circuit Court’s judgment in Gonzalez v. Sarmiento (VLW 025-7-247).
‘A matter of equity’
Ronald McCormack, an attorney with offices in Stafford and Vienna, represented the husband at trial.
“My client is from Bolivia and didn’t speak English well, unlike his wife, who told him not to worry when he signed the separation agreement,” he said.
“This is a matter of equity, considering all the work my client did and their original intention when deeding the house to the wife’s father,” McCormack said. “He didn’t have a green card at the time and felt like he had a gun to his head in the divorce. My client wasn’t overreaching or asking that his ex-wife be given nothing, and the evidence showed that he contributed probably two-thirds of their house’s value with sweat equity,” McCormack said.
Although his client obtained a green card and is working, McCormack covered all expert witness fees and did not charge for his time.
“I felt bad for him and thought it wasn’t fair because he is a good father and husband whose wife left to be with another man,” McCormack said.
McCormack’s cancer treatment and a three-month intensive care stay further complicated the case.
“I was pleading with my client from an ambulance not to argue the case alone,” he said. “The hospital released me, and I argued at the hearing with oxygen tanks beside me.”
The law firm representing the appellant did not respond to a request for comment.
The divorce
Roberto Senzano Sarmiento and Sharon Gonzalez married in 2007. They purchased a one-story house in Springfield using their joint savings.
The wife applied for the loan and hers was the only name on the deed of trust; the husband was to be added once he obtained a green card.
The wife’s father, Diomedes Gonzalez, lived in the basement of their house but had no role in its purchase and paid rent. The husband substantially improved the house, which by 2019 was three stories with a finished basement. The husband and wife both contributed financially to the improvements.
Due to a tragic incident involving the death of a child at their home daycare in 2015, the couple conveyed the house to the wife’s father via a deed of gift.
The wife left in 2019 and filed for divorce. The husband stayed in the house along with the couple’s three children and the wife’s father.
The husband and wife signed a handwritten separation agreement stating that the parties’ mutual assets had been equally distributed, each party had their own car and money, and that time with their children was split equally. The agreement did not mention the house.
Incorporating the parties’ pro se handwritten agreement, the Fairfax County Circuit Court entered a final order of divorce on Sept. 30, 2019. In Nov. 2019, the wife’s father evicted the husband from the house via unlawful detainer.
In April 2020, the husband filed suit seeking to establish that the marital home had been held in constructive trust by the wife’s father for the parties’ benefit. The court ultimately ruled in the husband’s favor. Once their motion for reconsideration was denied, the wife appealed.
Ancillary issue
“Equitable distribution is an ‘ancillary issue[]’ in a suit for divorce,” Ortiz explained, citing Friedman v. Smith. “It ‘provide[s] a means to divide equitably the wealth accumulated during and by’ a marital partnership ‘based on the monetary and non-monetary contributions of each spouse,’” he added, looking to Robinson v. Robinson.
Virginia Code § 20-107.3 provides the sole authorization for circuit courts to equitably distribute marital assets during divorce proceedings.
“§ 20-107.3(A) allows a court to ‘bifurcat[e] a divorce proceeding’ by ‘grant[ting] a divorce from the bond of matrimony but explicitly reserve[ing] other matters for future adjudication,’” Ortiz said.
“But this positive grant of authority, by negative implication, also limits the court’s power,” he pointed out. “If the Circuit Court ‘d[oes] not retain jurisdiction in the divorce decree to adjudicate equitable distribution’ in the manner prescribed in subsection (A), its authority to do so expires with the conclusion of the 21-day period following entry of the divorce decree.”
Expired jurisdiction
The husband sought to establish that he and his wife were beneficial owners of their marital home held in constructive trust by her father. Thus, the question was whether the Circuit Court’s jurisdiction to consider the claim expired after 21 days from entry of the 2019 divorce order.
“Although Roberto styled the present claim as a separate action for constructive trust, his prayer for relief fundamentally asked the court to reopen divorce proceedings and ‘adjudicate the remedy provided by [Code § 20-107.3],’” Ortiz said.
By comparing the language of § 20-107.3 to the husband’s request to the court to determine the ownership and value of all marital real property so that he could claim a one-half beneficial interest, the judge said “it is apparent that Roberto sought the ‘process’ of equitable distribution.”
“Based on those ‘equities and . . . interests in the marital property,’ Roberto sought a de facto ‘monetary award’ or distribution equal to one-half of the house’s value,” Ortiz wrote. “Thus, although styled as a separate action against a third-party, at bottom, Roberto’s claim was one seeking equitable distribution of his and Sharon’s marital home.”
The Circuit Court did not specifically determine the ownership interests in the house because the parties did not request equitable distribution in 2019.
“[I]ndeed, they explicitly agreed that ‘all [marital] assets ha[d]’ already ‘been equal[l]y distributed,’” the judge noted.
“But we reiterate, if the court ‘d[oes] not retain jurisdiction in the divorce decree to adjudicate equitable distribution,’ it’s authority to do so expires with the conclusion of the 21-day period following entry of the divorce decree,” he said.
Here, it was undisputed both that the court did not retain jurisdiction and that the husband failed to challenge the 2019 divorce order in the Circuit Court within 21 days of its entry.
“Accordingly, because the present action sought the equitable distribution of marital property, and because the court’s jurisdiction to do so had expired, the court erred by failing to dismiss Roberto’s claim,” Ortiz concluded.
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