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101 Cards in this Set
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What is a bailment |
The relationship created by the transfer of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose. There’s no transfer of title to the bailee |
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What are the elements of a Bailment |
1. The bailee must possess the property manifesting physical custody coupled with an intent to exercise control, 2. the bailee must consent to possession of the property,
3. the bailee must have actual or constructive knowledge of the article’s presence |
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What is the difference between a bailment and A lease |
The owner retains control in a lease |
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What’s the difference between a bailment and an employer -employee transaction |
Ordinary possession of an employers goods by an employee does not amount to a bailment because the control of the goods remains with the employer due to the fact that the employee is subject to orders in control of the employer |
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What’s the difference between a Bailment and a consignment |
A consignee is authorized to sell the goods in the ordinary course of trade, therefore a consignment may be described as a special bailment for the purpose of sale |
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Where is the risk of loss in a bailment Versus a sale |
A sale involves transfer of title to the vendee while a bailment only involves transfer of possession to the bailee.. |
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What is the general rule the distinguishes a bailment from a sale |
When the identical thing delivered is to be returned in the same or altered form, the contract is a bailment, but when there was no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value or the money value and the title to the property changed it’s a cell |
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What is sale on approval and sale on return |
Sale on approval is a bailment with the bailee having an option to purchase. Sale on return is a sale with the vendee having a privilege to reinvest title in the vendor, and upon notice the vendee becomes a bailee |
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What is a pledge |
A pledge is a type of bailment in which the bailor delivers his property to the bailee to secure an obligation owned by the bailor to the bailee |
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What is the doctrine of intra hospitum? |
A hotel or innkeeper is an insurer of goods of a guest taken into custody and control of the hotel, and is liable unless the loss or damage was caused by active God, a public enemy, or fault of the guest |
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What are the bailee’s rights in bailed chattel |
The rights of possession and use |
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What does the bailee’s right in possession entail |
Bailee Has the exclusive right of possession even against the owner, as long as bailee Is exercising possession according to the terms and conditions of the bailment. A creditor has no right to take the bailed goods by attachment |
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What are the elements of the bailee’s right of use |
Normally the bailee Has **no right **to use the subject matter of the bailment unless there is an express provision in the contract or there are circumstances were such an intent is presumed. **Intentional unauthorized use of the goods that results in loss or damage renders the bailee ***absolutely liable **to the bailor **irrespective **of the question of **care or negligence** |
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What is the relationship between bailment and detinue |
When bailed goods have been lost or damaged due to the wrongful acts of the bailee, the Baylor can maintain an action for damages in tort or contract for detinue or for conversion |
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What causes of action can bailor take against third parties |
A bailor may bring an action for conversion or detinue in the event of a terminable bailment in which the bailor can treat the bailment as having ended and sue the third-party |
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Can the bailor bring an action for damage to the future right of possession |
Yes this is a suit for injuries to the reversionary interest, and any negligence not imputed to the bailor. the sole issue is whether the third-party was negligent |
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Can bailor bring a lawsuit in trover or detinue During the life of the bailment |
No because these lawsuits are predicated on the immediate right to possession. |
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What are the duties of a bailee |
The duty of care, Duty to re-deliver, duty to interplead all claimants if there are adverse claims to the property and liability to third parties for inappropriate use of the bailed property |
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How much diligence is required when the bailment is solely for the Bailors benefit |
Only slight diligence is required and liability rests on gross negligence |
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How much diligence is required when the Baiment is solely for the benefit of the bailee |
Great diligence is required and liability will result from slight negligence |
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How much diligence is required and bailments for a hire and pledges for the mutual benefit of Bailee and Bailor |
Ordinary due care is required |
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What amounts to the prima facie showing of negligence in a bailment |
The bailor can make a threshold case of negligence by showing delivery of the goods to the bailee and the bailee’s failure to re-deliver the goods or re-delivery of damaged goods |
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What is the threshold showing that must be made in order to recover under a contract theory of bailment |
Plaintiff must show there was a bailment contract and the Bailee’s failure to perform by failing to return the goods or returning them in a damaged state |
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How can bailment liability be limited |
The limits are waiver and a posted sign . hotels may limit liability for articles placed in their care by providing notice. |
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How does waiver work to limit bailment Liability |
An ordinary bailee may exempt herself from her own negligence |
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Is a waiver of liability for negligence by a professional bailee permitted by law |
No |
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How can bailor At least limit liability |
The bailor must know of the limitation and consent. Only liability for ordinary negligence may be limited |
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No I posted sign does not limit liability unless the Baylor |
No I posted sign does not limit liability unless there is proof the Bailor Read the sign or under the circumstances should have |
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Will bailee absolutely be held strictly liable if someone shows up with a forged claim check |
No if there is a forged claim check what would be referred to as an indispensable instrument the bailee will not be held strictly liable |
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What are the requirements of a detinue petition? |
A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing.
A petition in detinue for pretrial seizure pursuant to this article may be filed either to commence the detinue proceeding or may be filed during the pendency of a detinue proceeding which commenced on a warrant or motion for judgment. If a petition is filed, it shall:
1. Describe the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;
2. Describe the basis of the plaintiff's claim of entitlement to recover the property, with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and, if based on a contract to secure the payment of money, the amount due on such contract; and
3. Allege one or more of the grounds mentioned in § 8.01-534 and set forth specific facts in support of such allegation. Further, if a petition is filed, a judge, or a magistrate appointed pursuant to Article 3 (§ 19.2-33 et seq.) of Chapter 3 of Title 19.2, may issue an order or other process directed to the sheriff or other proper officer, as the case may be, commanding him to seize the property for the recovery of which such action or warrant is brought, or a specified portion thereof, and deliver same to the plaintiff pendente lite under the circumstances hereinafter set forth.
B. The judge or the magistrate may issue such an order or other process in accordance with the prayer of the petition after an ex parte review of the petition only upon a determination that: (i) the petition conforms with subsection A and (ii) there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist. The plaintiff praying for an order shall, at the time that he files his petition, pay the proper costs, fees and taxes, and in the event of his failure to do so, the order shall not be issued.
C. The judge or magistrate, as the case may be, may receive evidence only in the form of a sworn petition which shall be filed with the papers in the cause.
D. The order commanding the seizure of property shall be issued and served together with the form for requesting a hearing on a claim of exemption from seizure as provided in § 8.01-546.1. The order shall be issued and returned as provided in § 8.01-541 and may be issued or executed on any day, including a Saturday, Sunday or other legal holiday. Service shall be in accordance with the methods described in § 8.01-487.1. The provisions of § 8.01-546.2 shall govern claims for exemptio |
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What is the standard measure of damages in the contracts case |
The standard measure of Damages in a contract case will be expectation damages that would put the plaintiff in the position to buy a substitute |
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If expectation damages are speculative can the plaintiff recover reliance damages |
Yes |
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What are reliance damages |
Reliance damages represent the cost the plaintive has incurred by performing |
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Are lost profits of a business that did not open on time to speculative to recover |
Yes |
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How are damages for the sale of goods measured |
Damages for the sale of goods are measured by the difference between the contract price or the market price when the seller tenders the goods or when the buyer learns of the breach |
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How are damages for the sale of goods measured |
Damages for the sale of goods are measured by the difference between the contract price or the market price when the seller tenders the goods or when the buyer learns of the breach |
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Under the UC see if the buyer breaches may the seller withhold delivery or stop delivery by the carrier |
Yes and the seller may also resell the goods and recover the difference plus incidental damages minus expenses saved as a result of the bridge or recover Ordinary contract damages for non-acceptance |
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Under the UCC if the buyer has already accepted the goods or if the seller is unable to resell identified goods can the seller recover the contract price |
Yes |
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Are lost profits available if the buyer breaches and the seller is a lost volume seller |
Yes |
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What happens if the seller breaches |
If the seller breaches under the UCC the buyer may reject non-conforming goods, cancel, cover, recover goods identified to the contract, obtain specific performance in some cases, or recover damages for non-delivery. |
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How are damages for contracts for sale of land measured |
By the difference between the contract price and the fair market value |
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How are damages for breach of employment contracts measured |
If the breach is by the employer the measure is the full contract price less wage is actually earned elsewhere after the breach. if the breach is by the employee the measure is whatever it cost to replace the employee. The modern view allows the employee to offset any money due from work done to date |
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How are damages measured for breach of construction contracts |
Breached by the owner, the builder will be entitled to profits that he would’ve resulted from the contract plus any costs expended. |
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On a construction contract if the contract is breached after construction is completed how are the damage is measured |
The measure is the full contract price plus interest |
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If the contract is breached by the builder what is the measure of damages |
The owner is entitled to the cost of completion plus reasonable compensation for the delay |
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2 quarts allow the builder in a contract breach to offset or a cover for work performed to date |
Yes to avoid unjust enrichment of the owner |
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I have to breaches only late performance what’s the measure |
The owner is entitled to damages incurred because of late performance |
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What’s the measure of damages in contracts calling for installment payments |
If the payment is not made there’s only a partial bridge. The aggrieved party is limited to recovering only the missed payment not the entire contract price |
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Do britches on installment payments sometimes include an acceleration clause |
Yes and the acceleration clause makes the entire amount due on any late payment in which case they agree party may recover the entire amount |
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What are consequential damages |
They are awarded in addition to the standard measure and will be given if a reasonable Person would have seen at the time of entering the contract that’s such a damages would result from the breach. |
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On consequential damages does the plaintive bear the burden of proving the foreseeability of damage is worse special circumstances are involved. |
Yes including whether those special circumstances were made clear to the other party at the time of contract formation |
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Or punitive damages generally awarded in commercial contract cases |
No punitive damages Are generally not awarded in contract cases |
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What are nominal damages |
For example one dollar they may be awarded where a breach is shown but no actual loss is proven |
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What are liquidated damages |
Liquidated damages are presented in certain legal contracts as an estimate of otherwise intangible or hard-to-define losses to one of the parties. It is a provision that allows for the payment of a specified sum should one of the parties be in breach of contract. |
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When is a liquidated damages provision found to be valid |
If the damages were difficult to ascertain at the time the contract was formed, and the amount agreed-upon was a reasonable forecast of compensatory damages |
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When is a liquidated damages provision found to be valid |
If the damages were difficult to ascertain at the time the contract was formed, and the amount agreed-upon was a reasonable forecast of compensatory damages |
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If the two criteria of liquidated damages are met will the plaintive receive the liquidated damages amount even though no actual money damages have been suffered |
Yes |
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When is a liquidated damages provision found to be valid |
If the damages were difficult to ascertain at the time the contract was formed, and the amount agreed-upon was a reasonable forecast of compensatory damages |
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If the two criteria of liquidated damages are met will the plaintive receive the liquidated damages amount even though no actual money damages have been suffered |
Yes |
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What happens if the liquidated damages amount is unreasonable |
The courts will construe this as a penalty and will not enforce the provision |
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When is a liquidated damages provision found to be valid |
If the damages were difficult to ascertain at the time the contract was formed, and the amount agreed-upon was a reasonable forecast of compensatory damages |
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If the two criteria of liquidated damages are met will the plaintive receive the liquidated damages amount even though no actual money damages have been suffered |
Yes |
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What happens if the liquidated damages amount is unreasonable |
The courts will construe this as a penalty and will not enforce the provision |
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Under the UC see rule Kenacort consider the actual damages incurred in determining whether a liquidated damages clause as valid |
Yes |
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What is a lost volume seller |
a seller who sells to a buyer after a previous buyer has breached a contract for sale but who would have been able to make a sale to the second buyer even if the first buyer had not breached |
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What’s the simplest way to recite the mailbox rule |
All communications other than acceptance are affective when received acceptance is effective when sent |
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What is the fee simple determinable With possibility of reverter |
An estate that terminates upon the happening of a stated event and automatically reverts to the grantor. Words used include for so long ass, while, during, or until. |
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What is the fee simple subject to a condition subsequent and right of reentry |
This is a fee simple in which the grantor reserves the right to terminate the estate upon the happening of a stated event. It does not terminate automatically. Words used or upon condition that, provided that, but if, and if it happens that. |
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What is the possibility of reverter |
It is the possibility that the estate terminates automatically and goes back to the grantor. It is transferable descendable and advisable |
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What is a right of entry |
It is the right to terminate reserved by the grantor it must be expressly reserved it does not rise automatically. Most states agree they are advisable. All states agree they are the cinderblock |
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What is a fee simple subject to an executory interest |
It’s an estate the terminates upon the happening of a stated event and then passes to a third-party. The third-party has an executory interest |
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What are the defeasible fees |
**Fee simple determinable and possibility of reverter, **fee simple subject to a condition subsequent and right of reentry, **fee simple subject to an executory interest |
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What is an easement appuretnant |
An appurtenant easement is a right to use adjoining property that transfers WITH the land. The parcel of land that benefits from the easement is the dominant tenement. The servient tenement is the parcel of land that provides the easement. The appurtenant easement always transfers with the land unless the owner of the dominant tenement releases it. The land subject to the easement appurtenant is the servient estate, the land benefited the dominant estate. However, if the easement is held incident to ownership of some land, it is an easement appurtenant. |
An easement is appurtenant When it benefits the holder in his physical use or enjoyment of another tract of land. |
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Does an appurtenant easement have to be specifically mentioned in a deed |
NO!!!! The appurtenant easement passes with the benefited land. Don’t be fooled by questions that make you think it must be specifically mentioned in the deed. It cannot be conveyed apart from the dominant tournament but it can be extinguished |
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What is an easement in gross |
An easement in gross attaches to an individual and benefits the holder rather than another parcel of land. An easement and gross for the holders personal pleasure for example a right to swim in the pond is not transferable, but one that serves an economic or commercial interest like the right to Recht billboards is transferable |
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Can the grantor reserve an easement for himself |
Yes |
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Kind of grantor of an easement reserve the easement for someone else |
No under the majority rule an easement can be reserved only for the grantor. And attempt to reserve the easement for anyone else is void |
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What is an easement by implication |
It’s created by operation of law and an exception to the statute of frauds |
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What are the types of easement by implication |
It’s implied from existing use also known as a **quasi-easement, an easement **implied WITHOUT any existing use for example when lots are sold in the subdivision with reference to a recorded plat ***an easement by necessity like a utility line or an **easement by prescription which is analogous to acquiring property by adverse possession |
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There are three future interest that can be created by the grantor. what are they? |
The ***possibility of reverter ** the right of entry also known as the power of termination and **the reversion. To A for |
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There were three future interests that can be held by someone other than the grantor. what are they? |
The vested reminder, the contingent remainder, the executory interest |
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What’s the vested remainder |
It’s vested if it’s both created in ascertained persons and it’s not subject to any condition |
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What is it contingent remainder |
It’s created in an ascertained person or is subject to a condition or both |
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What is it tenancy at sufferance |
Hold-over" tenancy after a lease has expired, but before the landlord has demanded that the tenant quit (vacate) the premises. During a tenancy at sufferance the tenant is bound by the terms of the lease (including payment of rent) which existed before it expired. The only difference between a "tenancy at sufferance" and a "tenancy at will" is that the latter was created by agreement |
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What are the starting sentences for a question on chain of title ? |
“EVERY CONTRACT CONTAINS AN IMPLIED WARRANTY THAT THE SELLER WILL PROVIDE MARKETABLE TITLE THAT MUST BE FREE OF QUESTIONS THAT PRESENT AN UNREASONABLE RISK OF LITIGATION |
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What are the English covenants |
Grantor has a **right to convey **free from encumbrances **has not encumbered the property himself **grantee shall have quiet enjoy |
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When is time of the essence in the contract |
When the contract says: Time is of the essence, circumstances indicate that was the parties intent, or one party gives the other notice the time is of the essence essence |
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If time is of the essence an a party feels to tender performance on the closing date Is the non-tendering party in breach |
Yes an a party who is late is liable for incidental losses |
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What happens if neither party tenders performance |
The buyers obligation to pay in the sellers obligation to convey or concurrent conditions so if neither party tenders performance the closing date is extended until one of them does |
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When is the parties tinder of performance excused |
A party need not tinder performance if the other party has repudiated the contract or Performance is impossible for example in on marketable title that cannot be cured |
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What’s the remedy for breach of the sales contract |
The nonbreaching party is entitled to damages which are the difference between the contract price and the market value on the date of breach plus incidental costs or because the land is unique the nonbreaching party may be entitled to specific performance with an abatement of the purchase price if she wants to proceed despite unmarketable title |
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What must’ve played a show in a detinue petition |
Plaintiff must allege and prove the following : **the plaintiff has a current right to the property, **the plaintiff has a right to immediate possession, **the property is capable of possession, **the property has value, and the **defendant had possession of the property prior to filing. **The plaintiff must also post a double bond |
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What is the exclusive subject matter jurisdiction of General District Court in Virginia |
Motors with the value up to and including $4500 exclusive of interest |
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Is there any statutory authority for a jury trial in the General District Court in Virginia |
No there is no statutory authority for a jury in the General District Court. Only the circuit courts are authorized to conduct jury trial |
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Does Virginia require written authorization of an agent |
No not even when the underlying contract falls within the statute of frauds |
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What are the elements of an inter vivos gift |
Donative intent, delivery, And acceptance |
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Categories to determine venue |
The three are residential transactional and fall back on residential one of the defendants pass to reside in the state and one of the defendants hast to reside in the district |
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What are the grounds of divorce |
Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which the parties are legally separated from each other but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated. The law requires that "grounds" (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the parties agree that a marriage should end. These grounds are briefly described below.
Divorce from Bed and Board a. Willful desertion or abandonment
Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion. Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.
b. Cruelty and reasonable apprehension of bodily harm
Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice.
Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act(s) of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.
Divorce from the Bond of Matrimony a. Separation divorce — the "No Fault" divorce
While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year one of the parties intended to and the parties have continuously lived separate and apart without any cohabitation. If the parties have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.
Although separation provides a "faultless" ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though "no fault" separation grounds exist, conversely a judge is free to award a “no fault divorce” even if fault grounds exist.
b. Adultery, sodomy, or buggery
Proving adultery is very fact-specific. The evidence must be strict, satisfactory, and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, "eyewitness" testimony as to the adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery. Suspicion or speculation is not enough.
The "guilty" spouse has a number of "defenses" to the charge of adultery, sodomy, or buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.
c. Conviction of a felony
If a spouse has been convicted of a felony, sentenced to confinement for more than one year, and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.
Annulments Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress, or coercion. An annulment cannot be granted merely because the marriage is of short duration, and legal annulments are normally not granted for "religious" reasons.
2. How Are Property and Debt Divided at Divorce?
Virginia statutes now provide for the "equitable" distribution of the marital property and marital debt between the parties at the conclusion of the divorce. "Marital property" consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. "Separate property" is property owned by one party prior to the marriage, property acquired after the parties have separated, or inherited property and/or gifts to one party from a third person. Where "marital property" and "separate property" are mixed together or where the value of "separate property" is increased through the active efforts of either party during the marriage, then such property may be classified as "marital property" or as "part marital and part separate" property. In general, debt is considered “marital debt” if it is in the joint names of the parties and was incurred before the date of the last separation of the parties or, for debt that is in only one party’s name, if the debt was incurred after the date of marriage and before the date of the last separation of the parties. On the other hand, “separate debt” is debt incurred in only one party’s name before the marriage or after the date of the final separation of the parties. In determining whether a debt is marital or separate, the court may also consider the reason a debt was incurred.
In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold, or transfer jointly-titled marital property to one of the parties. The courts may also divide responsibility for marital debts. Under Virginia's system of "equitable distribution," the court is not required to divide the marital property or marital debts on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well- being of the family and to the acquisition and care of the marital property. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party's pension or retirement plan that accumulated during the marriage.
3. When is Spousal Support Awarded?
Given the increasing changes to both the law and society, this area of divorce law is in the process of some revision. While a party who commits adultery is at risk of not receiving spousal support, under recent changes in the Virginia law, the fault of a spouse in causing a divorce may no longer be a complete bar to obtaining spousal support. The court must now consider the fault of the "guilty" spouse in the amount and duration of the award..
Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. The amount awarded for support depends upon such factors as the respective ages of the parties, assets and earning potential of the parties, and the duration and history of the marriage. The court may award spousal support in periodic payments and/or in a lump. Periodic payments could be awarded for either a set number of years or an indefinite period of time. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party. The court may also require maintenance of an existing life insurance policy by the spouse who is paying spousal support under certain circumstances.
Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a "reservation" of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage.
4. Who Receives Custody of the Children?
This is the crucial issue in most divorces. In determining the custody of minor (under 18) children, the court is guided by one standard: the best interest of the child. The court may award "joint legal custody" where both parents have a role in making decisions for the child, or "sole legal custody" where one parent is ultimately responsible for making decisions in the child's best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a material change in circumstances after the date of the divorce.
Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live, and the child's wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.
Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will have scheduled time with the child. Time sharing between the parents will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.
5. What are the Child Support Obligations?
Each parent is expected to contribute to the support of the minor child. Depending on the time sharing schedule, the difference between the parties’ incomes, and other factors, there may be a child support payment that is owed between the parents. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both of the parents or of the child. Depending on the time sharing schedule, the court may use a “shared custody” guideline (where both parents have more than ninety days per year with the child) or a “sole custody” guideline, where one parent has fewer than ninety days per year. Both guidelines take into account the cost of work-related childcare and health insurance premiums for the child. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies.
The court can also apportion tax exemptions for the children between the parties.
6. What is a Property Settlement Agreement?
Rather than having the court rule upon the issues in the case, parties have the option of reaching a voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing the marital property may also be enforceable, but only if they meet certain strict requirements.
A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of each spouse in the estate and property of the other. An attorney's skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.
7. What are the Court Procedures?
Controversies over custody, child support, and spousal support are usually heard before a judge of a circuit court. In some cases, such as where no grounds for divorce yet exist, such matters may be heard in a juvenile and domestic relations district court, independent of the suit for divorce. Depending upon the practices in a given locality, evidence in a divorce case may be taken in the office of an attorney representing one of the parties, in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge.
8. Are Attorneys Necessary? Who Pays the Fees?
Although an attorney is technically not required in a divorce proceeding, each spouse should obtain separate legal counsel if there are issues in the divorce that may be contested, property rights need to be determined, or the custody of the children is in dispute. The same attorney cannot represent both sides in a divorce case because there will be a conflict of interests. |
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What are the grounds for DETINUE |
KIND, quantity and Fair market value and ENTITLEMENT, then state one or more of the grounds of attachment: Defendant is leaving the state with the property or converting it unlawfully |
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In Virginia is there a presumption that a trust is revocable |
Yes the presumption is the trust is revocable unless it has been declared irrevocable |
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What are the four factors in determining whether an individual is an employee or an independent contractor under respondet superior |
They hire me they fire me that pay me they control HIRING/DISMISSAL/PAYMENT/control SPPC//Selection/payment!power of dismissal /CONTROL |
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