| Publication Date: | 2023 |
| Electronic Forms: | 102 |
| Available Formats: | Print (830 pages, softcover, 1 volume, forms CD) |
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| Product #: | 859 |
“The only Virginia practice manual devoted to the law and practice of drafting marital agreements, this comprehensive book includes detailed discussion of the statutory and case law which underlie the wording of the agreement clauses. Thus, the practitioner is armed not only with the legal and practical reasons for the chosen language, but the tools to defend their choice of wording.” – Richard E. Crouch, editor
Separation agreements are a significant and vital part of every divorce lawyer’s practice. Negotiating and Drafting Marital Agreements provides sample clauses and over 100 forms for creating a marital agreement that is tailored to the needs of both clients while meeting the requirements of Virginia’s statutory scheme and avoiding unwanted outcomes caused by case law or unforeseen events. Prepared by experienced practitioners, the forms include alternative language that may suggest creative solutions to the most difficult dilemmas that can arise when couples separate.
Revisions in this 2023 edition take into consideration, as part of the child support calculation, the payment of unreimbursed medical costs for a child born when the parties were in the process of separating, and also costs paid by either party before birth for the benefit of that child. The child support statutes now state that a party’s incarceration for more than 180 days is no longer to be considered voluntary unemployment, but rather treated as a material change of circumstances. The book includes many new appellate decisions, including one from the Court of Appeals that clarifies that the parties’ failure to resolve every issue in a separation agreement did not invalidate its other terms. New 2023 legislation will also streamline how an attorney can perfect an attorney’s lien, including for domestic relations clients.
1.1 THE MARITAL AGREEMENT GENERALLY
1.101 Advantages
1.102 Caveats
1.2 ETHICAL CONSIDERATIONS
1.201 In General
1.202 The Virginia Rules of Professional Conduct
1.203 Communication with the Client
1.204 Client Confidences
1.205 Conflicts of Interest Generally
1.206 Identifying the Client
1.207 Subsequent Representation
1.208 Fees
1.209 Representing an Impaired Client
1.210 Misconduct
1.3 EVALUATING THE CLIENT’S POSITION
1.301 Information to Be Obtained from the Client
1.302 Information to Be Provided to the Client
1.303 Maintaining Communication with the Client
1.304 Controlling the Client
1.4 ADDITIONAL CONSIDERATIONS
1.401 Client Activities
1.402 Emotional Concerns
1.403 Other Considerations
1.5 THE ESSENCE OF NEGOTIATION
1.501 “Negotiation” Defined
1.502 Elements of Negotiation
1.503 Negotiating Styles and Techniques
1.504 Creativity
1.505 Reasonable Demands and Ultimatums
1.506 Compromise
1.507 Ranking the Client’s Priorities
1.508 Conduct Conducive to Settlement
1.509 Readiness for Trial
1.510 Summary
1.6 STRATEGIES AND TACTICS
1.601 Initial Contact with the Opposition
1.602 Nature of Contact
1.603 Additional Tactics to Break an Impasse or Gain Leverage
APPENDIX 1-1: MARITAL AGREEMENT CHECKLIST
APPENDIX 1-2: CLIENT INTERVIEW
APPENDIX 1-3: CLIENT FACT SHEET
APPENDIX 1-4: CHECKLIST OF SUPPORTING DOCUMENTS TO BE
FURNISHED IF APPLICABLE
APPENDIX 1-5: SCHEDULE OF ASSETS AND LIABILITIES
APPENDIX 1-6: MASTER INFORMATION LIST
APPENDIX 1-7: INCOME/EXPENSE EXHIBIT
APPENDIX 1-8: CHILD-REARING EXPENSES CHECKLIST
APPENDIX 1-9: CUSTODY GUIDELINES
APPENDIX 1-10: INFORMATION AND FEE AGREEMENT FOR
DOMESTIC RELATIONS MATTERS
APPENDIX 1-11: CHECKLIST ON BUSINESS VALUATIONS
APPENDIX 1-12: INTEREST IN A CLOSELY HELD CORPORATION
APPENDIX 1-13: OWNERSHIP IN A CASH BUSINESS
APPENDIX 1-14: CONTRACT FOR MEDIATION
APPENDIX 1-15: MEMORANDUM OF UNDERSTANDING—
SAMPLE PARAGRAPHS
APPENDIX 1-16: MOTION TO APPOINT JUDGE PRO TEMPORE
APPENDIX 1-17: STIPULATION TO APPOINT JUDGE
PRO TEMPORE
APPENDIX 1-18: ORDER APPROVING APPOINTMENT
OF JUDGE PRO TEMPORE
APPENDIX 1-19: SUMMARY CHECKLIST OF PRACTICAL
CONSIDERATIONS BEARING ON THE
NEGOTIATION/LITIGATION PROCESS
APPENDIX 1-20: ADDENDUM FOR PROTECTED IDENTIFYING
INFORMATION—CONFIDENTIAL
2.1 NONMARITAL AGREEMENTS
2.101 In General
2.102 Theories of Recovery
2.103 Express Contract Theory
2.104 Cohabitant Claims in Virginia
2.105 Written Agreements Between Cohabitants
2.2 PREMARITAL AGREEMENTS
2.201 The Virginia Premarital Agreement Act
2.202 Case Law Under the Premarital Agreement Act
2.203 Reasons for Premarital Agreements
2.204 Consideration
2.205 Requisites for Validity
2.206 Attacks on Validity
2.207 Void Marriages
2.208 Contents of Agreement
2.209 Drafting Considerations
2.210 Estate Planning Issues
2.211 Marital Agreements
2.3 RECONCILIATION AGREEMENTS
APPENDIX 2-1: PARTNERSHIP AGREEMENT
APPENDIX 2-2: PREMARITAL AGREEMENT
APPENDIX 2-3: SAMPLE NONABROGATION PARAGRAPH FOR
MARITAL AGREEMENT
APPENDIX 2-4: RECONCILIATION AGREEMENT
APPENDIX 2-5: PREMARITAL AGREEMENT—SHORT FORM
3.1 SUPPORT AND PROPERTY PROVISIONS GENERALLY
3.101 Preparation
3.102 Tax Considerations
3.103 Practical Aspects
3.104 Undisclosed Assets
3.105 Nonincluded Assets
3.106 Merger Versus Nonmerger
3.107 Effect of Reconciliation
3.108 Marital or Reconciliation Agreements
3.2 CHILD SUPPORT PROVISIONS
3.201 In General
3.202 Modification by Court
3.203 Temporary Provisions
3.204 Amount of Child Support
3.205 Duration of Child Support
3.206 Modification
3.207 Waivers, Indemnification, or Prepayment
3.208 Enforcement
3.209 Use of Funds and Accountability
3.210 Dependency Tax Exemption
3.211 College Education
3.212 Bankruptcy
3.213 Trust Funds
3.214 529 Education Savings Plans
3.215 Child Health Insurance Coverage
3.3 SPOUSAL SUPPORT PROVISIONS
3.301 In General
3.302 Special Considerations
3.303 Temporary Provisions
3.304 Waivers
3.305 Fault Grounds
3.306 Retirement
3.307 Amount of Support
3.308 Duration of Support
3.309 Modification
3.310 Enforcement
3.311 Cohabitation
3.4 UNITARY SUPPORT PROVISIONS
3.401 In General
3.402 Modification
3.5 OTHER SUPPORT CONSIDERATIONS
3.501 Liability of the Payor’s Estate
3.502 Automatic Modification Provisions (“Escalator Clauses”)
3.503 Medical and Dental Expenses
3.504 Disability Benefits Policy
3.505 Joint Income Tax Returns
3.506 Attorney Fees for Enforcement
3.507 Emergency Funds
3.508 Debts
3.6 PERSONAL AND REAL PROPERTY GENERALLY
3.601 Judicial Authority
3.602 Taxes
3.603 Enforcement
3.7 REAL PROPERTY
3.701 In General
3.702 Transfer to One Owner
3.703 Sale of Property
3.704 Entireties Property
3.705 Marital Residence
3.8 PERSONAL PROPERTY
3.801 In General
3.802 Division of Property
3.803 Specific Personal Property
3.804 Motor Vehicles
3.805 Deferred Compensation (Pension, Profit-Sharing,
and Retirement Benefits)
3.806 Partnerships
3.807 Corporations
3.808 Loans
3.809 Trusts
3.9 LIFE INSURANCE
3.901 In General
3.902 Where No Protection Is Needed
3.903 Where Protection Is Needed for a Support Recipient
3.904 The Policy Itself
3.905 Transfer of Ownership to the Beneficiary
3.906 Death Benefits
3.907 Beneficiary Designation Revoked by Divorce
APPENDIX 3-1: PROVISION ALLOWING FOR LATER INSERTION
OF OMITTED LANGUAGE
APPENDIX 3-2: UNDISCLOSED/NOT INCLUDED ASSETS
APPENDIX 3-3: EFFECT OF RECONCILIATION
APPENDIX 3-4: TEMPORARY CHILD SUPPORT PROVISIONS
APPENDIX 3-5: REGULAR CHILD SUPPORT PROVISIONS—
INFORMATION AND GENERALLY
APPENDIX 3-6: REGULAR CHILD SUPPORT PROVISIONS—
APPLICATION OF GUIDELINES
APPENDIX 3-7: REGULAR CHILD SUPPORT PROVISIONS—
FINANCES OF THE PARTIES
APPENDIX 3-8: REGULAR CHILD SUPPORT PROVISIONS—
AMOUNT AND DURATION
APPENDIX 3-9: CHILD SUPPORT GUIDELINES WORKSHEETS
APPENDIX 3-10: EMANCIPATION EVENT
APPENDIX 3-11: MODIFICATION PROVISIONS
APPENDIX 3-12: DEPENDENCY EXEMPTION PROVISIONS
APPENDIX 3-13: EDUCATION PAYMENT PROVISIONS
APPENDIX 3-14: EDUCATIONAL TRUST FUND PROVISIONS
APPENDIX 3-15: MEDICAL AND DENTAL PROVISIONS
APPENDIX 3-16: WAIVERS AND RESERVATIONS
APPENDIX 3-17: LUMP SUM SPOUSAL SUPPORT PROVISIONS
APPENDIX 3-18: LUMP SUM SPOUSAL SUPPORT PAYABLE
MONTHLY
APPENDIX 3-19: LUMP SUM PAYABLE PARTLY UPON
EXECUTION AND BALANCE MONTHLY
APPENDIX 3-20: MONTHLY FIXED SPOUSAL SUPPORT
APPENDIX 3-21: MONTHLY VARIABLE SPOUSAL SUPPORT
FOR A NON-FIXED TERM
APPENDIX 3-22: MONTHLY FIXED LEVEL SPOUSAL SUPPORT
FOR FIXED TERM
APPENDIX 3-23: MONTHLY FIXED LEVEL SPOUSAL SUPPORT
FOR TERM OF THREE YEARS OR LESS
APPENDIX 3-24: SPOUSAL SUPPORT FOR THREE-YEAR
PERIOD—PARTIAL NONMODIFIABILITY
APPENDIX 3-25: MONTHLY STAGGERED SPOUSAL
SUPPORT FOR FIXED TERM (OF MORE THAN
THREE YEARS)
APPENDIX 3-26: TAX CONSEQUENCES
APPENDIX 3-27: REINSTATEMENT ALIMONY
APPENDIX 3-28: OBLIGATION OF ESTATE
APPENDIX 3-29: SPOUSAL SUPPORT MODIFICATION
PROVISIONS
APPENDIX 3-30: COHABITATION
APPENDIX 3-31: OTHER SUPPORT CONSIDERATIONS—
ISABILITY
APPENDIX 3-32: OTHER SUPPORT CONSIDERATIONS—
AX RETURNS
APPENDIX 3-33: COUNSEL FEES
APPENDIX 3-34: EMERGENCY FUND
APPENDIX 3-35: DEBTS
APPENDIX 3-36: SPOUSAL SUPPORT IN LIEU OF PROPERTY
APPENDIX 3-37: TAX EFFECTS OF PROPERTY TRANSFERS
APPENDIX 3-38: REAL PROPERTY PROVISIONS
APPENDIX 3-39: PERSONAL PROPERTY PROVISIONS
APPENDIX 3-40: MOTOR VEHICLES
APPENDIX 3-41: DEFERRED COMPENSATION
APPENDIX 3-42: PARTNERSHIPS, CORPORATIONS,
BUSINESS INTERESTS, LOANS, AND TRUSTS
APPENDIX 3-43: LIFE INSURANCE
APPENDIX 3-44: RETIREMENT OF THE PARTIES FOR
PURPOSES OF SPOUSAL SUPPORT MODIFICATION
APPENDIX 3-45: TCJA TAX TREATMENT OF SPOUSAL
SUPPORT IN MODIFICATION AGREEMENTS
APPENDIX 3-46: SPOUSAL SUPPORT PAYMENTS FOR POSTDECEMBER
31, 2018 AGREEMENTS
4.2 PHYSICAL CUSTODY
4.201 Custody Schedules Generally
4.202 Fixed Custodial Schedules
4.203 Liberal Parenting Time
4.204 Custodial Exchanges
4.3 LEGAL CUSTODY
4.301 In General
4.302 Sole Legal Custody
4.303 Joint Legal Custody with Physical Custody
to One Parent
4.304 Joint Custody During Parenting Time
4.305 Resolving Disagreements
4.306 Religion and Legal Custody
4.4 SOLE CUSTODY
4.401 In General
4.402 Conditional Parenting Time
4.403 Benefits of Sole Custody
4.404 Disadvantages of Sole Custody
4.5 JOINT CUSTODY
4.501 In General
4.502 Benefits of Joint Custody
4.503 Disadvantages of Joint Custody
4.504 Considering and Preparing for Joint Custody
4.505 Joint Custody with Romantic Partner Restrictions
4.6 FACTORS TO CONSIDER IN ANY CUSTODY AGREEMENT
4.601 Avoiding the Words “Custody” and “Visitation”
4.602 Restrictions
4.603 Advance Notice
4.604 Grandparents’ and Others’ Third-Party Custody
and Visitation Rights
4.605 Travel Costs
4.606 Relocation
4.607 Withholding a Child from the Other Parent
4.608 Failure to Agree
4.609 Child’s Wishes
4.610 Denigration and Alienation
4.611 Communications and Information Sharing
4.612 Reduced Support Payments
4.613 Emergencies
4.614 Alcohol or Drug Abuse
4.615 Mental Health Concerns
4.616 “Special Day” Clauses
4.617 Access to Firearms
4.618 Changes in Circumstances
4.619 Provisions Allowing Mental Healthcare Professionals
to Testify in Future Proceedings
4.620 Right of First Refusal
4.621 Finances
4.7 USEFUL PUBLICATIONS
APPENDIX 4-1: PHYSICAL CUSTODY—2-2-3 SCHEDULES
APPENDIX 4-2: PHYSICAL CUSTODY—WEEK-ON WEEK-OFF
SCHEDULE
APPENDIX 4-3: PHYSICAL CUSTODY—REASONABLE
PARENTING TIME
APPENDIX 4-4: PHYSICAL CUSTODY—FLEXIBLE
PARENTING TIME
APPENDIX 4-5: PHYSICAL CUSTODY—ALTERNATING
WEEKENDS
APPENDIX 4-6: PHYSICAL CUSTODY—DIVIDING SCHOOL
YEAR AND SUMMER BREAK
APPENDIX 4-7: PHYSICAL CUSTODY—SPLIT CUSTODY
APPENDIX 4-8: HOLIDAY SCHEDULES
APPENDIX 4-9: PHYSICAL CUSTODY—CUSTODIAL
EXCHANGES AT A PUBLIC LOCATION
APPENDIX 4-10: PHYSICAL CUSTODY—“BIRDNEST”
JOINT PHYSICAL CUSTODY
APPENDIX 4-11: SOLE LEGAL CUSTODY
APPENDIX 4-12: JOINT LEGAL CUSTODY
APPENDIX 4-13: CONDITIONAL PARENTING TIME
APPENDIX 4-14: PROHIBITIONS
APPENDIX 4-15: EXPOSURE TO THIRD-PARTY
RELATIONSHIPS
APPENDIX 4-16: NONDENIGRATION
APPENDIX 4-17: COMMUNICATIONS REGARDING DIVORCE,
AGREEMENT, AND FUTURE LITIGATION WITH
THE CHILDREN
APPENDIX 4-18: THIRD-PARTY VISITATION
APPENDIX 4-19: TRAVEL COSTS RELATED TO
PARENTING TIME
APPENDIX 4-20: RELOCATION
APPENDIX 4-21: CHILD’S WISHES
APPENDIX 4-22: TELEPHONE OR VIDEO CONTACT
APPENDIX 4-23: RIGHT OF FIRST REFUSAL
APPENDIX 4-24: INFORMATION SHARING
APPENDIX 4-25: PARENT COORDINATOR PROVISION
APPENDIX 4-26: CHILDREN’S RELIGIOUS UPBRINGING
5.1 POST-NUPTIAL (MARITAL) AGREEMENTS GENERALLY
5.101 In General
5.102 The Comprehensive Agreement
5.103 Relation to Contracts in General
5.2 INTRODUCTORY CLAUSES
5.201 Preamble and Recitals
5.202 “Personal Lives” or “Freedom to Live” Provision
5.3 COUNSEL, ENFORCEMENT, AND WAIVERS
5.301 Representation by Counsel
5.302 Validity of Agreement
5.303 “Binding on Heirs and Assigns” Provision
5.304 Attorney Fees
5.305 Releases and Waivers
5.4 INCORPORATION, MERGER, AND OTHER
MISCELLANEOUS PROVISIONS
5.401 Incorporation and Merger
5.402 “Additional Instruments” Provision
5.403 Modification
5.404 Reconciliation
5.405 Inducement to Agreement
5.406 Interest
5.407 Bankruptcy
5.408 Other Provisions
APPENDIX 5-1: EXAMPLES OF STANDARD PROVISIONS
USED IN SEPARATION AGREEMENTS
APPENDIX 5-2: CONSENT ORDER
APPENDIX 5-3: SAMPLE SEPARATION AGREEMENT I
APPENDIX 5-4: SAMPLE SEPARATION AGREEMENT II
APPENDIX 5-5: PROVISION FOR WAIVER OF ESTATE RIGHTS
APPENDIX 5-6: CLAUSE TO TERMINATE A REVOCABLE TRUST
APPENDIX 5-7: SAMPLE ESTATE PLANNING PROVISIONS
APPENDIX 5-8: SAVING CLAUSE FOR BENEFIT WAIVER
PROVISIONS
6.1 INTRODUCTION
6.2 ALIMONY
6.201 Pre-1985 Rules
6.202 Tax Reform Act of 1984
6.203 Tax Reform Act of 1986
6.204 Pre-December 31, 2018 Alimony Rules
6.205 Post-December 31, 2018 Alimony Rules
6.3 CHILD SUPPORT
6.301 Pre-1985 Rules
6.302 Current Law
6.303 Mixed Payments (Part Alimony, Part Child Support)
6.4 TRANSFERS OF PROPERTY BETWEEN SPOUSES
AND FORMER SPOUSES
6.401 Pre-1985 Rules
6.402 The Tax Reform Acts of 1984 and 1986
6.403 Current Rules
6.404 Transfer of Retirement Benefits
6.405 Promissory Notes and Related Issues
6.406 Miscellaneous Issues
6.5 DEPENDENCY EXEMPTION FOR CHILDREN
6.501 Tax Reform Act of 1984 (Applicable for Tax Years
Beginning Before January 1, 2018 and After
December 31, 2025)
6.502 Dependency Exemption Phaseout Rules
6.503 Tax Years Beginning After December 31, 2017
6.6 COLLATERAL INCOME TAX CONSIDERATIONS
RELATING TO CHILDREN
6.601 Medical Expense Deduction
6.602 Dependent Care Credit
6.603 Child Tax Credit
6.604 Earned Income Tax Credit
6.605 Health Insurance Cost Credit
6.606 Filing Status
6.607 Deductibility of Legal Fees
6.7 ENTITLEMENT TO TAX REFUNDS
6.701 In General
6.702 Applicable Law
6.8 INNOCENT SPOUSE, SEPARATE LIABILITY,
AND EQUITABLE TAX RELIEF
6.801 In General
6.802 Innocent Spouse Rules—I.R.C. § 6015(b)
6.803 Separate Tax Liability for Divorced and Separated
Taxpayers—I.R.C. § 6015(c)
6.804 Equitable Relief—I.R.C. § 6015(f)
6.805 Making the Election
TABLE OF AUTHORITIES
INDEX
EDITORS:
AUTHORS:
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