Domestic Rel. Flashcards
Virginia courts can modify spousal support orders to
increase, decrease, or terminate payment, as the circumstances may make proper, unless the parties contracted otherwise.
when a court modifies a spousal support order, the decree operates
prospectively
To justify a change in spousal support, the court must find an
(i) involuntary and unforeseen, (ii) material change in the parties’ circumstances.
an equity court would need to weigh the evidence to decide whether either party’s change in circumstances warrants
a change—increase or decrease—in the original spousal support award.
Like spousal support awards, child support awards, visitation, and custody agreements can be modified by the issuing court or another court with jurisdiction upon a showing of
a material change in circumstances that was neither voluntary nor foreseeable.
On a parent’s petition, its own petition, or petition of a probation officer or Department of Social Services, the court can modify or make a new decree when
the parents’ circumstances and interests of the children require.
As when granting an original child support award, a Virginia court may deviate from the application of the child support guidelines only after
making a written finding that the application of the guidelines would be unjust or inappropriate based on the relevant evidence of the particular case based upon enumerated statutory factors.
statutory factors for departing from child support guidelines include:
(i) the special needs of the child resulting from any physical, emotional, or medical condition, (ii) the standard of living the child enjoyed during the marriage, and (iii) the earning capacity, obligations, financial resources, and special needs of each parent.
Willful failure to pay support for a child or spouse is a
criminal misdemeanor.
Upon conviction of failure to pay child support of spousal, the person may be
fined (not exceeding $500), confined in jail not exceeding twelve months, or both.
The purpose of criminal contempt is
to punish an obligor for willful default of the obligations imposed by the court.
In Virginia, judges may issue attachments for contempt, and punish them summarily, for
disobedience of any person to any lawful process, judgment, decree or order of the court, including support awards.
The “best interests of the child” standard governs
awards of custody.
It would be in the best interests of the child to promote
stability and a familiar environment.
court should subordinate childs stated preference to live with a parent to
other factors affecting his welfare.
A parent’s immoral conduct, like adultery, will not affect custody unless
a nexus exists to the child’s well-being.
in determining custody of a child a parents “unmarried” status with a partner
should not affect the court’s custody ruling.
for custody court looks to childs
age, physical and mental condition, and changing developmental needs
for custody court looks to parents
ages and physical and mental condition
Fault by either party must be considered (felony conviction, adultery, desertion, or cruelty) by a Virginia court determining whether
to award spousal support.
No spousal support may be awarded to a spouse who commits adultery, unless
the court determines from clear and convincing evidence that
denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault (payor’s fault) and their relative economic circumstances (extreme economic disparity).
Marital property is any property that
comes into the marriage unit during the marriage itself
passive appreciation from investments is considered separate property if
the value has increased solely due to the passage of time and market forces.
Because Howard has put assets into his pension over the course of the marriage from his wages and employer matching
this was an active investment which will be split between Howard and Wendy.
Upon divorce, each spouse takes their own separate property, which is:
property acquired prior to the marriage, property acquired after the separation, property inherited by the individual, and passive appreciation from investments.
Virginia courts do not presume an even 50/50 distribution of marital assets and instead
may consider any factor that would be just and reasonable.
The court will award alimony based on need and will generally consider the following factors in making this determination:
earning capacity, education, financial resources, and any other relevant factors.
No spousal support may be awarded to a spouse who commits adultery unless
the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
Under Virginia law, a premarital agreement is enforceable if
1) there was fair and reasonable disclosure of the financial situations of the parties,
2) or a voluntary and written waiver of such disclosure,
3) and the parties voluntarily entered into the agreement.
a premarital agreement must be
1) in writing and
2) signed by both parties and
3) must not be unconscionable
Conditioning the marriage on entering into a premarital agreement
does not constitute duress so as to make the agreement involuntary.
there is no requirement that a party to a prenuptial agreement be
represented by counsel in order to make the agreement enforceable.
representation by counsel may make a prenuptual agreement more likely to be
enforced; but its not required
Under Virginia law, adultery is grounds for
granting the innocent party an absolute divorce with no waiting period.
cruelty constitutes grounds for granting the innocent party
an absolute divorce after a period of one year from the date of the act.
on the grounds of separation without cohabitation only if the husband and wife have lived separate and apart without any cohabitation and without interruption for one year
an absolute divorce may be decreed
If the parties have entered into a separation agreement and they do not have minor children, an absolute divorce may be decreed if
the husband and wife have lived separately and apart without cohabitation and without interruption for six months.
willful desertion or abandonment is a ground for granting
the innocent party an absolute divorce after a period of one year from the date of the act.
an absolute divorce (divorce from the bond of matrimony) may be decreed upon the application of either party to a marriage if
the spouses have lived separate and apart without any cohabitation and without interruption for one year.
If a party has filed a suit for divorce based on fault grounds and, while the suit is pending, the parties have satisfied the grounds for a no-fault absolute divorce, a Virginia statute specifically recognizes that either party may petition the court for
a no-fault absolute divorce, and the statute provides that a party may do so even without seeking leave to amend the bill of complaint or cross-bill.
when multiple grounds exist for divorce, the ground upon which a divorce will be granted is
within the discretion of the trial court.
Generally, the court determines the value of marital property as of the date of
the evidentiary hearing on valuation
the court may order that a different valuation date be used that that of the evidentiary hearing on valuation upon
motion of either party; showing good cause
a portion of the increase in the value of a investment portfolio which is attributable to market forces is deemed
separate property
a portion of investment portfolio increased value due to management efforts of financial advisor, prior to divorce is
marital property and subject to equitable distribution
While marital property is subject to equitable distribution by the court as one aspect of an absolute divorce, separate property
is not
Separate property includes
1) real and personal property acquired by a party before marriage
2) income from and the increase in value of separate property
3) for reasons “not attributable to the personal efforts of either party,” such as passive appreciation in the property’s value.
When separate property increases in value due to the personal efforts of either party or contributions of marital property, the increase will be
1) marital property, subject to equitable distribution,
2) if those personal efforts contributed to the increase in value, were significant, and resulted in substantial appreciation.
Personal effort includes
labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional, or marketing activity directly applied to the separate property.
when separate property increases in value
Only the increase in value is subject to equitable distribution; the original value of the property remains separate property.
The non-owner spouse has the burden of proof to show
that contributions of marital property or personal effort were made and the separate property increased in value.
The burden then shifts to the owner spouse to show that
the increase in property value was not caused by personal efforts or contributions of marital property.
In Virginia, the trial court, in disposing of a request for spousal support, must consider 13 factors set forth by statute, including, but not limited to
1) the obligations, needs, and financial resources of the parties,
2) their standard of living established during the marriage,
3) the duration of their marriage,
4) the property interests of the parties,
5) each party’s contributions to the family, 6) the earning capacity of each party,
7) the provisions made regarding marital property, etc.
fault by either party must be considered when determining whether to
award spousal support
No spousal support may be awarded to a spouse who
commits adultery, sodomy, or buggery outside the marriage unless the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
in a contested case, any order granting, reserving, or denying a request for spousal support must be accompanied by
written findings and conclusions of the court identifying the statutory factors that support the court’s order and provide an explanation of its resolution of any significant underlying factual disputes.
if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree
no decree ordering spousal support and maintenance or imposing any monetary or nonmonetary condition can be made except in accordance with that stipulation or contract.
because spouse’s adultery was established at trial, the court was required to
deny guilty party spousal support unless there was clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
if an award is challenged on appeal, and the award was not articulated by the court in writing, the appellate court would most likely
remand the case to the trial court to articulate its findings and reasoning
Both parents, regardless of marital status, are legally required
to support their minor children.
Parents cannot bargain away
child support payments
while parents can enter into private agreements regarding the payments, they cannot
agree to any release or compromise that would negatively affect the child’s welfare
Virginia has adopted the income-shares method of computing
the amount of child support each parent must bear.
under the income shares method for calculating child support payments
The total monthly child support amount is divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income.
In calculating a parent’s gross income, generally all income from all sources is considered, including
spousal support
There is a rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines
is correct
A court may deviate from the application of the child support guidelines only after
making a written finding that the application of the guidelines would be unjust or inappropriate.
Although an amount is attributed to each parent
only the non-custodial parent actually pays the support amount.
In Virginia, professional goodwill is considered
marital property subject to division upon divorce
In Virginia, professional degrees and licenses are
not property to be divided, even if they were attained during the marriage.
residential property inherited by a spouse is
separate property, not subject to division upon divorce
A Virginia court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if Virginia
(i) is the child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or
(ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
“Home state” is the state in which a child
lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.
absence of a marital relationship between a child’s parents, does not affect
the parental rights of the father, provided he can establish parentage
As part of the equitable distribution of marital property, a Virginia court may
1) order the transfer of jointly owned marital property, or any interest therein, to a party,
2) permit one party to buyout the other’s interest and assume any mortgage or indebtedness secured by that property,
3) or order the sale of the property.
Equitable distribution is a _____-step process
four step process
under the equitable distribution four step process the court determines:
(i) determines the ownership and worth of all property,
(ii) determines whether all property is marital or separate, or what portion is part-marital or part-separate,
(iii) uses the statutory factors to determine how to divide the marital property, and
(iv) awards jointly owned marital property and debts to each spouse and, if appropriate, grants a monetary award (payable in lump sum or periodically) to one spouse to obtain the desired percentage split after it transfers the marital property.
the monetary award granted to one spouse (to obtain the desired percentage split after it transfers the partial property) comes out of
the non-jointly owned marital property
Generally, a court’s equitable distribution award is considered
final and may not be later modified or re-opened.
Virginia courts can modify spousal support orders to increase, decrease or terminate payment, upon the petition of either party, as the circumstances may
make proper, unless the parties contracted otherwise.
Spousal support terminates upon
the remarriage of the supported spouse, death of the supported spouse, or death of the paying spouse, unless the parties stipulate or agree otherwise.
Spousal support will also terminate if
the supported spouse habitually cohabits with another in a marriage-like relationship when shown by clear and convincing evidence, unless:
(i) the parties stipulated or agreed otherwise, or
(ii) the supported spouse proves by a preponderance of the evidence that termination would be unconscionable.
cohabitation by the payee spouse does not automatically
terminate spousal support, since it is not remarriage.
Child support awards, visitation, and custody agreements can be modified by the issuing court or another court with jurisdiction upon a showing of
a material change in circumstances that are neither voluntary nor foreseeable
Child support awards, visitation, and custody agreements can be modified or new decree made upon petition by
parent’s, its own petition or petition of a probation officer or Department of Social Services
On a parent’s petition, its own petition or petition of a probation officer or Department of Social Services, the court can modify or make a new decree when
the parents’ circumstances and interests of the children require.
The new decree operates only
prospectively.
As when granting an original child support award, a Virginia court may deviate from the application of the child support guidelines only after
making a written finding that the application of the guidelines would be unjust or inappropriate based on the relevant evidence of the particular case based upon enumerated statutory factors.
