Property Division/Alimony (Study the Most) Flashcards
1
Q
System VA uses to divide property
A
Equitable division
2
Q
3 categories of property
A
- Spouse A’s separate property
- Spouse B’s separate property
- Marital assets
3
Q
Separate Property
A
- any property acquired prior to the mrg is that spouse’s separate property
- any gift or inheritance received after the date of marriage in spouse’s sole name
- Any property acquired after separation
- Pain and suffering component of any tort recovery
- but lost wages and marital expenses are marital
- Passive appreciation of any assets in the above categories
- passive appreciation-appreciation in value due to passage of time and market forces alone
- Remember intangible assets like business Goodwill
4
Q
Division of Property
A
- Each spouse keeps their own separate property
- Marital assets-court is obligated to consider statutory factors to split the property up 50/50, 60/40, etc…
5
Q
Statutory Factors to consider for property division
A
- Age/health of the parties
- including mental health
- Duration of the mrg
- longer the marriage, the more even the split
- Circumstances that contributed to the breakdown of the mrg
- including fault, even if in a no-fault case
- Liquid Assets
- see if it’s easier for one party to have one type of asset and another to have another
- Income of each party
- Who’s getting the kids
- Anything else the court deems fit
- Court can also see who has title to assets and make the party with title to send a check to the other party
6
Q
Property division and debts
A
Debts are divided just like assets
7
Q
Property Division and Alimony
A
prop. division is supposed to be made without regard to alimony
8
Q
How to approach property division questions
A
- Categorize all the assets
- Divide the assets in each category using the rules that govern them
- Pick out separate property first and then you can assume the rest is marital property
9
Q
Alimony
A
- parties can deal with this in their separation agreement or petition the court
- less common, smaller, and for shorter duration in recent years
10
Q
Types of Alimony
A
- lump sum
- age disparity of the spouses and the older spouse is wealthy.
- Payments will stop when older spouse dies, so best to get lump sum
- Periodic payments
- can happen for a set time or indefinitely
11
Q
Types of Divorce where alimony is available
A
- both legal separation and divorce
- court can even grant alimony and not grant divorce
- No alimony for void marriages is available
12
Q
Manditory Alimony factors
A
- Age/health
- Job skills and educational attainment
- Finances of each party
- Taxes
13
Q
Fault-Based Divorce and Alimony
A
- Adultery is an absolute bar to alimony unless denial would result in manifest injustice, e.g. you’d have to apply for welfare
- Other fault bases are not an absolute bar to alimony but can be considered
14
Q
Modification of Alimony
A
- bona fide change in circs
- e.g. change in payor’s ability to pay
- change in recipient’s needs
- retirement is a change in circs per caselaw
- e.g. change in payor’s ability to pay
- can only modify future payments, not past-due ones
15
Q
Termination of Alimony
A
- terminate automatically on death of either party or remarriage of the recipient
- 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