Domestic Relations

Question 1

Settlement Agreement Incorporated into Divorce Decree

Answer 1

A court may affirm, ratify, and incorporate by reference in its decree of divorce any valid agreement between the parties concerning disposition od property and payments for support or maintenance

Effect: If a court does so, the agreement is deemed for all purposes to be a term of the divorce decree and it is enforceable in the same manner as any other provision of the decree

Question 2

Separation Agreement

Question 3

Separation Agreement Incorporated into Divorce Decree

Question 4

Arrearages

Question 5

Modification of Spousal Support

Answer 5

The court will look for bonafide change in circumstances that would justify a modification

A bona fide change in circumstances is a change in the payee’s financial needs beyond the payee’s control, or changes in the payor’s ability to pay beyond the payor’s control

In ruling on a request for modification, the court considers all of the same factors relevant to the intial award of support

Significant hardship and changed circumstances

Question 6

Modification of Spousal Support Factors

Answer 6

The earning capacity and financial obligations of the parties, education and training of the parties, standard of living during the marriage, duration of the marriage, age and mental conditions of the parties, monetary and nonmonetary contributions to the well-being of the family, property interests of the parties, division of marital property at divorce, and other factors such as tax consequences

Question 7

Modification of Child Support

Answer 7

On petition of either parent or on the court’s on motion, the court may: (i) revise and alter a decree concerning care, custody, and maintenance of children; or (ii) make a new decree as required by the circumstances of the parents and benefit of the children

The burden is on the parent petitioning to prove there has been a material change of circumstances that justifies the modification

Question 8

Modification of Child Support Factors/Guidelines

Answer 8

The court must take into account the child support guidelines and the best interests of the child in determining the amount, if any, of a modification

The guidelines are based on the parents combined gross income and the number of children

To deviate from the guidelines, the court must consider all of the factors set out by the statute, including standard of living established during the marriage (if applicable), the financial resources of the parties, the special needs of the child, and the equities of the parents and the child

Question 9

Modification of Child Support Obligor Burden of Proof

Question 10

Contempt

Question 11

Primary Custody

Question 12

Spousal Support

Question 13

Adultery

Question 14

Grounds for Divorce

Defense of Condonation

Question 15

Grounds for Divorce

Defense of Recrimination

Answer 15

Recrimination is a counter charge in a suit for divorce that the complainant has been guilty of an offense constituting a fault-based ground for divorce of the same degree

Both spouses equally guilty

Question 16

Grounds for Divorce

Question 17

Fault-Based Divorce

Question 18

Desertion

Question 19

Abandonment

Question 20

Marital Property

Question 22

Custody

UCCJEA

Jurisdiction

Answer 22

The court that made the initial child custody determination has exclusive, continuing jurisdiction over the matter as long as the child, the child’s parent, or a person acting as a parent continues to live in the state

A court must recognize and enforce the child custody determination of a court of another state if that state’s court exercised jurisdiction in substantial conformity with the UCCJEA

Question 23

Jurisdictional Test under the UCCJEA

Answer 23

Which state is the child’s “home state”

A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months before the custody proceeding began

A court

Question 24

Jurisdiction

Grant a Divorce and Divide Marital Property

Question 26

Full Faith and Credit to Divorce Decree

Question 27

Virginia Equitable Distribution Statute

Answer 27

Each spouse is entitled to keep that spouse’s separate property upon dissolution of the marriage, and the court may not award the separate property of one spouse to the other spouse

Question 28

Marital Property

Answer 28

Any party/spouse can request a division of the parties’ marital property acquired while parties were married

Includes all property titled in the names of both parties and all other property acquired by each party during the marriage, unless there is a showing that the property is separate

Property is presumed to be marital property if it is jointly owned, unless there is a title, deed, or other clear indication that it is not jointly owned

The court may: order the transfer of the marital property, or any interest therein, to one of the parties; permit one party to purchase the interest of the other in the property, assuming any indebtedness secured by the property; or order the sale of the property by private or public means

What are the facts and call of question?

Question 29

Separate Property

Answer 29

Defined as (i) property acquired before the marriage; (ii) property acquired during the marriage by gift or inheritance; (iii) property acquired during the marriage in exchange for separate proeprty, provided the property is maintained as separate property; and (iv) property acquired after the last separation of the parties

Separate property may be transmuted into marital property where there is an appreciation in the value of the property due to active efforts of either party during the marriage *(next flashcard)

Question 30

Separate Property Transmutation

Answer 30

Under VA law, separate property may be transmuted into marital property when there is appreciation in the value of the property due to the active efforts of either of the parties during the marriage

The burden is on the owner-spouse to demonstrate whether the increase in property value was passive or active

Question 31

Separate Property Appreciation

Answer 31

The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions

The personal efforts of either party must be significant and result in substantial appreciation of the separate property to be attributed to a marital property outcome (or to become marital property)

The party arguing interest in separate property to become marital property has the burden of showing that personal efforts of either party were significant and resulted in substatial appreciation of separate property

What does the facts show?

Question 32

“Sources of Fund” Doctrine

Answer 32

Property may be both marital and separate under this doctrine

For example, marital property and separate property are commingled by contributing one category of property to another, resulting in the los of the identity of the contributed property; transmutation occurs

However, to the extent that the contributed property is traceable by a preponderance of the evidence and was not a gift, the contributed property retains its original classification

Question 33

Classification of Property by Court

Answer 33

To classify all or a portion of property as separate and not marital, the court must look into the circumstances to trace the spouse’s contribution back to separate property

In VA, depositing separate funds into a joint account does not preclude tracing

Question 34

Gift

Answer 34

A gift is a voluntary transfer of property by one to another without consideration or compensation; its requirements are donative intent, delivery, and acceptance of the gift

Question 35

Adoption

Question 36

Common Law Marriage In Virginia

Question 37

Determination of Spousal Support Award

Factors

Question 38

Ex Parte Divorce

Question 39

Child Support

Bilateral Divorce

Question 40

Doctrine of “Divisible Divorce”

Question 41

Child Support

Question 42

Parent Generosity Rule

Question 43

Enforcement of Support

Answer 43

Courts have several methods of enforcing support payments, including withholding from earnings, interception of tax refunds, and criminal prosecution

Contempt of court which can result in a fine or incarceration, is generally used when a party has disregarded the authority of the court

Question 44

Termination of Spousal Support