Economic Rules Flashcards
What is required during for equitable distribution of marital property? What are the 3 types of property? What is the court allowed to distribute?
Must categorize the assets, and then must distribute the assets.
Three categories-
(1) Husbands separate property,
(2) Wife’s separate property, and
(3) Marital property.
The court can distribute only marital property.
What is considered separate property? marital property?
SEPARATE PROPERTY:
(1) any property acquired before the marriage
(2) any gift or inheritance received during the marriage in his/her name (but gifts given in joint name is marital property)
(3) property acquired after date of separation
(4) the pain and suffering component of any tort recovery obtained during marriage
(5) any passive appreciation to items 1-4 (due to market fluctuations) but any appreciation due to the active effort of either party is marital property.
MARITAL PROPERTY: All property titled in both names and everything acquired during marriage that is not separate property.
Does VA have a presumption favoring 50/50 division of marital property?
VA has no presumption favoring a 50/50 division of marital property.
What statutory factors does the court consider when distributing marital property?
- AGE & HEALTH OF TWO SPOUSES: if one spouse is older, is physically ill, then maybe that spouse gets more of the assets;
- DURATION OF THE MARRIAGE: if short, then get what they came in with, if long then maybe 50/50 is best);
- CIRCUMSTANCES CONTRIBUTING TO DISSOLUTION OF MARRIAGE
- WHICH SPOUSE IS THE CUSTODIAL PARENT
- SEPARATE PROPERTY: how much separate property the parties are walking away with;
- DEBTS OF EACH PARTY: look to the debts of each party (some more noble than other - student loan debt vs. gambling debt);
- ANYTHING ELSE THE COURT CONSIDERS JUST
What must the court do to implement the order? Is alimony considered in the property distribution?
To implement the order, court must distribute the assets.
The property distribution is to be without regard to alimony.
When can a court enter temporary alimony? What is this called?
While the suit is pending, the court can enter temporary alimony to reserve the status quo.
Alimony Pendente Lite.
How can a post-judgment alimony award be distributed?
The post-judgment alimony award can be in periodic payments for a defined duration or for an undefined duration, or lump sum, or any combination thereof.
Can a court award maintenance/alimony in a void marriage?
No. Cant award maintenance in a void marriage.
What are the factors that must the court consider when determining alimony/maintenance awards?
- Income of spouses,
- Property division,
- Contributions made to the family (including financial contributions and duties around the household)
- Tax considerations, and
- The other statutory factors used for distributing marital property.
When is alimony an absolute bar?
For adultery, alimony is absolute bar unless unjust.
When can alimony be modified?
Alimony that is periodic in nature can be modified if bona fide change of circumstances.
What are the enforcement mechanisms for child support and spousal support?
- Court enforcement through a judicially ordered payroll deduction of an obligor’s employer. A deduction may be ordered for “good cause shown”
- Court enforcement by holding the obligor in contempt of court + attorneys’ fees
- Department of Social Service can issue administrative orders directing payment. Financial disclosures of the obligor and obligee may be ordered. The obligor’s earnings may be withheld to satisfy current support needs and to liquidate arrearages.
- Garnishment of federal wages
- Support order provisions
How is marital debt apportioned?
Marital debt can be apportioned like marital assets up to the date of the divorce decree.
What can cause changed circumstances for spousal support and maintenance?
Spousal support and maintenance ceases upon:
(1) the death of either party,
(2) the remarriage (even if voidable) of the payee, or (3) the case of spousal support for a defined duration, at the end of that duration.
Spousal support obligations DO NOT CEASE when the payee spouse cohabits with another, but if the cohabitation lasts for a year or more the court will terminate support unless it would be unconscionable.
Changes in the payee’s financial needs that are beyond the payee’s control or changes in the payor’s ability to pay that are beyond that payor’s control constitute bona fide changes in circumstance sufficient to justify modification of spousal support.
Are property agreements between the parties valid? exceptions?
A property agreement between the parties is valid; however, if the agreement is unconscionable or was entered into under duress or because of fraud, it is void.
