Modification of Spousal Support and Premarital Agreement Law in Virginia
Full Question:
Answer:
The following are Virginia statutes:
§ 20-103. Court may make orders pending suit for
divorce, custody or visitation, etc.
A. In suits for divorce, annulment and separate maintenance, and in
proceedings arising under subdivision A 3 or subsection L of § 16.1-241,
the court having jurisdiction of the matter may, at any time pending a
suit pursuant to this chapter, in the discretion of such court, make any
order that may be proper
(i) to compel a spouse to pay any sums necessary
for the maintenance and support of the petitioning spouse, including an
order that the other spouse provide health care coverage for the
petitioning spouse, unless it is shown that such coverage cannot be
obtained,
(ii) to enable such spouse to carry on the suit,
(iii) to
prevent either spouse from imposing any restraint on the personal liberty
of the other spouse,
(iv) to provide for the custody and maintenance of
the minor children of the parties, including an order that either party
provide health care coverage for the children,
(v) to provide support,
calculated in accordance with § 20-108.2, for any child of the parties to
whom a duty of support is owed and to continue to support any child over
the age of 18 who meets the requirements set forth in subsection C of
§ 20-124.2,
(vi) for the exclusive use and possession of the family
residence during the pendency of the suit,
(vii) to preserve the estate
of either spouse, so that it be forthcoming to meet any decree which may
be made in the suit, or
(viii) to compel either spouse to give security
to abide such decree.
The parties to any petition where a child whose
custody, visitation, or support is contested shall show proof that they
have attended within the 12 months prior to their court appearance or
that they shall attend within 45 days thereafter an educational seminar
or other like program conducted by a qualified person or organization
approved by the court except that the court may require the parties to
attend such seminar or program in uncontested cases only if the court
finds good cause. The seminar or other program shall be a minimum of four
hours in length and shall address the effects of separation or divorce on
children, parenting responsibilities, options for conflict resolution and
financial responsibilities. Once a party has completed one educational
seminar or other like program, the required completion of additional
programs shall be at the court's discretion. Parties under this
section shall include natural or adoptive parents of the child, or any person
with a legitimate interest as defined in § 20-124.1. The fee charged a
party for participation in such program shall be based on the party's
ability to pay; however, no fee in excess of $50 may be charged. Whenever
possible, before participating in mediation or alternative dispute
resolution to address custody, visitation or support, each party shall
have attended the educational seminar or other like program. The court
may grant an exemption from attendance of such program for good cause
shown or if there is no program reasonably available. Other than
statements or admissions by a party admitting criminal activity or child
abuse, no statement or admission by a party in such seminar or program
shall be admissible into evidence in any subsequent proceeding.
B. In addition to the terms provided in subsection A, upon a showing by
a party of reasonable apprehension of physical harm to that party by such
party's family or household member as that term is defined in § 16.1-228,
and consistent with rules of the Supreme Court of Virginia, the court may
enter an order excluding that party's family or household member from the
jointly owned or jointly rented family dwelling. In any case where an
order is entered under this paragraph, pursuant to an ex parte hearing,
the order shall not exclude a family or household member from the family
dwelling for a period in excess of 15 days from the date the order is
served, in person, upon the person so excluded. The order may provide for
an extension of time beyond the 15 days, to become effective
automatically. The person served may at any time file a written motion in
the clerk's office requesting a hearing to dissolve or modify the order.
Nothing in this section shall be construed to prohibit the court from
extending an order entered under this subsection for such longer period
of time as is deemed appropriate, after a hearing on notice to the
parties. If the party subject to the order fails to appear at this
hearing, the court may extend the order for a period not to exceed six
months.
C. In cases other than those for divorce in which a custody or
visitation arrangement for a minor child is sought, the court may enter
an order providing for custody, visitation or maintenance pending the
suit as provided in subsection A. The order shall be directed to either
parent or any person with a legitimate interest who is a party to the
suit.
D. Orders entered pursuant to this section which provide for custody or
visitation arrangements pending the suit shall be made in accordance with
the standards set out in Chapter 6.1 (§ 20-124.1 et seq.) of this
title. Orders entered pursuant to subsection B shall be certified by the clerk
and forwarded as soon as possible to the local police department or
sheriff's office which shall, on the date of receipt, enter the name of
the person subject to the order and other appropriate information
required by the Department of State Police into the Virginia crime
information network system established and maintained by the Department
of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If
the order is later dissolved or modified, a copy of the dissolution or
modification shall also be certified, forwarded and entered in the system
as described above.
E. An order entered pursuant to this section shall have no presumptive
effect and shall not be determinative when adjudicating the underlying
cause.
§ 20-107.1. Court may decree as to maintenance and
support of spouses.
A. Pursuant to any proceeding arising under subsection L of § 16.1-241
or upon the entry of a decree providing
(i) for the dissolution of a
marriage,
(ii) for a divorce, whether from the bond of matrimony or from
bed and board,
(iii) that neither party is entitled to a divorce, or (iv)
for separate maintenance, the court may make such further decree as it
shall deem expedient concerning the maintenance and support of the
spouses. However, the court shall have no authority to decree maintenance
and support payable by the estate of a deceased spouse.
B. Any maintenance and support shall be subject to the provisions of
§ 20-109, and no permanent maintenance and support shall be awarded
from a spouse if there exists in such spouse's favor a ground of divorce
under the provisions of subdivision (1) of § 20-91. However, the
court may make such an award notwithstanding the existence of such ground
if the court determines from clear and convincing evidence, that a denial
of support and maintenance would constitute a manifest injustice, based
upon the respective degrees of fault during the marriage and the relative
economic circumstances of the parties.
C. The court, in its discretion, may decree that maintenance and
support of a spouse be made in periodic payments for a defined duration,
or in periodic payments for an undefined duration, or in a lump sum
award, or in any combination thereof.
D. In addition to or in lieu of an award pursuant to subsection C, the
court may reserve the right of a party to receive support in the future.
In any case in which the right to support is so reserved, there shall be
a rebuttable presumption that the reservation will continue for a period
equal to 50 percent of the length of time between the date of the
marriage and the date of separation. Once granted, the duration of such a
reservation shall not be subject to modification.
E. The court, in determining whether to award support and maintenance
for a spouse, shall consider the circumstances and factors which
contributed to the dissolution of the marriage, specifically including
adultery and any other ground for divorce under the provisions of
subdivision (3) or (6) of § 20-91 or § 20-95. In determining the
nature, amount and duration of an award pursuant to this section, the
court shall consider the following:
1. The obligations, needs and financial resources of the parties,
including but not limited to income from all pension, profit sharing or
retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and
any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special
circumstances of any child of the parties would make it appropriate that
a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to
the well-being of the family;
7. The property interests of the parties, both real and personal,
tangible and intangible;
8. The provisions made with regard to the marital property under
§ 20-107.3;
9. The earning capacity, including the skills, education and training
of the parties and the present employment opportunities for persons
possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved
for a party to acquire the appropriate education, training and employment
to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education
and parenting arrangements made by the parties during the marriage and
their effect on present and future earning potential, including the
length of time one or both of the parties have been absent from the job
market;
12. The extent to which either party has contributed to the attainment
of education, training, career position or profession of the other
party; and
13. Such other factors, including the tax consequences to each party,
as are necessary to consider the equities between the parties.
F. In contested cases in the circuit courts, any order granting,
reserving or denying a request for spousal support shall be accompanied
by written findings and conclusions of the court identifying the factors
in subsection E which support the court's order. If the court awards
periodic support for a defined duration, such findings shall identify the
basis for the nature, amount and duration of the award and, if
appropriate, a specification of the events and circumstances reasonably
contemplated by the court which support the award.
G. For purposes of this section and § 20-109, "date of separation"
means the earliest date at which the parties are physically separated and
at least one party intends such separation to be permanent provided the
separation is continuous thereafter and "defined duration" means a period
of time
(i) with a specific beginning and ending date or
(ii) specified
in relation to the occurrence or cessation of an event or condition other
than death or termination pursuant to § 20-110.
H. Where there are no minor children whom the parties have a mutual
duty to support, an order directing the payment of spousal support,
including those orders confirming separation agreements, entered on or
after October 1, 1985, whether they are original orders or modifications
of existing orders, shall contain the following:
1. If known, the name, date of birth and social security number of each
party and, unless otherwise ordered, each party's residential and, if
different, mailing address, residential and employer telephone number,
driver's license number, and the name and address of his employer;
however, when a protective order has been issued or the court otherwise
finds reason to believe that a party is at risk of physical or emotional
harm from the other party, information other than the name of the party
at risk shall not be included in the order;
2. The amount of periodic spousal support expressed in fixed sums,
together with the payment interval, the date payments are due, and
the date the first payment is due;
3. A statement as to whether there is an order for health care
coverage for a party;
4. If support arrearages exist, (i) to whom an arrearage is owed and
the amount of the arrearage, (ii) the period of time for which such
arrearage is calculated, and (iii) a direction that all payments are to
be credited to current spousal support obligations first, with any
payment in excess of the current obligation applied to arrearages;
5. If spousal support payments are ordered to be paid directly to the
obligee, and unless the court for good cause shown orders otherwise, the
parties shall give each other and the court at least 30 days' written
notice, in advance, of any change of address and any change of telephone
number within 30 days after the change; and
6. Notice that in determination of a spousal support obligation, the
support obligation as it becomes due and unpaid creates a judgment by
operation of law.
§ 20-108. Revision and alteration of such decrees.
The court may, from time to time after decreeing as provided in
§ 20-107.2, on petition of either of the parents, or on its own motion or
upon petition of any probation officer or the Department of Social
Services, which petition shall set forth the reasons for the relief
sought, revise and alter such decree concerning the care, custody, and
maintenance of the children and make a new decree concerning the same, as
the circumstances of the parents and the benefit of the children may
require. The intentional withholding of visitation of a child from the
other parent without just cause may constitute a material change of
circumstances justifying a change of custody in the discretion of the
court.
No support order may be retroactively modified, but may be modified
with respect to any period during which there is a pending petition for
modification in any court, but only from the date that notice of such
petition has been given to the responding party.
Any member of the United States Armed Forces Reserves, Virginia
National Guard, or Virginia National Guard Reserves, who files a petition
or is a party to a petition requesting the adjudication of the custody,
visitation or support of a child based on a change of circumstances
because one of the parents has been called to active duty, shall be
entitled to have such a petition expedited on the docket of the court.
§ 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the
court shall consider all evidence presented relevant to any issues joined
in that proceeding. The court's decision shall be rendered based upon the
evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support under
this title or Title 16.1 or Title 63.2, the court shall consider all
evidence presented relevant to any issues joined in that proceeding. The
court's decision in any such proceeding shall be rendered upon the
evidence relevant to each individual case. However, there shall be a
rebuttable presumption in any judicial or administrative proceeding for
child support, including cases involving split custody or shared
custody, that the amount of the award which would result from the
application of the guidelines set out in § 20-108.2 is the correct amount
of child support to be awarded. Liability for support shall be determined
retroactively for the period measured from the date that the proceeding
was commenced by the filing of an action with any court provided the
complainant exercised due diligence in the service of the respondent or,
if earlier, the date an order of the Department of Social Services
entered pursuant to Title 63.2 and directing payment of support was
delivered to the sheriff or process server for service on the obligor.
In order to rebut the presumption, the court shall make written
findings in the order, which findings may be incorporated by reference,
that the application of such guidelines would be unjust or inappropriate
in a particular case. The finding that rebuts the guidelines shall state
the amount of support that would have been required under the
guidelines, shall give a justification of why the order varies from the
guidelines, and shall be determined by relevant evidence pertaining to
the following factors affecting the obligation, the ability of each party
to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family
members;
2. Arrangements regarding custody of the children, including the cost
of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or
voluntarily under-employed; provided that income may not be imputed to
the custodial parent when a child is not in school, child care services
are not available and the cost of such child care services are not
included in the computation and provided further, that any consideration
of imputed income based on a change in a party's employment shall be
evaluated with consideration of the good faith and reasonableness of
employment decisions made by the party;
4. Debts of either party arising during the marriage for the benefit of
the child;
5. Direct payments ordered by the court for maintaining life insurance
coverage pursuant to subsection D, education expenses, or other
court-ordered direct payments for the benefit of the child;
6. Extraordinary capital gains such as capital gains resulting from the
sale of the marital abode;
7. Any special needs of a child resulting from any physical,
emotional, or medical condition;
8. Independent financial resources of the child or children;
9. Standard of living for the child or children established during the
marriage;
10. Earning capacity, obligations, financial resources, and special
needs of each parent;
11. Provisions made with regard to the marital property under § 20-107.3,
where said property earns income or has an income-earning potential;
12. Tax consequences to the parties including claims for exemptions,
child tax credit, and child care credit for dependent children;
13. A written agreement, stipulation, consent order, or decree between
the parties which includes the amount of child support; and
14. Such other factors as are necessary to consider the equities for
the parents and children.
C. In any proceeding under this title or Title 16.1 or Title 63.2 on
the issue of determining child support, the court shall have the
authority to order a party to provide health care coverage, as defined in
§ 63.2-1900, for dependent children if reasonable under all the
circumstances and health care coverage for a spouse or former spouse.
D. In any proceeding under this title, Title 16.1 or Title 63.2 on the
issue of determining child support, the court shall have the authority to
order a party to (i) maintain any existing life insurance policy on the
life of either party provided the party so ordered has the right to
designate a beneficiary and (ii) designate a child or children of the
parties as the beneficiary of all or a portion of such life insurance for
so long as the party so ordered has a statutory obligation to pay child
support for the child or children.
E. Except when the parties have otherwise agreed, in any proceeding
under this title, Title 16.1 or Title 63.2 on the issue of determining
child support, the court shall have the authority to and may, in its
discretion, order one party to execute all appropriate tax forms or
waivers to grant to the other party the right to take the income tax
dependency exemption for any tax year or future years, for any child or
children of the parties for federal and state income tax purposes.
F. Notwithstanding any other provision of law, any amendments to this
section shall not be retroactive to a date before the effective date of
the amendment, and shall not be the basis for a material change in
circumstances upon which a modification of child support may be based.
G. Child support payments, whether current or arrears, received by a
parent for. the benefit of and owed to a child in the parent's custody,
whether the payments were ordered under this title, Title 16.1, or
Title 63.2, shall not be subject to garnishment. A depository wherein child
support payments have been deposited on behalf of and traceable to an
individual shall not be required to determine the portion of deposits
which are subject to garnishment.
§ 20-109. Changing maintenance and support for a spouse;
effect of stipulations as to maintenance and support for a
spouse; cessation upon cohabitation, remarriage or death.
A. Upon petition of either party the court may increase, decrease, or
terminate the amount or duration of any spousal support and maintenance
that may thereafter accrue, whether previously or hereafter awarded, as
the circumstances may make proper. Upon order of the court based upon
clear and convincing evidence that the spouse receiving support has been
habitually cohabiting with another person in a relationship analogous to
a marriage for one year or more commencing on or after July 1, 1997, the
court shall terminate spousal support and maintenance unless (i)
otherwise provided by stipulation or contract or (ii) the spouse
receiving support proves by a preponderance of the evidence that
termination of such support would be unconscionable. The provisions of
this subsection shall apply to all orders and decrees for spousal
support, regardless of the date of the suit for initial setting of
support, the date of entry of any such order or decree, or the date of
any petition for modification of support.
B. The court may consider a modification of an award of spousal support
for a defined duration upon petition of either party filed within the
time covered by the duration of the award. Upon consideration of the
factors set forth in subsection E of § 20-107.1, the court may increase,
decrease or terminate the amount or duration of the award upon finding
that
(i) there has been a material change in the circumstances of the
parties, not reasonably in the contemplation of the parties when the award
was made or
(ii) an event which the court anticipated would occur during
the duration of the award and which was significant in the making of the
award, does not in fact occur through no fault of the party seeking the
modification. The provisions of this subsection shall apply only to suits
for initial spousal support orders filed on or after July 1, 1998, and
suits for modification of spousal support orders arising from suits for
initial support orders filed on or after July 1, 1998.
C. In suits for divorce, annulment and separate maintenance, and in
proceedings arising under subdivision A 3 or subsection L of § 16.1-241,
if a stipulation or contract signed by the party to whom such relief
might otherwise be awarded is filed before entry of a final decree, no
decree or order directing the payment of support and maintenance for the
spouse, suit money, or counsel fee or establishing or imposing any other
condition or consideration, monetary or nonmonetary, shall be entered
except in accordance with that stipulation or contract. If such a
stipulation or contract is filed after entry of a final decree and if any
party so moves, the court shall modify its decree to conform to such
stipulation or contract.
D. Unless otherwise provided by stipulation or contract, spousal
support and maintenance shall terminate upon the death of either party or
remarriage of the spouse receiving support. The spouse entitled to
support shall have an affirmative duty to notify the payor spouse
immediately of remarriage at the last known address of the payor spouse.
§ 20-109.1. Affirmation, ratification and incorporation
by reference in decree of agreement between parties.
Any court may affirm, ratify and incorporate by reference in its decree
dissolving a marriage or decree of divorce whether from the bond of
matrimony or from bed and board, or by a separate decree prior to or
subsequent to such decree, or in a decree entered in a suit for annulment
or separate maintenance, and in a proceeding arising under subsection A 3
or L of § 16.1-241, any valid agreement between the parties, or
provisions thereof, concerning the conditions of the maintenance of the
parties, or either of them and the care, custody and maintenance of their
minor children, or establishing or imposing any other condition or
consideration, monetary or nonmonetary. Provisions in such agreements for
the modification of child support shall be valid and enforceable. Unless
otherwise provided for in such agreement or decree incorporating such
agreement, such future modifications shall not require a subsequent court
decree. This section shall be subject to the provisions of § 20-108.
Where the court affirms, ratifies and incorporates by reference in its
decree such agreement or provision thereof, it shall be deemed for all
purposes to be a term of the decree, and enforceable in the same manner as
any provision of such decree. The provisions of this section shall apply
to any decree hereinbefore or hereinafter entered affirming, ratifying
and incorporating an agreement as provided herein. Upon the death or
remarriage of the spouse receiving support, spousal support shall
terminate unless otherwise provided by stipulation or contract. In any
case where jurisdiction is obtained over a nonresident defendant by order
of publication or by acceptance of service pursuant to § 20-99.1:1, any
properly acknowledged and otherwise valid agreement entered into between
the parties may be affirmed, ratified and incorporated as provided in
this section.
§ 20-110. Maintenance and support for a spouse to cease on remarriage. —
If any former spouse to whom support and maintenance has been awarded
shall thereafter marry, such support and maintenance shall cease as of
the date of such marriage. The spouse entitled to current support shall
have an affirmative duty to notify the payor spouse immediately of such
remarriage. Failure of such spouse to notify the payor shall entitle the
payor to restitution equal to the amount of any current support and
maintenance paid after the date of the remarriage, together with interest
from the date of the remarriage and reasonable attorney's fees and
costs.
§ 20-112. Notice when proceedings reopened. —
When the proceedings are reopened to increase, decrease or terminate
maintenance and support for a spouse or for a child, or to request
additional orders to effectuate previous orders entered pursuant to
§ 20-107.3, the petitioning party shall give such notice to the other party
by service of process or by order of publication as is required by law.
Except as provided by § 20-110, no support order may be retroactively
modified, but may be modified with respect to any period during which
there is a pending petition for modification in any court, but only from
the date that notice of such petition has been given to the responding
party.
§ 20-147. Application.
This chapter shall apply to any premarital agreement executed on or
after July 1, 1986.
§ 20-148. Definitions.
As used in this chapter:
"Premarital agreement" means an agreement between prospective spouses
made in contemplation of marriage and to be effective upon marriage.
"Property" means an interest, present or future, legal or equitable,
vested or contingent, in real or personal property, including income and
earnings.
§ 20-149. Formalities of premarital agreement.
A premarital agreement shall be in writing and signed by both parties.
Such agreement shall be enforceable without consideration and shall
become effective upon marriage.
§ 20-150. Content of agreement.
Parties to a premarital agreement may contract with respect to:
1. The rights and obligations of each of the parties in any of the
property of either or both of them whenever and wherever acquired or
located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease,
consume, expend, assign, create a security interest in, mortgage,
encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution,
death, or the occurrence or nonoccurrence of any other event;
4. Spousal support;
5. The making of a will, trust, or other arrangement to carry out the
provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a
life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations,
not in violation of public policy or a statute imposing a criminal
penalty.
§ 20-151. Enforcement; void marriage. —
A. A premarital agreement is not enforceable if the person against whom
enforcement is sought proves that:
1. That person did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed and, before
execution of the agreement, that person
(i) was not provided a fair and
reasonable disclosure of the property or financial obligations of the
other party; and
(ii) did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial obligations
of the other party beyond the disclosure provided.
B. Any issue of unconscionability of a premarital agreement shall be
decided by the court as a matter of law. Recitations in the agreement
shall create a prima facie presumption that they are factually correct.
C. If a marriage is determined to be void, an agreement that would
otherwise have been a premarital agreement shall be enforceable only to
the extent necessary to avoid an inequitable result.
§ 20-152. Limitation of actions. —
Any statute of limitations applicable to an action asserting a claim
for relief under a premarital agreement is tolled during the marriage of
the parties to the agreement. However, equitable defenses limiting the
time for enforcement, including laches and estoppel, are available to
either party.
§ 20-153. Amendment or revocation of agreement.
After marriage, a premarital agreement may be amended or revoked only
by a written agreement signed by the parties. The amended agreement or
the revocation is enforceable without consideration.
§ 20-154. Prior agreements. —
All written agreements entered into prior to the enactment of this
chapter between prospective spouses for the purpose affecting any of the
subjects specified in § 20-150 shall be valid and enforceable if
otherwise valid as contracts.
§ 20-155. Marital agreements.
Married persons may enter into agreements with each other for the
purpose of settling the rights and obligations of either or both of them,
to the same extent, with the same effect, and subject to the same
conditions, as provided in §§ 20-147 through 20-154 for agreements
between prospective spouses, except that such marital agreements shall
become effective immediately upon their execution. If the terms of such
agreement are
(i) contained in a court order endorsed by counsel or the
parties or
(ii) recorded and transcribed by a court reporter and affirmed
by the parties on the record personally, the agreement is not required to
be in writing and is considered to be executed. A reconciliation of the
parties after the signing of a separation or property settlement agreement
shall abrogate such agreement unless otherwise expressly set forth in the
agreement.