Domestic Relations Flashcards
From Fault to No-Fault Divorce?
If a party has filed for divorce based on fault grounds and, while the suit is pending, the parties have satisified the grounds for a no-fault absolute divorce, either party may petition the court for a no-fault absolute divorce && the party may do so even without seeking leave to amend the bill of complaint or cross-bill.
Multiple Grounds for Divorce?
When multiple grounds for divorce exist, the ground upon which a divorce will be granted is within the discretion of the trial court.
Separate Property
Real and personal property acquired by a party before marriage as well as income from and the increase in value of separate property for reasons “not attributable to the personal efforts of either party,” such as passive appreciation in the property’s value
Evidentiary Hearing on Valuation
Court determines the value of marital property as of the date of the evidentiary hearing on valuation. Upon showing of good cause, the court may order that a different valuation date be used.
Separate to Marital Property
If the increases in value are significant and result in substantial appreciation due to the personal efforts of either party or contributions of marital property, the increase will be marital property, subject to equitable distribution.
Define Personal Effort
Labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional. or marketing activity directly applied to the separate property
Burden of Showing Value Increase
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. Burden then shifts to the owner to show that the increases were not caused by personal efforts or contributions of marital property.
Findings of Spousal Support Award
If disposing of a request for spousal support, the court must make written findings and conclusions identifying the statutory factors that support the court’s order and provide an explanation of its resolution of any significant underlting factual disputes
Factors for Disposing of a Spousal Support Request
- Obligations, needs and financial resources of hte parties
- Parties standard of living established during hte marriage
- Duration of their marriage
- Property interests of the parties
- Each party’s contributions to the family
- Earning capacity of each party
- Provisions made regarding marital property
Fault by either party must be considered when determining whether to award spousal support
Guilty Spouse Spousal Support Prohibition
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
Guilty Spouse Spousal Support Prohibition - Grounds?
Adultery need not be the grounds upon which divorce is granted for this prohibition to apply
Support Agreements
If a stipulation or contract signed by a 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 non-monetary condition can be made except in accordance with that stipulation or contract
Child Support
Both parents, regardless of marital status, are leglly required to support their minor children. Cannot bargain away child support payments and cannot release or compromise that would negatively affect the child’s welfare
Arrearages
Will be assessed for court ordered awards, or for contractual obligations, or as the parties have agreed and reduced to writing, when the payor has not paid support accordingly
Oral Modification of Support
Must be reduced to writing and should probably get a new court order
Hardship must be proved by:
a material change of circumstances
Contempt for not paying child/spousal support?
Contempt is appropriate to enforce a direct court order and allows for fines and incarceration as the court deems appropriate when a willful disregard has been shown for the authority of the court
