Property Division/Alimony (Study the Most)

Question 1

System VA uses to divide property

Answer 1

Equitable division

Question 2

3 categories of property

Answer 2

1. Spouse A’s separate property
2. Spouse B’s separate property
3. Marital assets

Question 3

Separate Property

Answer 3

1. any property acquired prior to the mrg is that spouse’s separate property
2. any gift or inheritance received after the date of marriage in spouse’s sole name
3. Any property acquired after separation
4. Pain and suffering component of any tort recovery
   
   1. but lost wages and marital expenses are marital
5. Passive appreciation of any assets in the above categories
   
   1. passive appreciation-appreciation in value due to passage of time and market forces alone
6. Remember intangible assets like business Goodwill

Question 4

Division of Property

Answer 4

1. Each spouse keeps their own separate property
2. Marital assets-court is obligated to consider statutory factors to split the property up 50/50, 60/40, etc…

Question 5

Statutory Factors to consider for property division

Answer 5

1. Age/health of the parties
   
   1. including mental health
2. Duration of the mrg
   
   1. longer the marriage, the more even the split
3. Circumstances that contributed to the breakdown of the mrg
   
   1. including fault, even if in a no-fault case
4. Liquid Assets
   
   1. see if it’s easier for one party to have one type of asset and another to have another
5. Income of each party
6. Who’s getting the kids
7. Anything else the court deems fit
8. Court can also see who has title to assets and make the party with title to send a check to the other party

Question 6

Property division and debts

Answer 6

Debts are divided just like assets

Question 7

Property Division and Alimony

Answer 7

prop. division is supposed to be made without regard to alimony

Question 8

How to approach property division questions

Answer 8

1. Categorize all the assets
2. Divide the assets in each category using the rules that govern them
3. Pick out separate property first and then you can assume the rest is marital property

Question 9

Alimony

Answer 9

1. parties can deal with this in their separation agreement or petition the court
2. less common, smaller, and for shorter duration in recent years

Question 10

Types of Alimony

Answer 10

1. lump sum
   
   1. age disparity of the spouses and the older spouse is wealthy.
   2. Payments will stop when older spouse dies, so best to get lump sum
2. Periodic payments
   
   1. can happen for a set time or indefinitely

Question 11

Types of Divorce where alimony is available

Answer 11

1. both legal separation and divorce
2. court can even grant alimony and not grant divorce
3. No alimony for void marriages is available

Question 12

Manditory Alimony factors

Answer 12

1. Age/health
2. Job skills and educational attainment
3. Finances of each party
4. Taxes

Question 13

Fault-Based Divorce and Alimony

Answer 13

1. Adultery is an absolute bar to alimony unless denial would result in manifest injustice, e.g. you’d have to apply for welfare
2. Other fault bases are not an absolute bar to alimony but can be considered

Question 14

Modification of Alimony

Answer 14

1. bona fide change in circs
   
   1. e.g. change in payor’s ability to pay
      
      1. change in recipient’s needs
   2. retirement is a change in circs per caselaw
2. can only modify future payments, not past-due ones

Question 15

Termination of Alimony

Answer 15

1. terminate automatically on death of either party or remarriage of the recipient
2. If the recipient is cohabiting but has not remarried, but if they shack up for at least year, court may terminate alimony at its discretion

Question 16

Failure to Pay Alimony

Answer 16

1. Recipient can file an order to garnish wages
2. Can go after assets
3. Can petition the court to hold the non-paying party in contempt