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FAMILY LAW:
Divorce
Division of Marital Property
Child Custody
International Child Custody
Interstate Child Custody Jurisdiction
Mediation
Family Law Articles Index
The Law of Divorce
Divorce, custody, child support and alimony are matters of state law. In a divorce, issues of property division, child support, child custody, and alimony are decided by the judge in a trial, or agreed on by the parties in a Separation Agreement, which can be negotiated by their lawyers or in mediation.
Virginia lists several grounds for divorce in its statutes, including (1) adultery; (2) conviction of a felony and sentence to prison; (3) cruelty [usually meaning repeated physical abuse]; (4) desertion at least one year ago; and (5) \"living apart\" , the no-fault ground, which means living apart continuously and permanently for one year (or six months, if you have no children and a Separation Agreement).
While all of these grounds for divorce are recognized as valid by Virginia courts, a divorce is not granted until one of the above grounds is proved to the court. At some point in the divorce process, a hearing or a deposition will take place during which at least one spouse and at least one witness must testify. Even if the grounds for divorce are uncontested, this hearing is a necessary part of the divorce process.The facts of your case, and which city or county you live in, will also affect how long it will take for the divorce process to be completed.
The essential steps in the divorce process are:
(1) The \"Bill of Complaint for Divorce\" is filed by one spouse, who is called \"the Complainant\", and is served on the other spouse, \"the Defendant,\" by a process server, or by the other spouse signing an Answer, a Waiver or an Acceptance of Service, or by other legal means of Process Service.
(2) After the Defendants \"Answer\" is filed, or 21 days have passed without the filing of an answer, the complainant's lawyer can file to have the case referred to a \"commissioner in chancery\" for a hearing on the grounds of the divorce. The commissioner, after hearing the evidence, will file a recommendation that the judge grant a divorce. In some counties, evidence is instead heard by a judge, or in a deposition.
(3) If there is any disagreement on matters of custody, support or property division, these matters must be heard by a trial judge in open court, and decided, before the divorce decree can be signed by the judge. One of the spouses' lawyers drafts the divorce decree and any other court orders.
(4) If there is no dispute about the grounds of divorce and everything has been agreed upon, a draft decree is then filed with the judge, who often has law clerks review its wording.
(5) When the final decree is signed by the judge, the spouses are divorced.
This list of steps is not all-inclusive; it is very brief and provides only a summary of the process involved. Not included is the approximate amount of time between each of the steps or the delays or additional steps that are possible because of specific details of the case, ideas the judge may have, or local rules requiring \"custody education\" and mediation evaluation.
In most cases, negotiation of the divorce settlement not only expedites the process, but also makes it somewhat less expensive. Face-to-face Mediation with both spouses is sometimes used to supplement negotiation. If negotiation or mediation is successful, the resulting \"Separation Agreement\" or \" roperty Settlement\" is legally binding on both parties. At the time of the actual divorce decree it can be presented to the judge and made part of the divorce decree itself, thus becoming a court order, enforceable by the contempt-of-court process if it is violated.
Important to note in considering divorce are the legal costs involved as well as the court costs (such as the court's filing fees, court reporters, and process servers, which are separate from attorney fees). Attorney's fees may be under $1,000 for a totally uncontested, completely simple divorce, or a few thousand dollars for an unusually easy divorce, but more contentious divorces cost tens of thousands of dollars, sometimes hundreds of thousands.
Division of Marital Property in Virginia
The goal of Virginia's system of property division, known as “equitable distribution”, is to fairly divide the couple's marital assets with respect for both their monetary and nonmonetary contributions to the property and to the marriage. All the property issues described below can either be decided by the judge in a court hearing, or, if the spouses agree on them, they can be dealt with in a Separation Agreement drafted by the parties' lawyers.
Spouses who hide, transfer or destroy property to keep the other spouse from getting it in the divorce can be punished for this “dissipation” or “waste”.
Specific procedural requirements for this division have been set by the law:
• The court determines who holds the legal titles and ownership of the property, and sets its value.
• The court classifies all property as marital or separate, or partially each. (Any property that is marital or part-marital property can be distributed through equitable distribution.)
• Taking into account the rights, interests and equities of the parties, the court decides who gets what, and can also order either party to pay a monetary award to the other party.
Any monetary award is based on the value of the property in question. When the court is determining the value of property, the two parties must provide evidence for their claims regarding the value of the property. This evidence is presented to a judge during an equitable distribution hearing.
How Property is Classified: Separate and Marital
The court determines the ownership of all “real and personal property”. This term includes a wide variety of assets, including jewelry, the marital residence, other real estate, bank or credit union accounts, furniture, paintings or other art work, automobiles, business interests, and other types of property managed by both or either spouse during the marriage. Most future income and future assets, except for pensions, are not included in equitable distribution of property.
Virginia considers marital property to be of three basic forms:
• Property acquired by either party during the marriage that is not separate property
• Property that is part marital and part separate.
• Property whose title is held by both parties (however, this still may be proven to be separate or partly separate if it can be traced accurately and fairly to separate property).
Separate property includes:
1. All real and personal property acquired by either party before the marriage
2. All property acquired during the marriage by inheritance or gift from a source other than the other party
3. All property acquired during the marriage in exchange for or from the proceeds of the sale of separate property, provided it is maintained separately
Any income generated from separate property by the active efforts of either party is classified as marital.
Separate property can also become marital property in several ways, including the failure to maintain the property as separate, or commingling with marital property, in a way that is too complex or undocumented to trace back to its source. Assumed in these general rules is that any property gained by either party during the marriage was gained with the knowledge that it would become marital property.
Marital property, however, cannot become the separate property of either party without valid and specific agreements by the parties.
Pensions
Pensions are marital property to the extent that they were earned during the marriage, before separation. The marital share is a percentage, based on a ratio of months of marriage in which they were earned compared to all months of unmarried or separated pension-earning. Courts usually divide the marital share in half. In some cases involving military or foreign service families, special federal laws apply about when courts can divide pensions, and how much each spouse can get. In contrast, when parties settle their cases out of court, they often provide that each will keep their own pension.
Marital Debts
Also divided during the property settlements of a dissolving marriage are the debts the couple, or the separate spouses, have incurred.
Factors included in the court's division of marital debts include:
• The debts and liabilities of each spouse
• The basis for the debts and liabilities of each spouse
• The property used as security for the debts and liabilities of each spouse
The court can apportion and order payment of the parties' debts (either joint or separate) incurred before the dissolution of the marriage using the above factors. However, both spouses remain vulnerable to creditors for all debts incurred during the marriage, unless the creditor is willing to let one spouse refinance after the divorce.
Tax Issues
In Property Division: Virginia statute specifically includes as a factor considered by the court in making its award or in dividing or transferring jointly owned marital property the “tax consequences to each party.” In order for the court to consider the possible effects of tax consequences, the contesting party must offer evidence of the expected tax consequences. These consequences cannot be merely speculative.
Capital Gains Tax: Transfers of property between spouses incident to divorce incur no recognition of gain or loss. The basis of the transferor carries over to the transferee, delaying any immediate tax consequence resulting from an equitable distribution award. This is something to consider when negotiating a division of property.
Alimony generally is deductible from the gross income of the payor spouse and includable in the gross income of the recipient spouse. Several procedural rules govern how the payments must be made in order for these tax allowances to be made. Parties can also elect to exclude the payments from deduction.
Child support is not deductible by the payor, and it is not income for the payee.
Filing joint or separate returns also becomes an issue for spouses during divorce. The dependency exemption and the new per-child tax credit go to the parent who has custody, but a court can order, or the parents can agree in their Separation Agreement, that the other parent will get them both instead. They can be alternated between the parents from year to year, but the exemption and credit for any particular child cannot be split between them in the same year.
Child Custody in Virginia
Disputes regarding child custody must be decided by the court after a full hearing, which can be both expensive and time-consuming. The costs of a custody dispute can include the testimonies and evaluations of child psychiatrists and other witnesses, home visitations by court-employed social workers, the services of a court-appointed attorney known as a Guardian Ad Litem (GAL) for the child, and other similar charges. The court hears a wide range of evidence about the parents' abilities and the child's needs before deciding what is in the \"best interests of the child\". Child custody jurisdiction can be an important facet of some custody cases. The <FONT face=\"Helvetica\">Virginia Child Custody Statute</FONT> is the standard used in determining child custody. (See also International and Interstate Child Custody Jurisdiction.) Return to Crouch & Crouch homepage.
Real Criteria for Deciding a Custody Case
by Richard E. Crouch
Child custody is decided based on \"the best interests of the child\" in Virginia. The real sub-criteria of this decision seem to be essentially these:
1. Where the children are now.
Courts simply do not like to take the responsibility for moving them. The \"inertia factor\" is the strongest of all, as it furnishes an excuse for a disposition that, should it turn out badly, is less likely to be blamed on the judge.
2.Who has had the child for the longest recent period.
A more sophisticated refinement of the \"inertia factor\". The more perceptive judges will discount very-recently-acquired \"possession\" of the children, so as to avoid endorsing the view that possession is 9/10ths of custody law.
3. Specific nurturing responsibilities and involvements.
Who has done exactly what parenting chores with and for the child over the last few years. This is something easily lied about and hard to prove.
4. Stability.
Evidence of steady, even temper and dull predictability is helpful. Long tenure in one residence and one job is very helpful. A series of jobs, or of addresses, hurts.
5. Possession of former family home .
This is helpful, as it affords the children some continuity. It counts more if the children have not left it.
6. Unselfishness, or ability to place the child's needs first.
We have recently come through a decade that glorified selfishness, and invented scores of euphemisms for it, but it is a quality that judges frequently zero in on - especially in the all-too-frequent case where the parents seem equally fit and a tie-breaker is needed. Many close custody decisions today turn on which parent demonstrated a tendency to place other interests -- usually career or new romantic relationships -- ahead of the child.
7. New romantic relationships.
Usually important only as noted above (in 4 and 6). Also, there is a definite line between the mere taking on of a new partner -- which is usually approved as showing a healthy realism and re-stabilizing influence -- and sexual conduct witnessed by the child. Adultery, fornication or cohabitation in the same household where the child is staying - even if the child does not witness it - is frowned on by judges, and sometimes by the other parent.
8. Employment.
Important as noted above (4). Also, it is better to have employment, though not employment that creates a child-care problem. The parent having a job with flexible hours and near the child has a definite advantage.
9. Consistent plan for the child.
The parent who wants to win a custody contest should always tell the judge that he or she has a daily plan covering every minute of the day, with no gaps in child care during which the child would be alone somewhere.
10. Tendency to afford full contact with the other parent and foster good relationships between the children and the other parent.
Attacking the other party in a trial shows the judge a poor prognosis as to this point. Thus it should, to the extent it is avoidable, be avoided in favor of showing the advantages of the client retaining custody. You should be able to say something good about the other parent and something disadvantageous about yourself. You will also want to be able to describe what visitation you would want to afford the other parent were you to gain custody, and what visitation you will desire if you are not granted custody.
11. Being the primary caregiver during the child's early years (see #3).
12. Assuring the child's safety.
The parent who can provide the child with a safe and secure neighborhood, a safe walk to school, fenced yard, detached house, etc., will gain favor in a custody hearing.
13. Continued contact with extended family.
Continued contact with the extended family -- especially grandparents, and more especially the in-law grandparents -- is an important part of ensuring that the best interest of the children is met. Remember, many judges are grandparents themselves.
14. Larger quarters.
Though courts constantly say that they avoid comparing the material advantages, their decisions show that they favor a large home -- particularly one with a separate bedroom for the child.
15. The child's performance and stability while with each parent.
How the child's grades and other measures of performance change when with each parent is important in determining the child's best interests.
16. The child's preference, depending on age.
Above age 13, the judge will probably regard preference as controlling. Age 8-13 judge will probably want to interview a child. Judges may occasionally be curious to meet children ages 6-8 for special reasons. |
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发表于 2005-5-10 20:20:21