Domestic Relations Flashcards
Settlement Agreement Incorporated into Divorce Decree
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
Separation Agreement
Separation Agreement Incorporated into Divorce Decree
Arrearages
Modification of Spousal Support
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
Modification of Spousal Support Factors
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
Modification of Child Support
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
Modification of Child Support Factors/Guidelines
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
Modification of Child Support Obligor Burden of Proof
Contempt
Primary Custody
Spousal Support
Adultery
Grounds for Divorce
Defense of Condonation
Grounds for Divorce
Defense of Recrimination
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
Grounds for Divorce
Fault-Based Divorce
Desertion
Abandonment
Marital Property
Custody
UCCJEA
Jurisdiction
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
Jurisdictional Test under the UCCJEA
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
Jurisdiction
Grant a Divorce and Divide Marital Property
Full Faith and Credit to Divorce Decree
Virginia Equitable Distribution Statute
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
Marital Property
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?
Separate Property
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)
Separate Property Transmutation
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
Separate Property Appreciation
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?
“Sources of Fund” Doctrine
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
Classification of Property by Court
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
Gift
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
Adoption
Common Law Marriage In Virginia
Determination of Spousal Support Award
Factors
Ex Parte Divorce
Child Support
Bilateral Divorce
Doctrine of “Divisible Divorce”
Child Support
Parent Generosity Rule
Enforcement of Support
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
Termination of Spousal Support
