A Comparison of the Domestic Relations Laws , , D.C. and

by

Sanford K. Ain, Esquire Ain & Bank, P.C. 1900 M Street, N.W., Suite 600 Washington, D.C. 20036-3565 202-530-3300

The following attorneys at Ain & Bank, P.C. participated significantly in the updating of these materials: Anne Marie Jackson, Robert M. Gottschalk, Rebecca C. Shankman and Tammy Gershoni.

*** Copyright © 2009 by Ain & Bank, P.C.

TABLE OF CONTENTS

This outline is a reference tool only and is intended to point the reader in the direction of applicable case law. It does not purport to be a comprehensive listing of current cases in the relevant jurisdictions. The statutes and cases cited herein are believed to be correct through October, 2009; however, the reader should independently verify any information upon which they intend to rely.

Page No.

Antenuptial Agreements...... 1 Statute ...... 1 Leading Case Law...... 1 Valid Upon Death ...... 1 Valid Upon ...... 1 Requirements for Validity...... 2

Marriage ...... 3 License Required ...... 3 Waiting Period ...... 3 Ceremony...... 3 Blood Test, Syphilis Test, AIDS Test...... 3 Children of Void or Voidable Marriages...... 3 Prohibited Marriages...... 4 Minimum Age Without Consent/With Consent ...... 4 Marriage Recognized...... 5 Jurisdiction/Venue ...... 6 Domicile/Residency Requirements...... 6 Grounds for ...... 7

Separation Agreements ...... 8 Public Policy ...... 8 Statute ...... 8 Requirements for Validity...... 9 Effect of Legal Representation ...... 9 Effect of Reconciliation ...... 10 Relationship to Decree and Power of ...... 10 Modification of Payments per Unincorporated PSA ...... 11

Divorce ...... 12 Jurisdiction/Venue ...... 12 Domicile and Residence Requirements ...... 12 Subject Matter Jurisdiction ...... 12 Corroboration of Grounds Requirement ...... 13 Grounds for Absolute Divorce...... 13 Separate Lives Doctrine...... 14 Defenses to Grounds for Absolute Divorce...... 14 Grounds for Limited Divorce or ...... 15

Defenses to Grounds for Limited Divorce or Legal Separation ...... 15 When Divorce Decree Final...... 15 Merger or Enlargement of Limited Divorce ...... 16 Revocation of Limited Divorce ...... 16 Change of Name ...... 16

Spousal Support, and/or Maintenance...... 17 Factors Considered in Arriving at the Amount of Award...... 17 Types of Alimony Awards and Availability...... 18 Termination...... 19 Modification of Court-Ordered Alimony...... 20 Alimony Pendente Lite ...... 22 Separate Maintenance Not an Incident of Divorce...... 22 Uniform Interstate Support Act ...... 22

Distribution of Marital Property...... 23 Jurisdiction...... 23 Procedure ...... 23 Definition of Separate or Non-Marital Property...... 24 Income from or Increase in Value of Separate Property...... 24 Definition of Marital Property ...... 25 Definition of “Family-Use” Property...... 26 Use and Possession of Marital Home ...... 27 Transmutation ...... 28 Wages or Salary Earned by Spouse ...... 28 Pensions ...... 29 Stock Options and Deferred Compensation Benefits ...... 30 Professional Goodwill...... 31 Licenses and Degrees...... 31 Personal Injury Awards/Worker’s Compensation Benefits...... 32 Special Valuation Considerations...... 32 Time of Classification...... 33 Power of Court to Convey Property...... 33 Equitable Distribution Factors ...... 34

Child Support and Maintenance ...... 36 Jurisdiction/Venue ...... 36 Amount of Support in General...... 36 Retroactive Support for Initial Support Order ...... 37 Guidelines ...... 37 Factors Considered in Deviating from the Guidelines...... 38 When Terminates ...... 40 Modification Justification ...... 40 Standards for Modification of Court Ordered Child Support ...... 41 Retroactive Modification of Child Support ...... 42 Voluntary Impoverishment ...... 42

ii

Effect of Subsequent Children...... 42 Life or Health Insurance for the Benefit of a Child...... 42

Child Custody and Visitation...... 43 Jurisdiction...... 43 Uniform Jurisdiction Act ...... 43 Factors to be Considered in Making an Award ...... 43 Joint Custody ...... 44 Visitation...... 45 Parental Relocation Issues ...... 47 Custody Modification ...... 48

Attorney’s Fees...... 49 When Available ...... 49 Pendente Lite Awards...... 49

iii

ANTENUPTIAL AGREEMENTS

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

STATUTE Uniform Premarital Agreement None. VA Premarital Agreement Act Act of 1995, DC Code §§46-501 Va. Code §§ 20-147 et. seq. et seq., enacted 1996.

LEADING CASE Burtoff v. Burtoff, 418 A.2d Frey v. Frey, 471 A.2d 705 (Md. v. Smith, 597 S.E.2d 250 LAW 1085 (D.C. 1980); Brice v. 1984) (waiver of alimony in (Va. Ct. App. 2004); Rogers v. Brice, 411 A.2d 340 (D.C. antenuptial agreement not void Yourshaw, 448 S.E. 2d 884 (Va. 1980); Critchell v. Critchell, 746 per se); Herget v. Herget, 573 App. 1994); Carpenter v. A.2d 282 (D.C. 2000). A.2d 798 (Md. 1990); Golden v. Carpenter, 449 S.E.2d 502 (Va. Golden, 695 A.2d 1231 (Md. App. 1994); Batleman v. Rubin, App. 1997); Harbom v. Harbom, 98 S.E.2d 519 (Va. 1957); 760 A.2d 272 (Md. App. 2000). Cumming v. Cumming, 102 S.E. 572 (Va. 1920); Suthor v. Gooch, 244 F. 361 (4th Cir. Va. 1917).

VALID UPON Yes-DC Code § 19-113 (f). Yes- Hartz v. Hartz, 234 A.2d Yes-Va. Code § 20-150. DEATH 865 (Md. 1967).

VALID UPON Yes- Burtoff v. Burtoff, supra. Yes- Frey v. Frey, supra. Yes-Va. Code § 20-150. DIVORCE

1

ANTENUPTIAL AGREEMENTS

REQUIREMENTS (1) In writing and signed by (1) Strict requirement that they (1) In writing and signed by both FOR VALIDITY both parties; DC Code §46-502. are fair and equitable in parties; enforceable without (2) Voluntarily executed by the procurement and result; consideration and effective upon parties; DC Code §46-506 (a) (2) Frank, full and truthful marriage. Va. Code § 20-149. (1). disclosure of all assets; (2) Voluntary execution; Va. (3) Not unconscionable when (3) Must be entered into Code § 20-151(A) (1). executed and before execution voluntarily, freely and with full (3) Conscionable when executed (A) fair and reasonable knowledge of meaning and and fair and reasonable disclosure disclosure of the property or effect. of property and financial financial obligations of the other (4) Independent legal advice; obligations or voluntary and party given, and (B) voluntary (5) Confidential relationship express written waiver of and express waiver, in writing, between the parties. disclosure. Va. Code § 20- of right to disclosure beyond Cannon v. Cannon 384 Md. 537, 151(A)(2). that provided, and (C) adequate 865 A.2d 563 (Md. 2005). (4) Valid marriage knowledge of the property or (if , enforceable financial obligations of the other Antenuptial agreements are only to the extent to avoid an party; DC Code §46-506 (a) (2). evaluated upon the factors inequitable result) Va. Code § 20- (4) Valid marriage or domestic indicated in Hartz, supra. 151(C). partnership (if void marriage or , enforceable only to the extent to avoid an inequitable result – unless the agreement expressly provides it is enforceable in event marriage or domestic partnership later determined void). DC Code §46-507.

2

MARRIAGE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA Yes- DC Code §§ 46-410, 46- Yes- Md. Fam. Law Code §§ 2- Yes - Va. Code §§ 20-13, et seq. 412, 46-416 DC Code §46-418 401, 2-402, 2-403, 2-404, 2-405 LICENSE controls waiver of license REQUIRED requirement. DC Code §46-409. A license to WAITING PERIOD marry shall not be issued until 3 Md. Fam. Law Code § 2-405(d). None. days have elapsed after §20-14.1 (license authorizes application. solemnization of marriage for a period of 60 days from the date of issuance) Yes- DC Code §46-406. CEREMONY Performed by a minister Yes- Md. Fam. Law Code § 2- Yes - Va. Code §§ 20-13 and 20- authorized by Superior Court 406. 23 through 20-26. judge; any judge or justice of Performed by any official of a Performed by minister; person as court of record; the Clerk of the religious order or body authorized by ; judge or Superior Court or such deputies authorized; any clerk; any justice. designated in writing by the deputy clerk authorized. Clerk and approved by the Chief Judge. BLOOD TEST, Yes- DC Code §46-417. Blood SYPHILIS TEST, tests for syphilis. No. No. Information regarding AIDS TEST availability of AIDS testing to be furnished to applicants. Va. Code §§ 20-1 through 20-12: Premarital Syphilis Tests and Examinations Repealed by Act 1984. CHILDREN OF No specific statutory provision. Children of a void marriage Legitimate by statute. VOID OR shall be legitimized in a court Va. Code § 20-31.1. VOIDABLE decree of criminal or civil MARRIAGES annulment, or when a court decrees an absolute divorce on grounds making the marriage void ab initio. Md. Fam. Law Code § 5-202.

3

MARRIAGE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PROHIBITED Yes- DC Code §46-401; § 16- Yes- Md. Fam. Law Code §§ 2- Yes- Va. Code §§ 20-38.1, 20- MARRIAGES 904(d). 201, 2-202, 2-301 45.1, 20-45.2, 20-45.3.

(see also Grounds for Void Ab Initio DC Code §46- Void Ab Initio Void Ab Initio Annulment, infra) 401. Pre-Existing marriage; Marriage where pre-existing Marriage where pre-existing Same sex marriages; marriage; marriage not terminated by Marriages within three degrees Marriage between an ancestor death or divorce; of direct lineal consanguinity or and decedent, brother and sister, Marriage of man and woman within first degree of collateral whether by half blood, whole who are on a detailed list of consanguinity; one or both blood, or , uncle and relations by blood and marriage, parties lacked mental capacity to niece, aunt and nephew, whether as set forth in § 46-401(1) & (2). marry. by half blood or by whole blood; Marriage where parties are under Voidable DC Code §46-403. Voidable age 18 and no consent; (1) Marriage of an idiot or Impotence; Same sex marriage; lunatic; Fraud, coercion or duress; Marriage where there is a lack of (2) Where consent is procured False statement on marriage consent due to mental incapacity by force or fraud; certificate; or infirmity; same sex civil (3) Where either party is Certain relationships by blood or unions. incapable, from physical causes, marriage; from entering into the married Either party 15 and lacked both Voidable state; parental consent and physician's Va. Code § 20-89.1 (4) Where either party is under certificate; Spouse physically or incompetent the age of 16. Either party 16 or 17 and lacked (impotent); either parental consent or Fraudulent marriage; Dean v. District of Columbia, physician's certificate. Either Marriage under duress; 653 A.2d 307 (DC 1995) (intent party under 15 may not marry. Marriage to felon or prostitute; that "marriage" is limited to Pregnant with someone else’s unions between persons of Between a man and a woman child at the time of the marriage. opposite sexes). § 2-201 provides that marriage only between a man and a woman is valid in this state, and this does not abridge fundamental right to marriage, discriminate based upon sex, or otherwise implicate a suspect or quasi suspect class. Conaway v. Deane, 401 Md. 219 (2007)

MINIMUM AGE 18 - DC Code §46-411. 18 - Md. Fam. Law Code § 2- 18 - Va. Code § 20-49. WITHOUT 16 - DC Code §46-403. 301. CONSENT/ WITH 16 - Md. Fam. Law Code § 2- 16 - Va. Code § 20-48. CONSENT 301. Picarella v. Picarella, 20 Md. App. 499, 316 A.2d 826 (1974) (neither void nor voidable).

4

MARRIAGE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

COMMON LAW Yes- v. Britton, 303 No- except that common law No- except that common law MARRIAGE F.2d 408 (DC Cir. 1962). marriages created elsewhere will marriage created elsewhere will RECOGNIZED be recognized. Henderson v. be recognized if consummated in Henderson, 87 A.2d 403 (Md. a state where valid and between 1952). parties not forbidden to marry under Virginia law. Metropolitan Life Ins. Co. v Holding, 293 F. Supp. 854 (E.D. Va 1968); Kelderhaus v. Kelderhaus, 467 S.E. 2d 303 (Va. Ct. App. 1996).

5

MARRIAGE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

JURISDICTION DC Code § 11-1101 (a) (5)-(7): Md. Fam. Law Code § 1-201: Va. Code § 20-96: VENUE Family Court of the District of Md. circuit courts have The has jurisdiction Columbia: Family Court of the jurisdiction to annul the to annul or affirm marriage and Superior Court has original marriage of a resident and to for and claims for jurisdiction over actions for annul any marriage performed in separate maintenance. annulment, or to declare a the State. Dean v. Dean, 146 marriage either void or valid. A.2d 861 (Md. 1958). Venue Va. Code § 8.01-261(19): Venue Venue Preferred venue: Venue not an issue as only one General civil rules apply (1) where parties last cohabited; local court within jurisdiction. regarding venue, CJP § 6-201. or (2) at option of plaintiff, or city where defendant resides; (3) if defendant is not a resident, in county or city where plaintiff resides.

Venue in divorce cases is no longer jurisdictional. Decker v. Decker, 405 S.E.2d 12 (Va. App. 1991).

DOMICILE/ DC Code § 16-902: No express statutory provision. Va. Code § 20-97: RESIDENCY Annulment of marriage One party must be domiciled in REQUIREMENTS performed outside of DC – one and an actual bona fide resident party must be a bona fide of VA for at least six months resident of DC at the preceding the commencement of commencement of the action. the suit.

Legal separation and divorce A member of the Armed Forces require 6 mos. residency of one is deemed to be domiciled and a of the parties bona fide resident of VA if: (1) he/she has been stationed in VA Residence of the parties to and lived with spouse six or more action for annulment of a months next preceding the marriage performed in DC shall commencement of the suit; or (2) not be considered in determining if he/she is stationed in a territory whether such action shall be or foreign country at the time the maintainable. suit is commenced and was domiciled in VA for the six Member of armed services month period immediately residing in DC for a continuous preceding his/her being stationed period of 6 mos. during his or in that territory or country. her period of military service shall be deemed to reside in DC for this purpose only.

6

MARRIAGE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

GROUNDS FOR DC Code § 16-904(d) (1-5): See Prohibited Marriages supra. Va. Code § 20-89.1: ANNULMENT (1) Where either party has a former spouse living and the (a) When marriage is alleged marriage has not been dissolved; void or voidable for any cause (2) Where marriage was specified in Va. Code § 20-13, contracted during the insanity of 20-38.1 or 20-45.1, or by fraud or either party (unless voluntary duress; after of the insanity); [See Prohibited Marriages, supra] (3) Where the marriage was procured by fraud or coercion; (b) Natural or incurable (4) Where either party was impotency of body existing at matrimonially incapacitated at time of marriage; time of marriage without the knowledge of the other and has One party convicted of felony continued to be so incapacitated; prior to marriage without the or knowledge of other; (5) Where either party had not attained age of legal consent Wife pregnant by someone else at (unless there has been voluntary time of marriage without cohabitation after attaining age husband’s knowledge; of legal consent) – but only at suit of underage party. Husband fathered child born to another woman born 10 months after marriage without wife’s knowledge;

Where either party has been a prostitute before marriage without other’s knowledge.

7

SEPARATION AGREEMENTS

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PUBLIC POLICY Settlement agreements are Md. Fam. Law Code § 8-101 Historically Disfavored encouraged to settle the provides that deeds or Separation agreements used as financial arrangements of agreements relating to alimony, devices to facilitate divorce are parties. Lanahan v. Nevius, support, property and personal illegal and void. See Pillow v. 317 A.2d 521 (DC 1974); rights are valid and enforceable. Pillow, 410 S.E.2d 407 (Va. App. Davis v. Davis, 268 A.2d 515 1991); Arrington v. Arrington, 82 (DC 1970); Le Bert-Francis v. S.E.2d 548 (Va. 1954); Ryan v. Le Bert-Francis, 194 A.2d 662 Griffin, 103 S.E.2d 240 (Va. (DC 1963). 1958)

Agreements regarding custody Modern View of children are another matter See Va. Code § 20-155. entirely. Spires v. Spires, 743 Voluntary agreements which A.2d 186 (DC 1999). promote prompt resolution of disputes are favored by public But see § 16-914 (h): policy. Morris v. Morris, 219 “The Court shall enter an order S.E.2d 864 (Va. 1975); Cooley v. for any custody arrangement Cooley, 263 S.E.2d 49 (Va. that is agreed to by both 1980); Shoup v. Shoup 556 unless clear and S.E.2d 783 (Va. Ct. App. 2001); convincing evidence indicates Pillow v. Pillow, supra. that the arrangement is not in the best interest of the minor child.”

STATUTE DC Code § 16-910: Md. Fam. Law Code §8-101, et Va. Code § 20-109.1 and 20-155. Court has power to divide seq. property and debt “in the absence of a valid...post-nuptial agreement…” resolving all property issues.

8

SEPARATION AGREEMENTS

DISTRICT OF COLUMBIA MARYLAND VIRGINIA REQUIREMENTS Good faith; Mutuality; Separation agreements are Separation agreements are valid FOR VALIDITY Voluntariness; No fraud, contracts subject to the same upon execution. Va. Code § 20- duress, concealment or general rules governing creation, 155. overreaching. termination and revision as other Cooper v. Cooper, 472 A.2d contracts. Eckstein v. Eckstein, Separation agreements for the 878 (DC 1984); Davis v. Davis, 379 A.2d 757 (Md. App. 1978). purposes of settling the rights and supra; Rosenbaum v. obligations of the spouses need Rosenbaum, 210 A.2d 5 (DC Duress, fraud and undue not be in writing and are 1965). influence basis to avoid considered signed by the parties agreement. Saggese v. Saggese, if the terms of the agreement are Where separation agreement is 290 A.2d 794 (Md. App. 1972). (i) contained in a court order fair and reasonable and is endorsed by counsel or the parties intended as a final disposition Agreement may be set aside if or (ii) recorded and transcribed regarding property rights or so inequitable as to shock the by a court reporter and affirmed support, parties will be bound. conscience. Eaton v. Eaton, 366 personally by the parties on the Swift v. Swift, 566 A.2d 1045 A.2d 121 (Md. App. 1976). record. Va. Code § 20-155. (DC 1989). Oral agreements may be valid Requirement of basic fairness. An oral agreement which but terms must be specific. Henebry v. Henebry, 38 S.E.2d conforms to the general Golden v. Golden, 695 A.2d 320 (Va. 1946). requirements of contract law is 1231, cert. denied, 702 A.2d 290 enforceable, and if involving (Md. 1997). Must meet general requirements real property, may be outside for any contract’s validity of the statute of frauds where including valid consideration. certain rights are relinquished Upton v. Ames & Webb, Inc., 18 during the course of legal S.E.2d 290 (Va. 1942); Smith v. proceedings, such as the Smith, 351 S.E. 2d 593 (Va. App. abandonment of appeal rights 1986); Bergman v. Bergman, 487 or withdrawal of countersuit. SE.2d 264 (Va. App. 1997). Brown v. Brown, 343 A.2d 59 (DC 1975). Mutuality. Capps v. Capps, 219 S.E.2d 901 (Va. 1975).

When bargaining at arm’s length, no requirement to disclose . Barnes v. Barnes, 340 S.E.2d 803 (Va. 1986).

EFFECT OF LEGAL In absence of fraud, duress or Legal representation only one Receipt of independent legal REPRESENTATION concealment, a separation factor to be considered. advice is one factor to consider. agreement is valid no matter McClellan v. McClellan, See, e.g., Morris, supra. how ill advised a party may 451 A.2d 334 (Md. App. 1982). have been in executing it. Derby v. Derby, 378 S.E.2d 74 Reynolds v. Reynolds, (Va. App. 1989) (holding that 415 A.2d 535 (DC 1980). when husband and wife separate and employ attorneys to negotiate an agreement in settlement of property rights they become adversaries and their former or confidential relationship ends).

9

SEPARATION AGREEMENTS

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

EFFECT OF Subsequent cohabitation of As to provisions dealing with § 20-155 A reconciliation of the RECONCILIATION parties to an agreement has the disposition of property, a parties after the signing of a effect of voiding the agreement reconciliation and resumption of separation or property settlement only if the intent to do so is cohabitation will not agreement shall abrogate such manifested. Wood v. Wood, automatically terminate those agreement unless otherwise 309 A.2d 103 (DC 1973). provisions. Mach v. expressly set forth in the Baranowski, 136 A. 34 (Md. agreement. 1927); Frana v. Frana, 278 A.2d 94 (Md. App. 1971), reaffirmed in Kaouris v. Kaouris, 603 A.2d 1350 (Md. App. 1992).

RELATIONSHIP TO Court can incorporate a Customarily, Md. agreements Va. Code § 20-109.1 DECREE AND separation agreement into are approved at the divorce POWER OF COURT decree. Any breach thereof is hearing and are “incorporated Court can “affirm, ratify, and not a breach of contract but a without merger.” Such an incorporate by reference.” violation of the decree and agreement survives as an agreement into decree of divorce. subject to the contempt powers independent contract between Rodriguez v. Rodriguez, 334 of the court. Mohler v. Mohler, the parties. Boucher v. S.E.2d 595 (Va. App. 1985). 302 A.2d 737 (D.C. 1973). Shomber, 501 A.2d 97 (Md. Shoup v. Shoup, supra. App. 1985); Hamilos v. However, in D.C., it is unclear Hamilos, 450 A.2d 1316 (Md. Incorporation does not if incorporation without merger App. 1982). automatically merge agreement. preserves the integrity of the Parra v. Parra, 336 S.E.2d 157, contract. A few cases suggest 163 (Va. App. 1985). However, that incorporation of an court may enforce the parties’ agreement into a decree does incorporated agreement with not keep the agreement as an contempt power. Lindsay v. independent contract. See Lindsay, 238 S.E.2d 817 (Va. Brown v. Dyer, 489 A.2d 1081, 1977). 1083, fn. 1 (DC 1985); Grand v. Grand, 163 A.2d 556, 557 Court can simply approve, ratify (DC 1960). and confirm a separation agreement so that the agreement remains an independent contract. Shoosmith v. Scott, 232 S.E.2d 787 (Va. 1977); Rodriguez v. Rodriguez, supra.

10

SEPARATION AGREEMENTS

DISTRICT OF COLUMBIA MARYLAND VIRGINIA MODIFICATION OF Alimony Alimony Alimony PAYMENTS PER Court cannot modify amount of The court may modify Va. Code § 20-109: UN- alimony provided for in agreement with respect to Court order must be in INCORPORATED agreement unless the spousal support unless there is a accordance with agreement PROPERTY agreement provides for provision that specifically states between the parties if filed with SETTLEMENT modification. that the provisions with respect court. Pendleton v. Pendleton, AGREEMENT to spousal support are not 471 S.E.2d 783 (Va. Ct. App. Child Support subject to court modification or 1996). Child support established by a if there is a waiver of alimony valid agreement is modifiable which waiver is expressly non- Upon petition of either party the if movant shows (1) that there modifiable under the agreement. court may increase, decrease or is a change in circumstances Md. Fam. Law Code § terminate the amount or duration which was unforeseen at the 8-103(b) and (c); Shapiro v. of any spousal support and time the agreement was entered Shapiro, 697 A.2d 1342 (Md. maintenance as the circumstances into, and (2) that change is both 1997)(parties’ agreement to make proper. Upon clear and substantial and material to the modify alimony under limited convincing evidence that the welfare and best interest of the circumstances is enforceable). spouse receiving support has child. Cooper v. Cooper, 472 The Court may modify alimony been habitually cohabitating with A.2d 878 (DC 1984); see also retroactive to the date preceding another person in a relationship Lanahan v. Nevius, 317 A.2d filing of request for analogous to marriage for 1 year 521 (DC 1974) (court may modification, Langston v. or more commencing on or after increase but not decrease Langston, 784 A2d 1086 (Md. July 1, 1997, the court shall support set forth in an 2001); Fantle v. Fantle, 782 terminate support unless: (i) agreement). If merged into the A.2d 377 (Md. App. 2001). otherwise provided by contract, court order, the binding force or (ii) termination of support is of the amount of child support Child Support unconscionable. is not based on the contractual Md. Fam. Law Code § 8- obligation of agreement, but on 103(a): Child Support authority of court’s order, The court may modify any The court may modify an guided by guidelines. Duffy v. provision in an agreement with agreement the parties reach Duffy, 881 A2d 630 (DC respect to the care, custody, regarding minor children “from 2005). education, or support of any time to time. . . as the minor child if the modification circumstance of the parents and A separation agreement which would be in the best interest of the benefit of the children may is not merged in the final the child. Kovacs v. Kovacs, require.” Kaplan v. Kaplan, 466 judgment of divorce is 633 A.2d 425 (Md. App. 1993); S.E.2d 111 (Va. App. 1996); governed by the law of Corry v. O'Neill, 658 A.2d 1155 “The parties may not, by contracts. Under contract law, a (Md. App. 1995); Stancill v. agreement prevent the court from written contract may be orally Stancill, 408 A.2d 1030 (Md. exercising its power to change, modified or rescinded by a 1979) (even if court may not modify, or enforce its decree subsequent oral agreement, modify support provision of an concerning the custody and even where the contract incorporated agreement, it may maintenance of minor children” contains express language still enforce the agreement by Shoup v. Shoup, supra; the prohibiting oral modification. contempt proceedings); parties’ agreement is a factor to Clark v. Clark, 535 A.2d 872 McClure v. McClure, 289 A.2d be considered by the court. Va. (DC 1987). 610 (Md. App. 1972); Stern v. Code § 20-108.1. Horner, 324 A.2d 134 (Md. App. 1974). See also Ruppert v. Fish, 582 A2d 828 (Md App 1990) Absent some defect that would make the agreement invalid or unenforceable, the agreement should be given effect because parents would not ordinarily agree in writing to act in a manner detrimental to their children. 11

DIVORCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

JURISDICTION DC Code § 11-1101 (a) (1) Md. Fam. Law Code § 1-201: Jurisdiction VENUE The Family Court of the District Equity court has jurisdiction Va. Code § 20-96: of Columbia: Family Court of over divorce. Jurisdiction lies in the circuit Superior Court, has original court. jurisdiction over actions for Bill of divorce filed in county divorce and separation. where plaintiff resides, CJP §6- Venue 202-1 or where defendant Va. Code § 8.01-261(19): Venue – Venue not an issue as resides, is regularly employed or Preferred venue: only one local court within has place of business. CJP § 6- (1) where parties last cohabitated; jurisdiction. 201 for a Maryland Court to or (2) at option of plaintiff, have jurisdiction for a divorce county or city where defendant action, at least one of the parties resides; (3) if defendant is not a must have been a bona fide resident, in county or city where resident of Maryland when the plaintiff resides. complaint was filed, Fletcher v. Fletcher, 95 Md. App. 114, 619 Venue in divorce cases is no A2.d 561 (1993). longer jurisdictional. Decker v. Decker, 405 S.E.2d 12 (Va. App. 1991).

DOMICILE AND DC Code § 16-902: Md. Fam. Law Code §7-101(a): Va. Code § 20-97: RESIDENCE Legal separation and divorce One party must be domiciled in REQUIREMENTS require 6 mos. residency of one If grounds occurred outside of and an actual bona fide resident of the parties Maryland, one year residency of Virginia for at least 6 months requirement of either party. preceding commencement of suit. Member of armed services residing in DC for a continuous A member of the Armed Forces period of 6 mos. during his or is deemed to be domiciled and a her period of military service bona fide resident of VA if: (1) shall be deemed to reside in DC he/she has been stationed in VA for this purpose only. and lived with spouse six or more months next preceding the commencement of the suit; or (2) if he/she is stationed in a territory or foreign country at the time the suit is commenced and was domiciled in VA for the six month period immediately preceding his/her being stationed in that territory or country. DC Code § 11-1101 (a) (1) Long arm personal jurisdiction The circuit court has jurisdiction SUBJECT MATTER The Family Court of the District over non-resident defendant in over actions for divorce. Va. JURISDICTION of Columbia: Family Court of child support and alimony cases. Code § 20-96. Superior Court, has original Md. Cts. and Jud. Proc. Code § jurisdiction over actions for 6-103.1 divorce and separation.

13

DIVORCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA CORROBORA- TION OF Not required. However, Md. Fam. Law Code § 7- Yes. Va. Code § 20-99(1). GROUNDS pursuant to DC Code §16-919, a 101(b): No divorce shall be granted on REQUIREMENT decree for divorce or annulment Plaintiff’s testimony must be the uncorroborated testimony of may not be rendered on default corroborated. the parties or either of them. without proof, and an admission Collier v. Collier, 341 S.E.2d 827 contained in the answer of the Yes. Divorce by agreement of (Va. App. 1986) (holding where defendant may not be taken as the parties is not permitted. it is apparent that there is no proof of the facts, but shall be Leary v. Leary, 627 A.2d 30 collusion, corroboration needs proved by other evidence. (Md. App. 1993). only be slight).

When basis is voluntary (Every element or charge does separation agreement, an not need to be corroborated. agreement under oath before Corroboration has to give application for divorce is filed sufficient strength to the serves as full corroboration of complainant’s testimony for it to the plaintiff’s testimony that be believed.) Bchara v. Bchara, separation was voluntary. Md. 563 S.E.2d 398 (Va. Ct. App. Fam. Law Code § 8-104. 2002).

GROUNDS FOR DC Code § 16-904 (a): Md. Fam. Law Code § 7-103: Va. Code 20-91: ABSOLUTE No Fault Grounds The grounds must exist at the DIVORCE (1) Both parties have mutually time the suit is filed. Fault Grounds and voluntarily lived separate Adultery; and apart without cohabitation Fault Grounds Sodomy or buggery committed for a period of six months Adultery; outside of marriage; preceding commencement of the Desertion for 12 months (actual Conviction of felony with more action. or constructive); than one year imprisonment; (2) Both parties have lived 12 month imprisonment under cruelty; reasonable apprehension separate and apart without conviction of felony or of bodily harm; or desertion (after cohabitation for a period of one misdemeanor; a period of one year). year preceding commencement Insanity if insane spouse is of the action. confined for three years; Glaze v. Glaze, 46 Va. Cir. 333 Cruelty of treatment; (Va. Cir. Ct. 1998) (holding Excessively vicious conduct. married woman cannot commit adultery by engaging in sexual No Fault Grounds relationship, particularly sodomy, (1) Statutory separation - H & with another woman). W live separate and apart without cohabitation and No Fault Grounds without interruption for 2 years; On application where parties or have lived separate and apart for one year without interruption. (2) Voluntary separation for 12 If separation agreement exists months with shared intent to end and no minor children, upon the marriage. application after the parties have lived separate and apart for 6 months.

14

DIVORCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

SEPARATE LIVES Yes, DC Code § 16-904 (a), (b) No. Parties cannot live together Under certain circumstances, DOCTRINE and (c). Parties who have under same roof in a voluntary parties who continue to reside pursued separate lives sharing separation. Mount v. Mount, under the same roof can be found neither bed nor board shall be 476 A.2d 1175 (Md. App. 1984) to be living separate and apart. deemed to have lived separate (upholding evidentiary finding Bchara v. Bchara, 38 Va. App. and apart even though they of separation despite claims of 302, 563 S.E.2d 398 (Va. Ct. reside under the same roof; or cohabitation). App. 2002) (upheld the grant of a the separation is pursuant to an divorce based on a one year order of a court. separation where the parties still lived in the same marital residence). But see Catalano v. Catalano 68 Va. Cir. 80 (Va. Cir. Ct. 2005) (parties found not living separate and apart when living under the same roof in separate bedrooms with no sexual relations but attending social functions together, taking some meals together, wife continued to do the house chores for both and husband continued to financially support all the family activities).

DEFENSES TO Voluntary separation must be Voluntary separation must be Recrimination - Davis v. Davis GROUNDS FOR voluntary on the part of both with the shared intent of ending 277 S.E.2d 640 (Va. Ct. App. ABSOLUTE parties. Henderson v. the marriage. Aronson v. 1989). DIVORCE Henderson, 206 A.2d 267 (DC Aronson, 691 A.2d 785, cert. Condonation & Cohabitation – 1965). denied, 697 A.2d 111 (Md. Hollis v. Hollis 427 S.E.2d 233 1997). (Va. Ct. App. 1993). Md. Fam. Law Code §7-103(b) Connivance – Hollis v. Hollis, and (d): supra. Justification – Kerr v. Kerr 371 Factors to be considered: S.E.2d 30 (Va. Ct. App. 1988). Condonation – not an absolute bar, but is a factor. Va. Code § 20-94 – voluntary Recrimination – not a bar but is cohabitation after knowledge of a factor for an adultery case. the adultery, sodomy or buggery, or that it occurred more than 5 See Besche v. Besche, 121 A.2d years before institution of the 708 (Md. 1956). suit, or that it was committed by the procurement or connivance of the party alleging the act.

15

DIVORCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

GROUNDS FOR Legal Separation: Limited Divorce: Va. Code § 20-95: LIMITED DC Code § 16-904 (b): DIVORCE OR No Fault Grounds: Md. Fam. Law Code § 7-102: Cruelty; LEGAL (1) Both parties have mutually Limited divorce can be obtained SEPARATION and voluntarily lived separate even when the parties live under Reasonable apprehension of and apart without cohabitation. the same roof if the lack of bodily hurt; (2) Both parties have lived marital relations is involuntary separate and apart without and amounts to constructive Willful desertion or abandonment cohabitation for a period of one desertion. Ricketts v. Ricketts, (may be constructive). year preceding commencement 393 Md. 479 (2006). of the action. Cruelty towards wife or minor child;

Excessively vicious conduct;

Desertion (constructive or actual);

Voluntary separation.

DEFENSES TO Va. Code § 20-95 cruelty, GROUNDS FOR reasonable apprehension of LIMITED bodily hurt, willful desertion or DIVORCE OR abandonment. LEGAL SEPARATION Va. Code § 20-117: Divorce from bed and board not a bar to obtaining absolute divorce unless the cause for an absolute divorce was existing and known to the party applying for the absolute divorce before the bed and board divorce was entered.

See Petachenko v. Petachenko, 350 S.E.2d 600 (Va. 1986) (a single act of sexual intercourse following desertion would not constitute “matrimonial cohabitation” sufficient to defeat charge of desertion).

WHEN DIVORCE DC Code § 16-920: Upon entry on docket. See, e.g., Upon entry of Decree, but Court DECREE FINAL When time for appeal has run Sullivan v. Commissioner of can modify for 21 days after (30 days from docketing of Internal Revenue, 256 F.2d 664 entry. judgment) or upon final (4th Cir. 1958)(decree of divorce disposition of any appeal noted. not stayed pending appeal Va. Sup. Ct. R. 1:1 If application for a stay is challenging validity of divorce). denied, judgment becomes final Decker v. Decker, 471 S.E.2d upon entry of order denying 775 (Va. Ct. App. 1996). stay. Parties may file joint waiver of the right to appeal. 16

DIVORCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

MERGER OR DC Code § 16-905 (b): Md. Fam. Law Code §7-103(e): Va. Code § 20-121: ENLARGEMENT Upon application by the party Limited divorce based on Merger allowed one year after OF LIMITED who was granted a legal desertion may be enlarged when date of separation. However, if no DIVORCE OR separation the court may enlarge 12 months expires. minor children and parties have LEGAL its decree to an absolute divorce entered into separation agreement SEPARATION by submission of affidavits then merger possible after 6 showing no reconciliation has months if separated without taken place or is probable, and interruption and no reconciliation six month’s continued voluntary probable. and uninterrupted separation after legal separation decree is issued, or one year’s separation without interruption after legal separation is issued.

REVOCATION OF DC Code § 16-905 (a): Md. Fam. Law Code § 7-102(d): Va. Code §20-120: LIMITED The court may revoke its decree The court may revoke the decree Decree shall be revoked upon DIVORCE OR of legal separation at any time, at any time upon joint submission of an order endorsed LEGAL upon joint application of the application of the parties. by both parties or counsel. SEPARATION parties.

CHANGE OF DC Code § 16-915: Md. Fam. Law Code §7-105: Va. Code § 20-121.4: NAME Upon request of party who Upon request, court shall change Original name shall be restored assumed a new name on name if party took a new name upon motion of party changing marriage, court shall state in its on marriage and no longer name as part of final decree or by decree the birth-given or wishes to use it. separate order. previous name desired to be used.

17

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

FACTORS Alimony, when divorce or legal Md. Fam. Law Code A spouse is barred from receiving CONSIDERED IN separation is granted or when a § 11 101(c): support if that spouse is guilty of ARRIVING AT termination of a domestic Agreement of the parties. adultery (unless manifest THE AMOUNT OF partnership becomes effective. injustice); the court shall also AWARD DC Code §16-913: Md. Fam. Law Code consider any marital fault in All relevant factors necessary § 11-106(b): determining whether to award (continued next for a fair and equitable award, Required Considerations: spousal support. Va. Code § 20- page) including, but not limited to: 1. Ability of seeking party to be 107.1. 1. Ability of the party seeking wholly or partly self-supporting. alimony to be wholly or partly 2. Time necessary to gain The court looks to: self-supporting; sufficient education or training 1. The obligations, needs and 2. time necessary for the party to enable party to find suitable financial resources of the seeking alimony to gain employment. parties . . .; sufficient education or training 3. Standard of living during the 2. Standard of living established to enable that party to secure marriage. during the marriage; suitable employment; 4. Duration of marriage. 3. Duration of the marriage; 3. marital or domestic 5. The contributions, monetary 4. Age and physical and mental partnership standard of living, and non-monetary, of each party condition of the parties; giving consideration to the fact to the well-being of the family. 5. Special circumstances of a that there are now 2 households 6. Circumstances that child of the parties making it to maintain; contributed to the estrangement appropriate that a party not seek 4. duration of the marriage or of the parties. employment outside the home; domestic partnership; 7. Age of each party. 6. Monetary and non-monetary 5. circumstances which 8. Physical and mental contributions of each party to the contributed to the estrangement condition of each party. well-being of the family; of the parties; 9. The ability of the party from 7. Property interests of the 6. age of each party; whom alimony is sought to meet parties, real and personal, 7. physical and mental that party's needs while meeting tangible and intangible; condition of each party; the needs of the party seeking 8. Provisions made for marital 8. ability of alimony payor to alimony. property (under § 20-107.3); meet his/her needs while 10. Any agreement between the 9. Earning capacity, including meeting the payee’s needs; parties. the skills, education and training 9. financial needs and resources 11. Financial needs and of the parties and the present of each party, including: resources of each party… employment opportunities . . .; income, income from marital, Money for expenses from a 10. Opportunity for, ability of, domestic partnership and non- “marriage-type” relationship is and the time and costs involved marital assets; potential income to be considered Whittington v. for a party to acquire . . . skills which may be imputed to non- Whittington, 172 Md. App 317 needed to enhance his or her income producing assets; (2007) earning ability; previous award of child support 12. Whether the award would 11. Decisions regarding in this case, financial obligations cause a spouse …to become employment, career, economics, of each party; right of a party to eligible for medical assistance. education and parenting receive retirement benefits; and An unjustified rejection of a arrangements during the marriage taxability or non-taxability of bona fide offer of reconciliation and their effect of present and income. may be accepted as evidence of future earning potential, fault which is relevant in regard including the length of time . . . Maintenance of spouse and to any claim for alimony even in absent from the job market; minor children. See DC Code cases where a divorce is granted (cont.) §16-916. Needy spouse, on a nonculpable ground. genuine need. (cont.) (cont.)

18

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from ...... above Rhoad v. Rhoad, 330 A.2d 192 12. Extent to which either party Alimony Pendente Lite (Md. 1975); Roginsky v. Blake- has contributed to the attainment FACTORS DC Code §16-911 (a) (1) refers Roginsky, 129 Md. App. 132, of education, training, career CONSIDERED IN to factors set forth in §16-913 740 A.2d 125 (Md. App. 1999). position or profession of the other ARRIVING AT (d). Court must consider all factors party . . .; THE AMOUNT OF plus those not expressly listed. 13. Other factors, including the AWARD Solomon v. Solomon, 383 Md. tax consequences, . . . to consider 176 (2004). the equities of the parties.

TYPES OF Pendente Lite - DC Code §16- Pendente Lite – Md. Fam. Law Pendente Lite – Va. Code § 20- ALIMONY 911 (a) (1): refers to factors set Code § 11-102. 103. AWARDS AND forth in §16-913 (d). AVAILABILITY Md. Fam. Law Code § 11-106: Va. Code § 20-107.1(C): Upon granting a divorce, separation or termination of Allows rehabilitative alimony The court, in its discretion, may domestic partnership - DC Code and indefinite alimony but no decree that maintenance and continued next page §16-913 (a) – (c). alimony in gross. McAlear v. support of a spouse be made in McAlear, 469 A.2d 1256 (Md. periodic payments for a defined The alimony award may be 1984). duration, or in periodic payments indefinite or term-limited and for an undefined duration, or in a structured as appropriate to the However, the trial court can lump sum award, or in any facts. Must be in the form of make an award of compound combination thereof. periodic payments; lump sum alimony - simultaneous awards alimony is not authorized in DC. of rehabilitative and indefinite § 20-107.1(G): See also § 16-916…the Court alimony. Coviello v. Coviello, . . . “[D]efined duration” means a may order, pendente lite or 605 A.2d 661 (Md. App. 1992); period of time (i) with a specific permanently, that one spouse Francz v. Francz 157 Md. App. beginning and ending date or (ii) “shall pay reasonable sums 676 (2004). specified in relation to the periodically for the support of occurrence or cessation of an such needy spouse, domestic Md. Fam. Law Code §11- event or condition other than partner may be retroactive to 106(c): Indefinite alimony death or remarriage. date of filing”. DC Code § 16- awarded where: 913 (c). (1) the party seeking alimony, § 20-107.1(D): by reason of age, illness, In addition to or in lieu of an infirmity, or disability, cannot award . . . the court may reserve reasonably be expected to make the right of a party to receive substantial progress toward support in the future. . . . [T]here becoming self sufficient; or shall be a rebuttal presumption (2) unconscionably disparate that the reservation will continue standard of living. Tracey v. for a period equal to 50% of the Tracey, 614 A.2d 590 (Md. length of time between the date 1992-); Long v. Long, 743 A2d of marriage and the date of 281 (Md App. 2000); separation. (cont.) Innerbichler v. Innerbichler, 749 A2d 251 (Md. App. 2000).

19

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above In determining whether to award spousal support, a court shall also TYPES OF consider felony conviction and ALIMONY confinement, cruelty, willful AWARDS AND desertion, or abandonment, and AVAILABILITY reasonable apprehension of bodily hurt. Va. Code § 20- 107.1(E). No permanent support or maintenance to a spouse if that spouse is guilty of adultery, sodomy or buggery committed outside of the marriage, unless the court determines from clear and convincing evidence that it would be a manifest injustice to deny support to that party taking into consideration the respective degrees of fault during the marriage and relative economic circumstances of the parties. Va. Code § 20-107.1(B).

TERMINATION Md. Fam. Law Code §11-108: Cessation upon cohabitation, See Internal Revenue Unless parties agree otherwise, death and remarriage. Court may Code as well. alimony terminates: on death of increase, decrease or terminate either party, remarriage of the amount or duration of support continued next page recipient, or where court finds it upon clear and convincing necessary to avoid harsh or evidence of habitual cohabitation inequitable result. with another person in a relationship analogous to a Where parties agree that marriage for one year or more, alimony terminates upon commencing on or after July 1, cohabitation, “cohabitation” is 1997, unless 1) otherwise defined to require more than provided by stipulation or joint living arrangements. contract or 2) the spouse Gordon v. Gordon, 675 A.2d receiving support proves by a 540 (Md. 1996), Whittington v. preponderance of the evidence Whittington, 172 Md. App. 317 that termination of such support (2007). would be unconscionable. Va. Code § 20-109. Separation Agreement may Bergman v. Bergman, 25 Va. require continued payment of App. 204, 487 S.E.2d 264 Va. Ct. support after remarriage of App. (1997) (unlike the word recipient Campitelli v. Johnson, “reside,” “cohabit” encompasses 761 A2d 369, cert. denied, 768 a personal relationship between A2d 54 (Md. 2001). the individuals). . . (cont.)

20

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above See Rubio v. Rubio, 36 Va. App. 248, 549, S.E.2d 610 (2001) TERMINATION (discussing application of § 20- 109(A)). See Hardesty v. Hardesty, 581 S.E.2d 213 (Va. Ct. App. 2003) affirming that the provisions of § 20-109(D) control, and absent a specific and express provision in an Agreement that the support would continue after remarriage, the obligation would be terminated upon remarriage of the wife.

MODIFICATION DC Code § 16-914.01: Md. Code § 11-107: Va. Code § 20-109(A): OF COURT- Court retains jurisdiction to Court can extend period of Upon petition of either party, the ORDERED modify or terminate, to the alimony and may modify the court may increase, decrease, or ALIMONY extent the retention of amount of alimony, upon cause to cease, any support and jurisdiction does not contravene petition of either party, as maintenance for the spouse and other statutory provisions. circumstances and justice maintenance for the spouse that Continued next page requires. Odunukwe v. may thereafter accrue...as the Odunukwe, 633 A.2d 418 (Md. circumstances may make App. 1993); Ridgeway v. proper... Ridgeway, 171 Md. App. 373 (2006), Court may decrease or terminate upon clear and convincing Court may increase evidence of habitual cohabitation rehabilitative alimony to with another person in a indefinite. Blaine v. Blaine, 646 relationship analogous to a A.2d 413 (Md. 1994). marriage for one year or more commencing on or after July 1, Indefinite alimony is not 1997, unless 1) otherwise “permanent” alimony and court provided by stipulation or can reduce or terminate. Long contract or 2) the spouse v. Long, 743 A.2d 281 (Md. receiving support previously or App. 2000). preponderance of the evidence that termination of such support would be unconscionable Va. Code § 20-109(B): The court may consider modification of spousal support for a defined duration upon petition of either party if filed within the time covered by the duration of the award. Upon consideration of the factors . . . the court may increase, decrease or terminate the amount or duration of the award upon finding that. . . . (cont.)

21

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above (i) there has been a material change in the circumstances of MODIFICATION the parties, not reasonably in the OF COURT- contemplation of the parties when ORDERED the award was made or (ii) an ALIMONY 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 modification.

Va. Code § 20-107.1(D): Reservation – Once granted, the duration of such a reservation shall not be subject to modification.

Moreno v. Moreno, 480 S.E. 2d 792 (Va. Ct. App. 1997) (petitioner must show a material change in circumstances that warrant a modification of support.)

22

SPOUSAL SUPPORT, ALIMONY AND/OR MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

ALIMONY DC Code § 16-911(a) (1): Md. Fam. Law Code § 11-102: Va. Code § 20-103 provides that PENDENTE LITE During the pendency of an In proceeding for divorce, the trial court may make orders in action for divorce, termination alimony or annulment of its discretion for the support and of a domestic partnership or an marriage, the court may award maintenance of petitioning action to declare the marriage alimony pendente lite to either spouse in a suit for divorce. null and void, where the nullity party. is denied by the other spouse, The petitioning spouse should the court may require the spouse Guarino v. Guarino, 684 A.2d also be granted allowances for or domestic partner to pay 23 (Md. App. 1996) (merits not reasonable attorneys’ fees and the pendente lite alimony to the considered at pendente lite costs of litigation of these sums other spouse or domestic partner hearing). necessary to permit the petitioner for the maintenance of himself The purpose of pendente lite to carry on or defend suit. or herself including counsel alimony is to maintain the status Rowlee v. Rowlee, 179 S.E.2d fees, to enable such other spouse quo and provide funds to pursue 461 (Va. 1971) (holding such an to conduct the case and enforce claim. James v. James, 625 award is discretionary). any order relating thereto by A.2d 381 (Md. 1993). attachment, garnishment and/or imprisonment for disobedience.

The Court shall consider the factors set forth in §16-913(d), the factors considered in making an award upon granting a divorce or separation.

An award of pendente lite support is not a collateral order from which an interlocutory appeal can be taken. Bowie v. Nicholson, 705 A. 2d 290 (DC 1998).

SEPARATE Yes, DC Code § 16-916. Yes, Md. Fam. Law Code § 11- Yes, Va. Code § 20-107.1. MAINTENANCE 101(a)(l). NOT AN INCIDENT OF DIVORCE

UNIFORM Yes, DC Code 46-301.01 et. seq. Yes, Md. Fam. Law Code § 10- Yes, Va. Code § 20-88.32 to 20- INTERSTATE 301 et seq. 88.82. FAMILY Md. Fam. Law Code § 10-1A-01 SUPPORT ACT et seq. Md. Fam. Law Code § 10-302 added “Administration” as one of the “tribunals” of the state.

23

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

JURISDICTION DC Code § 11-1101 (a) (1), (5), By-product of power of divorce Court has the authority to decree (6), (7) and (8). The Family or annulment – jurisdiction of equitable distribution of property Court of the District of equity court. upon decreeing the dissolution of Columbia: Family Court of marriage; upon decreeing a Superior Court, has original divorce from the bond of jurisdiction. matrimony; or upon the filing of a foreign divorce decree. Court rules on property rights upon the entry of a final decree Personal jurisdiction over of annulment, divorce, legal respondent required for court to separation or termination of a enter order affecting marital domestic partnership in the property of such a spouse. absence of a valid antenuptial or post-nuptial agreement Such relief must be at the specific disposing the property rights of request of either party. Va. Code the spouses. DC Code § 16-910. § 20-107.3(A).

PROCEDURE DC Code § 16-910: the Court Md. Fam. Law Code §§ 8-202 - Va. Code § 20-107.3: shall (a) assign to each party his 8-213: 1. Court shall determine the legal or her sole and separate 1. Court determines ownership title as between parties; property; and (b) value and of personal and real property. 2. Court shall determine distribute all other property and 2. Court determines what is ownership and value of all debt accumulated during the marital property. property, real or personal, marriage or domestic 3. Court determines value of all tangible or intangible; partnership...in a manner that is marital property. 3. Court shall consider which of equitable, just and reasonable 4. Court may grant monetary such property is marital and after consideration of all award as an adjustment of the which is separate, and which is relevant factors (factors set forth equities and rights of the parties part separate and part marital in in DC Code §16-910 (b)). concerning marital property. accordance with A3. See also Young-Jones v. Bell, 4. Court shall determine the 905 A.2d 275 (DC 2006). Court may transfer title to real value of any such property as of property if all criteria in Md. the date of the evidentiary Fam. Law Code § 8- hearing on the evaluation issue. 205(a)(2)(iii)are met. 5. Based upon the equities and rights and interests of each party in the marital property, the court may grant a monetary award payable either in a lump sum or over a period of time in fixed amounts, to either party.

24

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

DEFINITION OF Property excluded by valid Md. Fam. Law Code § 8- Va. Code § 20-107.3 (A)(1): SEPARATE OR antenuptial or postnuptial 201(e)(3): Separate property is: NON-MARITAL agreement. DC Code § 16-910. Property acquired before (i) all property, real and personal PROPERTY marriage, property acquired by acquired by either party before DC Code § 16-910(a): inheritance or gift from a third the marriage; Property acquired prior to the party, property excluded by (ii) all property acquired during marriage or domestic valid agreement or directly the marriage by bequest, devise, partnership, and acquired during traceable to any of these descent, survivorship or gift from the marriage or domestic sources. a source other than the other partnership by gift, bequest, party; devise, or descent, and any (iii) all property acquired during increase thereof, or property the marriage in exchange for or acquired in exchange therefor. from proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; (iv) that part of property classified as separate pursuant to Va.’s dual classification amendments.

INCOME FROM Increases in value of separate Active vs. passive approach. Income from or increase in value OR INCREASE IN property may also be separate. Where the efforts of a spouse of separate property during the VALUE OF See DC Code § 16-910(a) and during the marriage contribute marriage is separate property; it is SEPARATE McDiarmid v. McDiarmid, 649 to the increase, that increase in only marital property to the PROPERTY A.2d 810 (D.C. 1994). value for even a nonmarital asset extent that significant personal is marital property. Brodak v. efforts resulted in such income or Brodak, 447 A.2d 847 (Md. increase. Va. Code § 20- 1982); Innerbichler v. 107.3(A)(3)(a). Innerbichler, 752 A2d 291 (Md. App. 2000) Passive income Martin v. Martin, 501 S.E.2d 450 from separate property is not (Va. Ct. App. 1998) (holding marital property. McNaughton where separate property can be v. McNaughton, 538 A.2d 1193 retraced from commingled (Md. App. 1988); Merriken v. property, the increased value in Merriken, 590 A.2d 566 (Md. separate property is presumed to App. 1991). be separate unless the non- owning spouse can prove that contributions of marital property or personal effort caused such increase in value). See also Moran v. Moran, 512 S.E.2d 834 (Va. Ct. App. 1999) (when determining if an asset is hybrid property it is important to consider whether value was generated by the expenditure of significant personal effort, not solely on amount of funds or effort expended).

25

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

DEFINITION OF DC Code § 16-910(b): Md. Code § 8-201(e)(1): Va. Code § 20-107.3(A)(2): MARITAL All property and debt Property, however titled, Marital property is: PROPERTY accumulated during the marriage acquired by one or both parties (i) all property titled in the names or domestic partnership (other during the marriage (except of both parties, whether as joint than defined separate property) defined separate property). tenants, tenants by the entireties, that has not been addressed in a or otherwise; valid antenuptial or postnuptial Actions filed after 9/3/94 (ii) all other property acquired agreement or a decree of Real property deeded as tenants during the marriage which is not separation, regardless of by the entirety is marital separate property as defined whether title is held individually property unless excluded by above. or by the parties in a form of valid agreement. (iii) part of any property joint tenancy or tenancy by the classified as marital pursuant to entireties. Dissipated property treated as (A)(3). existing marital property. Jointly titled property is marital Jeffcoat v. Jeffcoat, 649 A.2d Statutory presumption that all property even though a 1137 (Md. 1994), Simonds v. property acquired by either percentage of the jointly titled Simonds, 165 Md. App. 591 spouse during the marriage and property was purchased with (2005) before the last separation of the proceeds attributable to separate parties where at least one party property. Turpin v. Turpin, 403 intends the separation to be A.2d 1144 (DC App. 1979). permanent is martial property. Va. Code § 20-107.3(A)(2). Court can consider all Presumption is rebuttable. Dietz expenditures made during the v. Dietz, 17 Va. App. 203, 436 marriage in dividing marital S.E.2d 463 (Va. Ct. App. 1993). property existing at time of divorce. Bowser v. Bowser, 515 Income generated from marital A.2d 1128 (DC 1986); Turner v. property and property purchased Turner, 471 A.2d 1010 (DC with such funds is marital 1984). property. Stroop v. Stroop, 394 S.E.2d 861 (Va. Ct. App. 1990). Va. Code § 20-107.3(A)(3).

26

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

DEFINITION OF None. Md. Fam. Law Code § 8- None. “FAMILY-USE” 201(c)-(d): PROPERTY Family home in Maryland that was used as principal family residence, owned or leased by one or both parties at time of proceeding, and is or will be used as principal residence by one or both parties and a minor child.

Family use personal property acquired during marriage, owned by one or both parties, used primarily for family purposes. But payment of mortgage is marital acquisition. Hughes v. Hughes, 560 A.2d 1145 (Md. 1989).

Md. Fam. Law Code § 8-210(c): When a provision concerning family home or family use personal property terminates, if the property is marital property, the court shall adjust the equities and rights of the parties according to the provisions of § 8-205.

27

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA USE AND No express authority to award Yes, court may award use and No –Virginia has specifically POSSESSION OF use and possession. But see, DC possession for a maximum rejected the court’s authority to MARITAL HOME Code § 16-1001 et. seq. period up to three years from consider the future housing needs permitting use and possession date of court order at pendente of a spouse or children in pursuant to a civil order of lite stage and then again from fashioning its equitable protection order. date of divorce. Md. Fam. Law distribution award. Fitchett v. Code § 8-210. Fitchett, 370 S.E.2d 318 (Va. Ct. DC Code §§ 16-1005(c)(4) and App. 1988). (5)). The Court may issue a Factors considered in awarding protective order “(4) directing a family home in Md. Fam. Law However, in order to preserve the respondent to refrain from Code § 8-208. marital residence pursuant to Va. entering or to vacate the Code § 20-103 and upon a dwelling unit of the complainant The spouse seeking pendente showing of reasonable when the dwelling is (A) marital lite use and possession need not apprehension of physical harm to property of the parties; or (B) establish a ground for divorce party by spouse, court may jointly owned, leased, or rented but must allege one in the exclude spouse from jointly and occupied by both parties; complaint. Pitsenberger v. owned or rented family dwelling provided, that joint occupancy Pitsenberger, 410 A.2d 1052 pending resolution. See Pinkard shall not be required if a party is (Md. 1980). v. Pinkard, 407 S.E.2d 339 (Va. forced by the respondent to Ct. App. 1991). relinquish occupancy; or (C) Court’s power to award use and owned, leased, or rented by the possession of family home for 3 complainant individually; or (D) years in absolute divorce decree jointly owned, leased, or rented is not limited by prior pendente by the complainant and a person lite order of use and possession. other than the respondent, John O. v. Jane O., 601 A.2d (5) directing the respondent to 149 (Md. App. 1992). relinquish possession or use of certain personal property owned jointly by the parties or by the complainant individually…”

28

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

TRANSMUTATION There may be ‘transformation’ Only when spouse commingles Cases filed before July 1, 1990 of sole and separate property marital and non-marital funds to Property is either all marital or all into marital property upon the point where direct tracing is separate. Smoot v. Smoot, 357 significant contribution by non- impossible does his or her S.E.2d 728 (Va. 1987). owner spouse to that sole and property lose its nonmarital separate property. Darling v. status. Melrod v. Melrod, 574 Cases filed after July 1, 1990 Darling, 444 A.2d 20 (DC A.2d 1 (Md. App. 1990); Dual classification permitted. See 1982); Brice v. Brice, 411 A.2d Merriken v. Merriken, 590 A.2d Va. Code § 20-107.3(A)(3). 340 (DC 1980). 566 (Md. App. 1991). Inability Commingling an asset will to trace property acquired during transmute it unless it is the marriage directly to a non- retraceable by preponderance of marital source means that all evidence to its original property acquired was marital. classification. Robinson v. Long v. Long, 743 A2d 281 Robinson, 621 S.E.2d 147 (Va. (Md. App. 2000). Ct. App. 2005).

Separate property may be transmuted into marital property by the manner in which it is maintained but marital may become separate only by an express agreement of the parties or as provided in § 20- 107.3(A)(3)(d) regarding commingling. McDavid v. McDavid, 451 S.E.2d 713 (Va. Ct. App. 1994).

WAGES OR Wages or salaries earned by a Wages or salary earned by Wages or salary earned by spouse SALARY EARNED spouse during the marriage are spouse during marriage is during marriage is marital BY SPOUSE marital property. marital property. property. v. Taylor, 387 S.E.2d 797 (Va. App. 1990).

29

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PENSIONS Pension benefits to the extent Portion of pension (also, Pensions are personal property that they were acquired during disability plan) accruing during subject to equitable distribution. the marriage, should be deemed marriage is marital property, See Va. Code § 20-107.3(G); marital property. Barbour v. Conteh v. Conteh, 392 Md. 436 Sawyer v. Sawyer, 335 S.E.2d Barbour, 464 A.2d 915 (D.C. (2006); Lockingbill v. 277 (Va. App. 1985); Mann v. 1983); Sanders v. Sanders, 602 Lookingbill, 483 A.2d 1 (1984); Mann, 470 S.E.2d 605 (Va. App. A.2d 663 (DC 1992). Hoffman v. Hoffman, 614 A.2d 1996). 988 (Md. App. 1992); Allen v. Dissipated pension can be Allen, 2008 Md. App. Lexis 10. Va. Code §§ 20-107.3(A)(2) awarded. Herron v. Johnson, Pensions, profit sharing or 714 A.2d 783 (1998). “If, as and when” valuation. deferred compensation or Bangs v. Bangs, 475 A.2d 1214 retirement plans acquired during DC Code §16-910 (c): “The (Md. App. 1984); Ohm v. Ohm, the marriage are presumed to be Court is not required to value a 431 A.2d 1371 (Md. App. marital property pension or annuity if it enters an 1981); Imagnu v. Wodajo, 582 Va. Code § 20-107.3(G). The order distributing future periodic A.2d 590 (Md. App. 1990). court may direct payment of a payments.” percentage of any pension, profit- sharing or deferred compensation or retirement plan, either vested or not vested, that is marital property, but the court shall only direct that payment be made as such time the benefits are payable.

30

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

STOCK OPTIONS Has yet to be addressed. Deferred compensation is Stock options granted during the AND DEFERRED marital property. Klingenberg marriage as deferred COMPENSATION v. Klingenberg, 675 A.2d 551 compensation are treated as BENEFITS* (Md. 1996). marital property under the provisions of Va. Code § Stock options acquired during 107.3(G) even where the options marriage are marital property. have not been exercised during Green v. Green, 494 A.2d 721 the marriage. The marital portion (Md. App. 1985). of the unvested options granted during the marriage but maturing However, a pre-emptive right to after the date of separation is a stock which is fraction, the numerator of which acquired during marriage, but is the number of months the not exercised prior to the owner of the option was covered termination of the marriage, is by the identified plan during the not marital property subject to marriage to the date of equitable distribution. separation, and the denominator of which is the total number of Ross v. Ross, 600 A.2d 891 months the option owner is (Md. App. 1992). This opinion covered by the plan. Dietz v. was vacated by 607 A.2d 933 Dietz, 17 Va. App. 203, 436 (Md. 1992) for technical S.E.2d 463 Va. Ct. App. (1993). reasons. The husband failed to prove to the court that the grant of stock Unexercised and unvested stock options he received after the last options can constitute marital separation was not for services property. Otley v. Otley, 810 performed prior to the separation. A2d 1 (Md. App. 2002). Ott v. Ott, 2001 Va. App. LEXIS 10, 2001 WL 32675, (Va. Ct. App. Jan. 16, 2001). The full value of employee stock options should be treated as marital property if, during the marriage, the spouse earned the options and became fully vested of the unconditional right to exercise the options. Donohue v. Donohue, No. 2675-96-2, 1997 Va. App. Lexis 450 (Va. Ct. App. July 8, 1997).

* See related article “Divorce—The Valuation and Division of Stock Options” by Sanford K. Ain, Esquire and Darryl A. Feldman, Esquire at www.ainbanklaw.com. and www.aaml.org. 31

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PROFESSIONAL Goodwill of a professional Professional goodwill is marital Goodwill may be an asset of a GOODWILL* practice acquired during a property if it has a value professional practice, and if it is, marriage is marital property independent of the continued it is subject to valuation for subject to valuation and presence or reputation of a equitable distribution purposes. distribution. However, under the particular individual. Skrabak v. The value of the marital property facts of a given case, a Skrabak, 673 A.2d 732 (Md. is its intrinsic worth to the parties. professional practice may have App. 1996). Prahinski v. A property’s intrinsic value must no goodwill value, e.g., if the Prahinski, 540 A.2d 833 (Md. be translated into a monetary express terms of a partnership App. 1988). amount. The item may still have agreement make goodwill a value even if sale may be nonsalable, and there are no A single person law firm has no restricted or forbidden. Howell v. other factors that may make the goodwill. Prahinski v. Prahinski, Howell, 523 S.E.2d 514 (Va. Ct. goodwill valuable. McDiarmid 582 A.2d 784 (Md. 1990). App. 2000); Hoebelheinrich v. v. McDiarmid, 649 A.2d 810 Hoebelheinrich, 600 S.E.2d 152 (DC 1994). A dental practice can have (Va. Ct. App. 2004). goodwill that is separate from the reputation of the dentist, and is, therefore, properly characterized as marital property. Hollander v. Hollander, 597 A.2d 1012 (Md. App. 1991).

Goodwill, an intangible asset that may be added to a business entity may be marital property unless uniquely personal. Strauss v. Strauss, 647 A.2d 818 (Md. App. 1994). Professional degrees and licenses LICENSES AND No, See Hill v. Hill, 114 WLR No, professional degrees and are not property and not subject DEGREES* 2209 (Super. Ct. 1986) licenses are not marital property. to equitable distribution. Palmer (husband’s law degree obtained However, court is empowered v. Palmer, 21 Va. Cir. 112 (Va. primarily through his own under Md. Fam. Law Code 11- Cir. Ct. 1990). efforts and work not subject to 105 to take into account the equitable distribution). spouse’s earning capacity when making the award. Archer v. Archer, 493 A.2d 1074 (Md. 1985); Solomon v. Solomon, 383 Md. 176 (2004).

* See related article “Professional, Personal & Celebrity Goodwill Valuation: Forecasting an Uncertain Future” by Sanford K. Ain, Esquire and Anne Marie Jackson, Esquire, American Academy of Matrimonial Lawyers Annual Meeting, November 1998 at www.aaml.org and www.ainbanklaw.com.

32

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PERSONAL Personal injury award for Personal injury claims are not Va. Code § 20-107.3(A)(3)(c) INJURY AWARDS/ injuries sustained after parties marital property. Unkle v. and Va. Code § 20-107-3(H): WORKER’S separated deemed marital Unkle, 505 A.2d 849 (Md. Court may award percentage of COMPENSATION property. Boyce v. Boyce, 541 1986). Liquidated personal marital share of personal injury BENEFITS A.2d 614 (DC 1988). injury proceeds can have both awards attributable to lost wages marital and nonmarital elements. or unreimbursed medical Blake v. Blake, 670 A.2d 472 expenses if accrued during (Md. 1996). Worker’s marriage and before date of last compensation benefits for lost separation, payable in lump sum wages during marriage are or over a period of time. marital property. Lowery v. Bennett v. Bennett 1997 Va. App. Lowery, 688 A.2d 65 (Md. App. Lexis 611 (Va. Ct. App. Sept. 23, 1997). 1997) (husband’s disability retirement benefits received through employment are a marital asset subject to equitable distribution). McLellan v. McLellan, 33 Va. App. 376 (Va. Ct. App. 2000) (when military disability benefits are received in lieu of military retirement pay, the benefits are not subject to division by the state courts; federal preemption under the Uniform Services Former Spouse’s Protection Act.)

SPECIAL Trial court has discretion as to If value of property is negative, In order for the court to make a VALUATION date of valuation. Court can property is valued at zero. See monetary award, the parties must CONSIDERATIONS revalue marital assets when they Goldberg v. Goldberg, 626 A.2d provide sufficient evidence of the have materially changed in 1062 (Md. App. 1993). property’s value. Hodges v. value during substantial period Hodges, 347 S.E.2d 134 (Va. Ct. of time that had elapsed between App. 1986); Kaufman v. trial and entry of court order and Kaufman, 375 S.E.2d 374 (Va. distributing marital property. Ct. App. 1988) (finding that McDiarmid v. McDiarmid, 649 husband’s business had negative A.2d 810 (DC 1994). value and was not subject to monetary award).

33

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

TIME OF CLASS- DC Code § 16-910: All property acquired between Va. Code § 20-107.3(A)(2): IFICATION All property acquired from the the time of the commencement All property acquired from the (CUT OFF FOR date of marriage or domestic of the marriage and its date of marriage through the date ACCUMULATION partnership through the date of dissolution by death, annulment of the last separation of the OF MARITAL divorce, legal separation or issuance of a decree of parties if at least one of the PROPERTY) annulment or termination of absolute divorce is marital parties intended the separation to domestic partnership. property. Campolattaro v. be permanent. Campolattaro, 502 A.2d 1068 (Md. App. 1986); Alston v. Stratton v. Stratton, 16 Va. App. Alston, 629 A.2d 70 (Md. 878, 433 S.E.2d 920 Va. Ct. App. 1993); Prahinski v. Prahinski, (1993) (holding character of 540 A.2d 833 (Md. App. 1988). property at date of acquisition governs where the issue is the proper classification of property that has been transmuted from separate property, the date of classification will be the date of the actions causing the transmutation).

POWER OF Yes, DC Code § 16-910(b) Yes, Md. Fam. Law Code § 8- Pursuant to Va. Code § 20- COURT TO provides that the court may 202(a)(3) by reference to § 8- 107.3(C), the court can only order CONVEY convey real and personal marital 205 provides that the court may the transfer or division of jointly PROPERTY property, irrespective of how it transfer the ownership of certain owned marital property. The is titled. See Barbour v. personal or real property from statute does not authorize the Barbour, 464 A.2d 915 (DC one party to the other under division or transfer of marital 1983). certain circumstances. Court property that is not jointly titled, may transfer ownership of an except court may transfer interest in a pension retirement, ownership of an interest in a profit sharing or deferred pension, profit sharing or other compensation plan from one retirement plan from one party to party to either or both, and Court the other. may also transfer title to real property where the statutory criteria are satisfied (Md. Fam. Law Code § 8-205 (a)(2)(iii)). This new section, 8-205 (a)(2)(iii) only applies prospectively, for or divorces filed on or after 10/1/06.

See also, Pleasant v. Pleasant, 632 A.2d 202 (Md. App. 1993).

34

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

EQUITABLE DC Code § 16-910(b): the Court Md. Fam. Law Code § 8-205(b): Va. Code § 20-107.3(E): DISTRIBUTION shall value and distribute all 1. The contributions, monetary The amount of the award and the FACTORS property and debt in a manner and non-monetary, of each party method of payment shall be that is equitable, just, and to the well-being of the family. determined by the court after reasonable, after considering all 2. The value of all property consideration of the following continues on next relevant factors, including, but interests of each party. factors: page not limited to: 3. The economic circumstances 1. The contributions, monetary (1) the duration of the marriage of each party at the time the and nonmonetary, to the well- or domestic partnership; award is to be made. being of the family; (2) the age, health, occupation, 4. The circumstances that 2. The contributions, monetary amount, and sources of income, contributed to the estrangement and nonmonetary of each party in vocational skills, employability, of the parties. the acquisition and care and assets, debts, and needs of each 5. The duration of the marriage. maintenance of such marital of the parties; 6. The age of each party. property of the parties; (3) provisions for the custody of 7. The physical and mental 3. The duration of the marriage; minor children; condition of each party. 4. The ages and physical and (4) whether the distribution is in 8. How and when specific mental conditions of the parties; lieu of or in addition to alimony; marital property or an interest in 5. The circumstances which (5) each party's obligation from pension deferred compensation, contributed to the dissolution of a prior marriage, a prior etc. was acquired, including the the marriage, specifically any domestic partnership, or for effort expended by each party. fault grounds; other children; 9. Contributions to the 6. How and when specific items (6) the opportunity of each party acquisition of real property held of such marital property were for future acquisition of assets as tenants by the entirety. acquired; and income; 10. Any award of alimony and 7. The debts and liabilities of (7) each party's contribution as a any award that the court has each spouse, the basis for such homemaker or otherwise to the made as to use and possession of debts and liabilities, and the family unit; family home or personal property which may serve as (8) each party's contribution to property. security for such debts and the education of the other party 11. Any other factors as the liabilities; which enhanced the other party's court deems necessary or 8. The liquid or nonliquid earning ability; appropriate to consider in order character of all marital property; (9) each party's increase or to arrive at a fair and equitable 9. The tax consequences to each decrease in income as a result of monetary award or transfer an party; the marriage, the domestic interest in pension, retirement, 10. The use or expenditure of partnership or duties of profit sharing or deferred marital property for a non-marital homemaking and child care; compensation. separate purpose or the (10) each party's contribution to dissipation of funds when done in the acquisition, preservation, anticipation of divorce or appreciation, dissipation, or separation or after the last depreciation in value of the separation of the parties. assets which are subject to 11. Such other factors as the distribution, the taxability of court deems necessary or these assets, and whether the appropriate to consider in order to asset was acquired or the debt arrive at a fair and equitable incurred after separation; monetary award. (11) the effects of taxation on the value of the assets subject to distribution; and (12) the circumstances which contributed to the estrangement of the parties. . . . (cont.)

35

DISTRIBUTION OF MARITAL PROPERTY

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above No presumption of equal distribution. Burwell v. EQUITABLE Burwell, 700 A.2d 219 (1997); DISTRIBUTION Young-Jones v. Bell, 905 A.2d FACTORS 275 (DC 2006).

36

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA JURISDICTION DC Code § 11-1101 (a) (1) and Md. Code § 1-201(a)(9): Va. Code §16.1-244 VENUE (3). The Family Court of the An equity court has jurisdiction Petitioner in a suit for child District of Columbia: Family over support of a child. support and maintenance has the Court of Superior Court, has option to proceed in circuit court original jurisdiction. Md. Fam. Law Code Cts. & Jud. or juvenile and domestic relations Proc. §§ 6-201 and 6-202: J&DR Court. However, when a Suit must be brought in a county suit for divorce has been filed in in which defendant lives or circuit court and a hearing is works; where father or mother scheduled in circuit court, the lives or where child lives. J&DR Court will be divested of its jurisdiction on that matter unless both parties agree to a referral to the J&DR Court.

Circuit court in a divorce proceeding may upon its own initiative transfer enforcement of support to J&DR Court, or place the entire support matter before the J&DR Court upon motion of the parties (Va. Code § 20-113). If circuit court retains jurisdiction, it can modify support as well. Va. Code § 20-108.

Va. Code § 16.1-243 (A)(2): Generally commenced in the city or county where either party resides or where the respondent is present when the proceeding commences.

37

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

AMOUNT OF DC Code §16-916.01. Child Use of statutory guidelines is Va. Code §§ 20-108.1 and 108.2 SUPPORT IN Support Guidelines. mandatory in most There is a rebuttal presumption GENERAL circumstances. In re: Katherine that the support guidelines in § DC Code §16-916.01(h): C., 390 Md. 554 (2006)). 20-108.2 are correct. The child support guideline shall General rule that amount of not presumptively apply in cases Court of Appeals has held that support depends not solely upon where parents’ combined it is rarely within the best the child’s needs but also upon adjusted gross income exceeds interest of the child to receive the ability of a to pay. See $240,000 per year. In this case, less support than amount Conway v. Conway, 395 S.E.2d obligation shall not be less than specified in guidelines. 464 (Va. Ct. App. 1990) (child amount if guideline had been Shrivastava v. Mates, 612 A.2d support awards are not based applied to adjusted gross of 313 (Md. App. 1992). solely on need but on ability to $240,000. In judge’s discretion pay). to order more based on child’s Child’s needs control when reasonable needs based on parent’s income exceeds actual family experience. guidelines. See Voishan v. Palma, 609 A.2d 319 (Md. DC Code §16-916.01(c) (3): 1992); Lemly v. Lemly, 649 “A parent has the responsibility A.2d 1119 (Md. App. 1994); to meet the child's basic needs as Walker v. Grow, 170 Md. App. well as to provide additional 255 (2006). child support above the basic needs level.” See also §16-916.01 (p).

RETROACTIVE Court may award child support Md. Fam. Law Code § 12-101: Va. Code § 20-108.1(B) SUPPORT FOR retroactive for a period not to Requires courts to award child Liability for support shall be INITIAL SUPPORT exceed 24 months preceding support retroactively to the time determined retroactively for the ORDER filing. DC Code § 16-916.01 (v) of the initial pleading requesting period measured from the date (1) to the date of birth of child support. that the proceeding was born out of wedlock. A child’s commenced by the filing of an needs begin at birth. Caccamise v. Caccamise, action with the court provided the 747 A.2d 221 (Md. App. 2000). complainant exercised due Father not entitled to retroactive diligence in the service of the support because he made respondent or, if earlier, the date considerably more than the an order of the Department of mother. Social Services entered pursuant to Title 63.2 and directing Md. Fam. Law Code payment of support was delivered §12-104(b): to the sheriff or process server for Court may not award child service on the obligor. support to a point in time prior to date of the filing of the motion for modification. O’Brien v. O’Brien, 766 A2d 211 (Md. App. 2001).

GUIDELINES Yes, DC Code § 16-916.01 (p). Yes, Md. Fam. Law Code § 12- Yes, Va. Code § 20-108.2: Application of the guidelines is 201 et. seq. Rebuttable presumption in any presumptive and shall be applied Rebuttable presumption in judicial or administrative unless application of the Maryland, § 12-202 (a)(2)(i) See proceeding for child support that guidelines would be unjust or also, In Re: Katherine C. 390 the amount of the award which inappropriate in the Md. 554 (2006). would result from the application circumstances of the particular of the guidelines shall be the case. correct amount. 38

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

FACTORS DC Code § 16-916.01 (p): See Md. Fam. Law Code § 12- See Va. Code § 20-108.1. CONSIDERED IN “The factors that may be 202(a)(2)(ii-v). DEVIATING FROM considered to overcome the Even when parties decide THE GUIDELINES presumption are: different amount, they still must (1) The needs of the child are use statutory factors to determine exceptional and require more amount – “allows for agreement continued next page than average expenditures; … to different amount, not (2) The gross income of the different process.” Saleem v. parent with a legal duty to pay is Sameem, 26 Va. App. 384 (Va. substantially less than that of the Ct. App. 1998). parent to whom support is owed; (3) A property settlement provides resources readily available for the support of the child in an amount at least equivalent to the guideline amount; (4) Either parent supports a dependent other than a child subject to the support order, including a biological or adoptive child, a step-child, or an elderly relative, and application of the guideline would result in extraordinary hardship; (5) The parent with a legal duty to pay support needs a temporary period of reduced child support payments to permit the repayment of a debt or rearrangement of his or her financial obligations; a temporary reduction may be included in a support order if: . . . (cont.)

39

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above (A) The debt or obligation is for a necessary expenditure of reasonable cost in light of the FACTORS parent's family responsibilities; CONSIDERED IN (B) The time of the reduction DEVIATING FROM does not exceed 12 months; and THE GUIDELINES (C) The support order includes the amount that is to be paid at the end of the reduction period and the date that the higher payments are to commence; (6) The parent to whom support is owed receives child support for a child living in this parent’s home, other than the child subject to the support order, and the resulting gross income of the household to which support is owed causes the standard of living of that household to be greater than that of the household and the parent with a legal duty to pay support; (7) A child subject to the support order has regular and substantial income that can be used for care of the child without impairment of the child’s current or future education; (8) The parent with legal duty to pay support has special needs that increase costs of the parent’s subsistence; (9) The parent with legal duty to pay support pays for certain expensive necessities for the child; (10) The parent with legal duty to pay support is 18 years old or younger and a full-time student; (11) The child is a respondent in a neglect proceeding and has been placed outside the home with a goal of reunification with the parent; or (12) Any other exceptional circumstance that would yield a patently unfair result.”

40

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

WHEN CHILD Child support obligations 18, unless the child is still in Until 18 or 19 if in high school. SUPPORT continue until the age of 21. high school, in which case child Va. Code §§ 16-278.15(A). TERMINATES Butler v. Butler, 496 A.2d 621 support extends to age 19 or (DC 1985). graduates from high school Md. Ann. Code Art. 1, §24. It may See DC Code § 16-916 (a) be older for mentally disabled “minor children,” and DC Code children, Trembow v. §46-101. Schonfeld, 393 Md. 327 (2006); Sininger v. Sininger, 479 A.2d 1354 (Md. 1984); Obligations also continue for a destitute child Md. Fam. Law Code § 13- 102.

MODIFICATION DC Code §16-916.01: Court retains jurisdiction to Courts retain authority to modify JURISDICTION The Court retains jurisdiction to modify. Md. Fam. Law Code § to correspond with the changing modify or terminate court- 1-201(b)(4). financial circumstances of ordered child support to the parties. Va. Code § 20-108. extent retention of jurisdiction does not contravene other Shoup v. Shoup, 37 Va. App. statutory provisions. See also 240, 556 S.E.2d 783 (2001) DC Code § 46-204. approved an agreement that was incorporated into a divorce decree, and which provided for self-executing child support modification. See also Va. Code § 20-109.1 - Provisions for future modification of child support in agreements shall be valid and enforceable.

41

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

STANDARDS FOR Modification by application of Md. Fam. Law Code § 12-104: Party must demonstrate: MODIFICATION the guideline subject to Need to show material change in (1) a material change in OF COURT conditions or limitations in DC circumstances. Reese v. circumstances; and ORDERED CHILD Code § 16-916.01 (r). Huebschman, 440 A.2d 1109 (2) the change justifies SUPPORT DC Code § 46-204. (Md. App. 1982), Tidler v. modification of the amount. “(a) Any order requiring Tidler, 435 A.2d 489 (Md. App. See Kaplan v. Kaplan, 466 S.E.2d payment of an amount of child 1981). 111 (Va. Ct. App. 1996). support, regardless of whether the amount of the child support The law regarding modification To reduce, petitioning spouse was the subject of a voluntary of child support through an must show that change in agreement of the parties, may be agreement is different and too financial obligations renders him modified upon a showing that complex to address in this unable to fulfill financial there has been a substantial and outline. obligations and that the change is material change in the needs of not a result of the payor’s the child or the ability of the The standard for modification of voluntary act or neglect,. responsible relative to pay since a pendente lite order is not that Hammers v. Hammers, 216 the day on which the order was there has been a material change S.E.2d 20 (Va. 1975) See issued. A showing or proof of a in circumstance, but simply that Conway v. Conway, 395 S.E.2d change in circumstances shall it be in the best interest of the 464 (Va. Ct. App. 1990) (child not be required to modify a child. Knott v. Knott, 806 A2d support awards are not based support order that is being 768 (Md. App. 2002). solely on need but on ability to reviewed pursuant to § 16- pay). 916.01 (r) (3) or (r) (4). To increase, must show that Upon occurrence of substantial increased support will be spent. and material change in Young v. Young, 348 S.E. 2d 46 circumstances sufficient to (Va. Ct. App. 1986). warrant modification, judicial officer may modify any Riggins v. O’Brien, 559 S.E.2d provision of an agreement or 673 (Va. 2002) (where the settlement relating to child parties’ Agreement allowed that support, regardless of whether child support shall be the agreement or settlement is renegotiated or submitted to a entered as consent order or is court for adjudication on the incorporated or merged into occurrence of a specific and order. DC Code § 16-916.01 (t). certain event, it meant that upon agreement of the parties, a A change in parents’ financial consent decree could be circumstances alone cannot presented to the court for entry provide the basis for modifying or, it would adjudicate the matter a contract between parties. and enter an order reflecting its Nevarez v. Nevarez, 626 A.2d determination). 867 (DC 1993).

42

CHILD SUPPORT AND MAINTENANCE

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

RETROACTIVE DC Code § 46-204. Md. Fam. Law Code § 12- Va. Code § 20-74: No retroactive MODIFICATION “(c) No modification of an 104(b): No retroactive modification except for the OF CHILD award of alimony, child support, modification except for period period during which there is a SUPPORT or maintenance may be when petition is pending and is pending petition and is then retroactive, except that a then discretionary. discretionary. modification may be permitted for the period during which a petition for modification is pending. The modification may then be permitted from the date on which the opposing party was given notice of the petition for modification according to statute or court rule.”

VOLUNTARY A voluntary decrease in income Md. Fam. Law Code § 12- Va. Code § 20-108.1(B)(3), in IMPOVERISH- will not justify a reduction in 204(b): A spouse is not allowed considering the appropriate MENT support payments. Guyton v. to voluntarily impoverish amount of child support to be Guyton, 602 A.2d 1143 (DC himself to reduce support and is paid, a trial court is required to 1992). chargeable with provable input income to a parent who is potential income. Wagner v. found to be voluntarily Wagner, 674 A.2d 1 (Md. App. underemployed. Broadhead v. 1996). Moore v. Tseronis, 664 Broadhead, 655 S.E.2d 170 (Va. A.2d 427 (Md. App. 1995); Ct. App. 2008). Reuter v. Reuter, 649 A.2d 24 The Va. has held (Md. App. 1994); Goldberger v. that the payor assumes the risk of Goldberger, 624 A.2d 1328 a voluntary career change which (Md. App. 1993); John O. v. was expected to result in Jane O., 601 A.2d 149 (Md. increased income but instead App. 1992); Gordon v. Gordon, results in a decrease in income. 174 Md. App. 583 (2007). Antonelli v. Antonelli, 409 S.E.2d 117 (Va. 1991).

EFFECT OF See DC Code § 16-916.01(r) Usually considered a material Va. Code § 20-108.1(B)(1) SUBSEQUENT (11). change. Under guidelines, court is CHILDREN required to consider actual monetary support for other children, other family members and former family members.

LIFE OR HEALTH Yes, as to health insurance. Md. Fam. Law Code § 12-102: Va. Code § 20-60.3 and 20- INSURANCE FOR Court can require either parent 108.1(D): THE BENEFIT OF to include the child in parent’s Trial court may order a party to A CHILD health insurance through maintain all or part of existing employer. life insurance and/or health insurance for the benefit of a child.

43

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

JURISDICTION DC Code § 11-1101 (a) (1) and Md. Code § 1-201(a) and (b): Custody proceedings may be (4). The Family Court of the Equity court has jurisdiction brought in either the Circuit District of Columbia: Family over custody of child and Court or the J&DR general Court of Superior Court, has visitation of child. district court depending upon the original jurisdiction. status of the parties and whether custody is ancillary to some other proceeding. Va. Code §§ 16.1- 244 and 20-103.

UNIFORM CHILD Yes, DC Code § 16-4601.01 et Yes, Md. Fam. Law Code § 9.5- Yes, Va. Code § 20-146.1 et seq. CUSTODY seq. 101 et seq. JURISDICTION ACT FACTORS TO BE DC Code §16-914 (a) (3): “In Factors include but are not Va. Code § 20-124.3: CONSIDERED IN determining the care and limited to: Primary consideration is the best MAKING AN custody of a child, the best (a) fitness of parent; interest of the child. Court shall AWARD interest of the child shall be the (b) the character and reputation consider: primary consideration. To of the parties; 1) age and physical and mental determine the best interest of the (c) the desire of the natural condition of child…; child, the court shall consider all parents and the content of any 2) age and physical and mental continued next page relevant factors, including, but agreement between them; condition of each parent; not limited to: (d) the potentiality of 3) relationship existing between (A) the wishes of the child as to maintaining natural family each parent and each child…; his or her custodian, where relations; 4) needs of child…; practicable; (e) the preference of the child; 5) the role which each parent has (B) the wishes of the child’s (f) any material opportunities played and will play in the future, parent or parents as to the affecting the child; in the upbringing and care of the child’s custody; (g) the age, health and sex of child or children; (C) the interaction and the child; 6)the propensity of each parent to interrelationship of the child (h) the suitability of the actively support the child’s with his or her parent or parents, residence of the parents; and relationship with the his or her siblings, and any other (i) length of separation from other parent, including whether a person who may emotionally or parents; parent has unreasonably denied psychologically affect the (j) the effect of any prior the other parent access to or child’s best interest; voluntary abandonment or visitation with the child…; Assistance for Needy , surrender of custody of the 7) the relative willingness and or Program on Work, child; demonstrated ability of each Employment, and (k) best interests of the child parent to cooperate in and resolve Responsibilities, and medical (l) willingness of each parent to disputes re: matters affecting the assistance; and share custody; . . . (cont.) child; (Q) the benefit to the parents.” 546 S.E.2d 220 (Va. Ct. App. . . . (cont.) 2001). . . . (cont.)

44

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from ...... above (D) the child’s adjustment to his (m) psychological fitness of 8) the reasonable preferences of or her home, school, and each parent; the child; FACTORS TO BE community; (n) Strength of relationship; 9) history of family abuse; CONSIDERED IN (E) the mental and physical (o) potential disruption of 10) such other factors as are MAKING AN health of all individuals child’s social life; necessary. AWARD involved; (p) geographic proximity of (F) evidence of an intrafamily parents’ homes; Law presumes that the best offense as defined in section 16- (q) demands of parental interests of a child are served by 1001(5); employment; giving custody to the natural (G) the capacity of the parents to (r) age and number of children parent. Smith v. Pond, communicate and reach shared involved; 360 S.E.2d 885 (Va. Ct. App. decisions affecting the child’s 1987). welfare; (s) sincerity of parent’s (H) the willingness of the request; Presumption that best interest of parents to share custody; (t) financial status of parents; the child is in the custody of the (I) the prior involvement of each (u) Impact on state or federal parents applies against parent in the child’s life; assistance; grandparents. Ferris v. (J) the potential disruption of the (v) Benefit to parents; Underwood, 348 S.E.2d 18 (Va. child’s social and school life; (w) Other factors. Ct. App. 1986). (K) the geographic proximity of See Best v. Best, 613 A.2d 1043 the parental homes as this relates (Md. App. 1992); Montgomery There is no presumption of to the practical considerations of County v. Sanders, 381 A.2d custody in favor of a biological the child’s residential schedule; 1154 (Md. App. 1977); Taylor parent over an adoptive parent (L) the demands of parental v. Taylor, 508 A.2d 964 (Md. because when an order of employment; 1986). adoption becomes final, the (M) the age and number of adoptive parent obtains all the children; legal rights and obligations of a (N) the sincerity of each parent’s natural parent. Carter v. Carter, request; (O) the parent’s ability to financially support a joint custody arrangement; (P) the impact on Temporary

JOINT CUSTODY DC has a rebuttable presumption Maryland courts have authority Virginia courts have wide of joint custody to award joint custody, but only discretion and fashioning joint or if in child’s best interests, even shared custody arrangements for DC Code §16-914 (a): when parties do not request it. children if it is in best interests of continued next page (1) … The Court shall make a Kerns v. Kerns, 474 A.2d 925 the children. Crounse v. determination as to the legal (Md. App. 1984); Taylor v. Crounse, 151 S.E.2d 412 (Va. custody and the physical Taylor, 508 A.2d 964 (Md. App. 1966); Andrews v. Geyer, 104 custody of a child. A custody 1986). S.E.2d 747 (Va. 1958). order may include: (i) sole legal custody; Va. Code § 120-124.2(B), the (ii) sole physical custody; court shall assure minor children (iii) joint legal custody; of frequent and continuing (iv) joint physical custody; or contact with both parents, when (v) any other custody appropriate, and encourage arrangement the Court may parents to share in the determine is in the best interest responsibilities of rearing their of the child. children. The court may award joint custody or sole custody.

45

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA continued from . . . above (B) For the purposes of this paragraph, the term: (i) "Legal custody" means legal JOINT CUSTODY responsibility for a child…... (ii) "Physical custody" means a child's living arrangements. …… (2) Unless the court determines that it is not in the best interest of the child, the court may issue an order that provides for frequent and continuing contact between each parent and the minor child or children …… regardless of marital status. There shall be a rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense…., an instance of …, an instance of child neglect….,, or where parental kidnapping…..has occurred….”

VISITATION See DC Code §16-914. Where visitation or custody is Scope of court’s power to award sought over the objection of the visitation now extends to any continued next page parent, before the best interests person with a legitimate interest of the child test can come into including grandparents, play, the third party seeking stepparents, former stepparents, custody or visitation must blood relatives and family establish that the legal parent is members. Va. Code §§ 20-124.1 either unfit or that exceptional and 20-124.2(B). circumstances exist. Janice M v. Margaret K , 404 Md 661 (2008). . . (cont.)

46

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA Continued from . . . above Right to is codified at Md. Fam. Law Code VISITATION § 9-102. The grandparent visitation statute requires a prima facie or threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant deleterious effect upon the subject child (Koshko v. Haining, 398 Md. 404 (2007)). See generally McDermott v. Dougherty 385 Md. 320 (2005); Troxel v. Granville, 120 S.Ct. 2054 (2000). Court can consider a petition and if it is in the best interest of the child, grant visitation. Fairbanks v. McCarter, 622 A.2d 121 (Md. 1993).

Termination of rights as natural parent (adoption) does not preclude grandparents from petitioning for visitation. Beckman, supra.

47

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

PARENTAL No reported appellate cases. See Sewell v. Sewell, 145 A.2d Va. Code § 20 124.5: RELOCATION 422 (Md. 1958) (wife’s desire to Notification of Relocation. A ISSUES leave state was not controlling condition of any custody or but was a factor which, because visitation order is a requirement of the probability that her so that 30 days advance written doing would cut child off from notice be given to court and other any association with his father, party by party intending to could properly be considered in relocate. awarding custody of child). Cases where moves were Relocation is sufficient to allowed: Scinaldi v. Scinaldi, 347 consider changing custody. S.E.2d 149 (Va. Ct. App. 1986); Domingues v. Johnson, 593 Gray v. Gray, 324 S.E.2d 677 A.2d 1133(Md. 1991). (Va. 1985); Simmons v. Simmons, 339 S.E.2d 198 (Va. Md. Fam. Law Code § 9-106: Ct. App. 1986); Sternberg v. Court can require advance Sternberg, Chancery No. 135035, written notification of intent to 1996 Va. Cir. LEXIS 558 (Va. relocate. Cir. Ct. June 20, 1996).

Cases where moves not allowed: Carpenter v. Carpenter, 257 S.E.2d 845 (Va. 1979); Hughes v. Gentry, 443 S.E.2d 448 (Va. Ct. App. 1994); Bostick v. Bostick- Bennett 478 S.E.2d 319 (Va. Ct. App. 1996).

48

CHILD CUSTODY AND VISITATION

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

CUSTODY DC Code § 16-914 (e) (1): Court has continuing jurisdiction Keel v. Keel, 303 S.E.2d 917 MODIFICATION “(1) An award of custody may to modify. Furman v. Glading, (Va. 1983), established the be modified or terminated upon 374 A.2d 414 (Md. App. 1977). applicable test: the motion of one or both 1) Has there been a change in parents, or on the Court's own Where change of circumstances circumstances...; motion, upon a determination affecting the parties or the 2) Would change be in the that there has been a substantial children has occurred since the best interests of the child? and material change in filing of the original decree, the circumstances and that the courts have power to modify, Surles v. Mayer, 628 S.E.2d 563 modification or termination is in but the custody should not be (Va. Ct. App. 2006). the best interest of the child.” disturbed unless there is some See also DC Code §16-914.01. strong reason affecting the welfare of the children. Taylor The judicial standard of review v. Taylor, 229 A.2d 131 (Md. governing the modification of 1967); Sartoph v. Sartoph, 354 custody arrangements A.2d 467 (Md. App. 1976); established by agreement of the McCready v. McCready, 593 parties depends on whether the A.2d 1128 (Md. 1991). original custody arrangements were determined by: (1) private agreement (not reviewed or ratified by the Court) (standard: best interest of the child, see Owen v. Owen, 427 A.2d 933 (DC 1981) and Spires v. Spires, 743 A.2d 186 (D.C. 1999)); or (2) private agreement that was subsequently reviewed and ratified by the Court (through incorporation or merger) (standard: best interest of the child, changed circumstances not contemplated by the parties at the time of the agreement, and the terms of the agreement are afforded due deference, see Rice v. Rice, 415 A.2d 1378 (DC 1980) and Galbis v. Nadal, 626 A.2d 26 (DC 1993).

Modification must conform to requirements of the UCCJEA. DC Code § 16-4602.03.

49

ATTORNEY’S FEES

DISTRICT OF COLUMBIA MARYLAND VIRGINIA

WHEN Pendente lite and permanent Court may award attorney’s fees Yes. Va. Code § 20-79. Also in AVAILABLE alimony and child support, DC and costs. Md. Fam. Law Code contempt proceeding to enforce Code §16-911 (a) (1) and §16- §§7-107, 8-214 and 12-103; court order relating to child 916 (a) and (c). Custody – Bagley v. Bagley, 632 A.2d 229 support. Edwards v. Lowery, 348 attorney for the child: §16-918 (Md. App. 1993). “Costs” S.E.2d 259 (Va. 1986). includes suit money, travel Proper factors for the court to expenses etc. Bracone v. weigh in determining the Bracone, 295 A.2d 798 (Md. amount of attorney's fees App. 1972). awarded are the quality of the services rendered, the skills of counsel, the result of litigation, the difficulty of the case, and the ability of pay attorney’s fees, as well as the respective capacity of the parties. Rachal v. Rachal, 489 A.2d 476 (DC 1985).

PENDENTE LITE DC Code § 16-911(a) (1) allows Yes. Yes. Va. Code § 20-79. AWARDS suit money including counsel fees, pendente lite. Md. Fam. Law Code § 11-110 (a)(3) allowing trial court to award reasonable expenses at any point.

See also Guarino v. Guarino, 684 A.2d 23 (Md. App. 1996).

50