Senate Bill No. 359
(By Senators Wooton, Anderson, Buckalew, Deem, Dittmar,
Miller, Schoonover, Scott, Ross, White and Yoder)
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[Originating in the Committee on the Judiciary;
reported February 9, 1996.]
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A BILL to amend and reenact sections fifteen, thirty-two and
thirty-three, article two, chapter forty-eight of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; to amend and reenact sections one and twenty,
article four, chapter forty-eight-a of said code; and to
amend and reenact section twenty-nine, article five, chapter
sixty-one of said code, all relating to domestic relations;
child and spousal support; establishing a threshold change
for modification of alimony awards; requiring courts to
provide for the distribution of property in divorce orders;
failure to meet obligation to support a minor; providing for
an exception to the requirement that financial affidavits be
filed in divorce actions; requiring the advice and consent of
the Senate for family law master appointment; providing for
de novo review of law master decision by circuit judge at the
discretion of the judge; lowering the amount of arrearage that constitutes a felony for failure to pay child support;
and providing for criminal penalties for failure to pay child
support.
Be it enacted by the Legislature of West Virginia:
That sections fifteen, thirty-two and thirty-three, article
two, chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that sections one and twenty, article four, chapter
forty-eight-a of said code be amended and reenacted; and that
section twenty-nine, article five, chapter sixty-one of said code
be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.ARTICLE 2.
DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the
maintenance of the other party. Payments of alimony are to be
ordinarily made from a party's income, but when the income is not
sufficient to adequately provide for those payments, the court
may, upon specific findings set forth in the order, order the
party required to make those payments to make them from the corpus
of his or her separate estate. An award of alimony shall not be disproportionate to a party's ability to pay as disclosed by the
evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or
granting of decree of separate maintenance, the court may further
order all or any part of the following relief:
(1) The court may provide for the custody of minor children of
the parties, subject to such rights of visitation, both in and out
of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion of
any party, notice of hearing and hearing, the court shall issue an
order which provides a specific schedule of visitation by the
noncustodial parent;
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor children
of the parties in accordance with support guidelines promulgated
pursuant to section eight, article two, chapter forty-eight-a of
this code. Payments of child support are to be ordinarily made from a party's income, but in cases when the income is not
sufficient to adequately provide for those payments, the court
may, upon specific findings set forth in the order, order the
party required to make those payments to make them from the corpus
of his or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health
care and hospitalization of the other party: Provided, That if
the other party is no longer eligible to be covered by such
insurance because of the granting of an annulment or divorce, the
court may require a party to substitute such insurance with a new
policy to cover the other party or may consider the prospective
cost of such insurance in awarding alimony to be paid in periodic
installments. Payments made to an insurer pursuant to this
subdivision, either directly or by a deduction from wages, shall
be deemed to be alimony or installment payments for the
distribution of marital property, in such proportion as the court
shall direct: Provided, however, That if the court does not set
forth in the order that a portion of such payments is to be deemed installment payments for the distribution of marital property,
then all such payments made pursuant to this subdivision shall be
deemed to be alimony: Provided further, That the designation of
insurance coverage as alimony under the provisions of this
subdivision shall not, in and of itself, give rise to a subsequent
modification of the order to provide for alimony other than
insurance for covering the costs of health care and
hospitalization;
(5) The court may grant the exclusive use and occupancy of the
marital home to one of the parties, together with all or a portion
of the household goods, furniture and furnishings reasonably
necessary for such use and occupancy. Such use and occupancy
shall be for a definite period, ending at a specific time set
forth in the order, subject to modification upon the petition of
either party. Except in extraordinary cases supported by specific
findings set forth in the order granting relief, a grant of the
exclusive use and occupancy of the marital home shall be limited
to those situations when such use and occupancy is reasonably
necessary to accommodate the rearing of minor children of the
parties. The court may require payments to third parties in the
form of home loan installments, land contract payments, rent,
property taxes and insurance coverage if the amount of such
coverage is reduced to a fixed monetary amount set forth in the court's order. When such third party payments are ordered, the
court shall specify whether such payments or portions of payments
are alimony, child support, a partial distribution of marital
property or an allocation of marital debt: Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed child support or installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony. When
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated in
an order and the parties have waived any right to receive alimony,
the court may designate the payments upon motion by any party.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect
the rights and liabilities of either party or a third party under
the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable rates, and any such payments made pursuant to this subdivision for
the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as
the court may direct. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a
third party or affect the rights and liabilities of either party
or a third party under the terms of such contract;
(7) When the pleadings include a specific request for specific
property or raise issues concerning the equitable division of
marital property as defined in section one of this article, the
court shall order such relief as may be required to effect a just
and equitable distribution of the property and to protect the
equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other
provisions of this section, then upon the motion of either party,
the court may compel the other party to deliver to the moving
party any of his or her separate estate which may be in the
possession or control of the respondent party and may make such
further order as is necessary to prevent either party from
interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or
visitation rights of the other. Such order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by
telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion
of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon
constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections
(a) and (b) of this section which has been demanded or prayed for in the pleadings.
(e) At any time After the entry of an order pursuant to the
provisions of this section, upon the motion of the court may, upon
the motion of either party, revise or alter the order concerning
the maintenance of the parties, or either of them, and make enter
a new order concerning the same, issuing it forthwith, as the
circumstances or needs of the parties may render necessary to meet
the ends of justice. require: Provided, That an order may be
revised only when the modified order provides for payments in an
amount that is less than eighty percent or more than one hundred
twenty percent of the payments of the existing order.
The court may also from time to time afterward, upon motion of
either of the parties and upon proper service, revise or alter
such order to grant relief pursuant to subdivision (9), subsection
(b) of this section, and make a new order concerning the same,
issuing it forthwith, as the circumstances of the parties and the
benefit of children may require. The court may also from time to
time afterward, upon the motion of either of the parties or other
proper person having actual or legal custody of the minor child or
children of the parties, revise or alter the order concerning the
custody and support of the children, and make a new order
concerning the same, issuing it forthwith, as the circumstances of
the parents or other proper person or persons and the benefit of the children may require: Provided, That all orders modifying
child support shall be in conformance with the requirements of
support guidelines promulgated pursuant to section eight
seventeen, article two, chapter forty-eight-a of this code:
Provided, however, That an order providing for child support
payments may be revised or altered for the reason, inter alia,
that the existing order provides for child support payments in an
amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to be
paid under the child support guidelines promulgated pursuant to
the provisions of said section.
In granting relief under this subsection, the court may, when
other means are not conveniently available, alter any prior order
of the court with respect to the distribution of marital property,
if such property is still held by the parties, and if necessary to
give effect to a modification of alimony, child support or child
custody or necessary to avoid an inequitable or unjust result
which would be caused by the manner in which the modification will
affect the prior distribution of marital property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is
to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the death of the payor party or
cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment of
alimony is to continue beyond the remarriage of the payee party or
is to cease, or where when the parties have not entered into a
separation agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the remarriage of the payee
party or cease.
(h) In addition to the disclosure requirements set forth in
section thirty-three of this article, the court may order accounts
to be taken as to all or any part of marital property or the separate estates of the parties and may direct that the accounts
be taken as of the date of the marriage, the date upon which the
parties separated or any other time in assisting the court in the
determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under the
provisions of this section, the court shall consider and compare
the fault or misconduct of either or both of the parties and the
effect of such fault or misconduct as a contributing factor to the
deterioration of the marital relationship. However, alimony shall
not be awarded when both parties prove grounds for divorce and are
denied a divorce, nor shall an award of alimony under the
provisions of this section be ordered which directs the payment of
alimony to a party determined to be at fault, when, as a grounds
granting the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime which
is a felony, subsequent to the marriage if such conviction has
become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof to
be paid out of "disposable retired or retainer pay" as that term
is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount, expressed
in dollars or as a percentage of disposable retired or retainer
pay, from the disposable retired or retainer pay of the payor
party to the payee party.
(k) Any order which provides for the custody or support of a
minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific
written finding pursuant to section eight, article two, chapter
forty-eight-a of this code.
(l) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall
also provide for the following:
(A) The custodial parent shall be required to authorize school
authorities in the school in which the child is enrolled to
release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be properly
released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable,
to arrange appointments for parent-teacher conferences at a time
when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly inform
the noncustodial parent of any illness of the child which requires medical attention; or, if the child is in the actual physical
custody of the noncustodial parent during a period of visitation,
the noncustodial parent shall be required to promptly inform the
custodial parent of any illness of the child which requires
medical attention;
(F) The custodial parent shall be required to consult with the
noncustodial parent prior to any elective surgery being performed
on the child; and in the event emergency medical procedures are
undertaken for the child which require the parental consent of
either parent, if time permits, the other parent shall be
consulted, or if time does not permit such consultation, the other
parent shall be promptly informed of such emergency medical
procedures: Provided, That the same duty to inform the custodial
parent applies to the noncustodial parent in the event that the
emergency medical procedures are required while the child is in
the physical custody of the noncustodial parent during a period of
visitation: Provided, however, That nothing contained herein
shall be deemed to alter or amend the law of this state as it
otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or
performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records
and direct it to the appropriate school authorities or medical
providers.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every
judgment of annulment, divorce or separation, the court shall
divide the marital property of the parties equally between the
parties., and, in every case in which a divorce is granted, the
court shall include within the final order a provision for the
disposition of marital property.
(b) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, then the court shall divide the marital property in
accordance with the terms of the agreement, unless the court
finds:
(1) That the agreement was obtained by fraud, duress or other
unconscionable conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not
expressed themselves in terms which, if incorporated into a
judicial order, would be enforceable by a court in future proceedings; or
(3) That the agreement, viewed in the context of the actual
contributions of the respective parties to the net value of the
marital property of the parties, is so inequitable as to defeat
the purposes of this section, and such agreement was inequitable
at the time the same was executed.
(c) In the absence of a valid agreement, the court shall
presume that all marital property is to be divided equally between
the parties, but may alter this distribution, without regard to
any attribution of fault to either party which may be alleged or
proved in the course of the action, after a consideration of the
following:
(1) The extent to which each party has contributed to the
acquisition, preservation and maintenance, or increase in value of
marital property by monetary contributions, including, but not
limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the
acquisition, preservation and maintenance or increase in value of
marital property by nonmonetary contributions, including, but not
limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than
adequate compensation, in a family business or other business
entity in which one or both of the parties has an interest;
(D) Labor performed in the actual maintenance or improvement
of tangible marital property; and
(E) Labor performed in the management or investment of assets
which are marital property.
(3) The extent to which each party expended his or her efforts
during the marriage in a manner which limited or decreased such
party's income-earning ability or increased the income-earning
ability of the other party, including, but not limited to:
(A) Direct or indirect contributions by either party to the
education or training of the other party which has increased the
income-earning ability of such other party; and
(B) Foregoing by either party of employment or other income-
earning activity through an understanding of the parties or at the
insistence of the other party.
(4) The extent to which each party, during the marriage, may
have conducted himself or herself so as to dissipate or depreciate
the value of the marital property of the parties: Provided, That
except for a consideration of the economic consequences of conduct
as provided for in this subdivision, fault or marital misconduct shall not be considered by the court in determining the proper
distribution of marital property.
(d) After considering the factors set forth in subsection (c)
of this section, the court shall:
(1) Determine the net value of all marital property of the
parties as of the date of the commencement of the action or as of
such later date determined by the court to be more appropriate for
attaining an equitable result;
(2) Designate the property which constitutes marital property,
and define the interest therein to which each party is entitled
and the value of their respective interest therein. In the case
of an action wherein there is no agreement between the parties and
the relief demanded requires the court to consider such factors as
are described in subdivisions (1), (2), (3) and (4), subsection
(c) of this section, if a consideration of factors only under said
subdivisions (1) and (2) would result in an unequal division of
marital property, and if an examination of the factors described
in said subdivisions (3) and (4) produce a finding that a party:
(A) Expended his or her efforts during the marriage in a manner
which limited or decreased such party's income-earning ability or
increased the income-earning ability of the other party; or (B)
conducted himself or herself so as to dissipate or depreciate the
value of the marital property of the parties, then the court may, in the absence of a fair and just alimony award under the
provisions of section fifteen of this article which adequately
takes into account the facts which underlie the factors described
in subdivisions (3) and (4), subsection (c) of this section,
equitably adjust the definition of the parties' interest in
marital property, increasing the interest in marital property of
a party adversely affected by the factors considered under said
subdivisions who would otherwise be awarded less than one half of
the marital property, to an interest not to exceed one half of the
marital property;
(3) Designate the property which constitutes separate property
of the respective parties or the separate property of their
children;
(4) Determine the extent to which marital property is
susceptible to division in accordance with the findings of the
court as to the respective interests of the parties therein;
(5) In the case of any property which is not susceptible to
division, ascertain the projected results of a sale of such
property;
(6) Ascertain the projected effect of a division or transfer
of ownership of income-producing property, in terms of the
possible pecuniary loss to the parties or other persons which may
result from an impairment of the property's capacity to generate earnings; and
(7) Transfer title to such component parts of the marital
property as may be necessary to achieve an equitable distribution
of the marital property. To make such equitable distribution, the
court may:
(A) Direct either party to transfer their interest in specific
property to the other party;
(B) Permit either party to purchase from the other party their
interest in specific property;
(C) Direct either party to pay a sum of money to the other
party in lieu of transferring specific property or an interest
therein, if necessary to adjust the equities and rights of the
parties, which sum may be paid in installments or otherwise, as
the court may direct;
(D) Direct a party to transfer his or her property to the
other party in substitution for property of the other party of
equal value which the transferor is permitted to retain and assume
ownership of; or
(E) Order a sale of specific property and an appropriate
division of the net proceeds of such sale: Provided, That such
sale may be by private sale, or through an agent or by judicial
sale, which ever would facilitate a sale within a reasonable time
at a fair price.
(e) In order to achieve the equitable distribution of marital
property, the court shall, unless the parties otherwise agree,
order, when necessary, the transfer of legal title to any property
of the parties, giving preference to effecting equitable
distribution through periodic or lump sum payments: Provided,
That the court may order the transfer of legal title to motor
vehicles, household goods and the former marital domicile without
regard to such preference where the court determines it to be
necessary or convenient. In any case involving the equitable
distribution of: (1) Property acquired by bequest, devise,
descent, distribution or gift; or (2) ownership interests in a
business entity, the court shall, unless the parties otherwise
agree, give preference to the retention of the ownership interests
in such property. In the case of such business interests, the
court shall give preference to the party having the closer
involvement, larger ownership interest or greater dependency upon
the business entity for income or other resources required to meet
responsibilities imposed under this article, and shall also
consider the effects of transfer or retention in terms of which
alternative will best serve to preserve the value of the business
entity or protect the business entity from undue hardship or from
interference caused by one of the parties or by the divorce,
annulment or decree of separate maintenance: Provided, That the court may, unless the parties otherwise agree, sever the business
relationship of the parties and order the transfer of legal title
to ownership interests in the business entity from one party to
the other, without regard to the limitations on the transfer of
title to such property otherwise provided in this subsection, if
such transfer is required to achieve the other purposes of this
article: Provided, however, That in all such cases the court
shall order or the agreement of the parties shall provide for
equitable payment or transfer of legal title to other property, of
fair value in money or moneys' worth, in lieu of any ownership
interests in a business entity which are ordered to be transferred
under this subsection: Provided further, That the court may order
the transfer of such business interests to a third party (such as
the business entity itself or another principal in the business
entity) where the interests of the parties under this article can
be protected and at least one party consents thereto.
(f) In any order which divides or transfers the title to any
property, determines the ownership or value of any property,
designates the specific property to which any party is entitled or
grants any monetary award, the court shall set out in detail its
findings of fact and conclusions of law, and the reasons for
dividing the property in the manner adopted.
(g) If an order entered in accordance with the provisions of this article requires the transfer of title to property and a
party fails or refuses to execute a deed or other instrument
necessary to convey title to such property, the deed or other
instrument shall be executed by a special commissioner appointed
by the court for the purpose of effecting such transfer of title
pursuant to section seven, article twelve, chapter fifty-five of
this code.
(h) As to any third party, the doctrine of equitable
distribution of marital property and the provisions of this
article shall be construed as creating no interest or title in
property until and unless an order is entered under this article
judicially defining such interest or approving a separation
agreement which defines such interest. Neither this article nor
the doctrine of equitable distribution of marital property shall
be construed to create community property nor any other interest
or estate in property except those previously recognized in this
state. A husband or wife may alienate property at any time prior
to the entry of an order under the provisions of this article or
prior to the recordation of a notice of lis pendens in accordance
with the provisions of section thirty-five of this article, and at
anytime and in any manner not otherwise prohibited by an order
under this article, in like manner and with like effect as if this
article and the doctrine of equitable distribution had not been adopted: Provided, That as to any transfer prior to the entry of
an order under the provisions of this article, a transfer other
than to a bona fide purchaser for value shall be voidable if the
court finds such transfer to have been effected to avoid the
application of the provisions of this article or to otherwise be
a fraudulent conveyance. Upon the entry of any order under this
article or the admission to record of any notice with respect to
an action under this article, restraining the alienation of
property of a party, a bona fide purchaser for value shall take
such title or interest as he or she might have taken prior to the
effective date of this section and no purchaser for value need see
to the application of the proceeds of such purchase except to the
extent he or she would have been required so to do prior to the
effective date of this section: Provided, however, That as to
third parties nothing in this section shall be construed to limit
or otherwise defeat the interests or rights to property which any
husband or wife would have had in property prior to the enactment
of this section or prior to the adoption of the doctrine of
equitable distribution by the supreme court of appeals on the
twenty-fifth day of May, one thousand nine hundred eighty-three:
Provided further, That no order entered under this article shall
be construed to defeat the title of a third party transferee
thereof except to the extent that the power to effect such a transfer of title or interest in such property is secured by a
valid and duly perfected lien and, as to any personal property,
secured by a duly perfected security interest.
(i) Notwithstanding the provisions of chapter eleven of this
code, no transfer of interest in or title to property under this
section shall be taxable as a transfer of property without
consideration nor, except as to alimony, create liability for
sales, use, inheritance and transfer or income taxes due the state
or any political subdivision nor require the payment of the excise
tax imposed under article twenty-two, of said chapter eleven of
this code.
(j) Whenever under the terms of this article a court enters an
order requiring a division of property, if the court anticipates
the division of property will be effected affected by requiring
sums to be paid out of "disposable retired or retainer pay" as
that term is defined in 10 U.S.C. §1408, relating to members or
former members of the uniformed services of the United States, the
court shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
§48-2-33. Disclosure of assets required.
(a) Except as provided in subsection (g) of this section, in
all divorce actions and in any other action involving child support, all parties shall fully disclose their assets and
liabilities within forty days after the service of summons or at
such earlier time as ordered by the court. The information
contained on these forms shall be updated on the record to the
date of the hearing.
(b) The disclosure required by this section may be made by
each party individually or by the parties jointly. Assets
required to be disclosed shall include, but shall not be limited
to, real property, savings accounts, stocks and bonds, mortgages
and notes, life insurance, health insurance coverage, interest in
a partnership or corporation, tangible personal property, income
from employment, future interests whether vested or nonvested and
any other financial interest or source.
(c) The supreme court of appeals shall make available to the
circuit courts a standard form for the disclosure of assets and
liabilities required by this section. The clerk of the circuit
court shall make these forms available to all parties in any
divorce action or action involving child support. Any disclosure
required by this section shall be on a form that substantially
complies with the form promulgated by the supreme court of
appeals. The form used shall contain a statement in conspicuous
print that complete disclosure of assets and liabilities is
required by law and deliberate failure to provide complete disclosure as ordered by the court constitutes false swearing.
(d) Nothing contained in this section shall be construed to
prohibit the court from ordering discovery pursuant to rule
eighty-one of the rules of civil procedure. Additionally, the
court may on its own initiative and shall at the request of either
party require the parties to furnish copies of all state and
federal income tax returns filed by them for the past two years
and may require copies of such returns for prior years.
(e) Information disclosed under this section shall be
confidential and may not be made available to any person for any
purpose other than the adjudication, appeal, modification or
enforcement of judgment of an action affecting the family of the
disclosing parties. The court shall include in any order
compelling disclosure of assets such provisions as the court
considers necessary to preserve the confidentiality of the
information ordered disclosed.
(f) Any failure to timely or accurately disclose financial
information required by this section may be considered as follows:
(1) Upon the failure by either party timely to file a
complete disclosure statement as required by this section or as
ordered by the court, the court may accept the statement of the
other party as accurate;
(2) If any party deliberately or negligently fails to disclose information which is required by this section and in
consequence thereof any asset or assets with a fair market value
of five hundred dollars or more is omitted from the final
distribution of property, the party aggrieved by such
nondisclosure may at any time petition a court of competent
jurisdiction to declare the creation of a constructive trust as to
all undisclosed assets, for the benefit of the parties and their
minor or dependent children, if any, with the party in whose name
the assets are held to be declared the constructive trustee, such
trust to include such terms and conditions as the court may
determine. The court shall impose the trust upon a finding of a
failure to disclose such assets as required under this section;
(3) Any assets with a fair market value of five hundred
dollars or more which would be considered part of the estate of
either or both of the parties if owned by either or both of them
at the time of the action, but which was transferred for
inadequate consideration, wasted, given away or otherwise
unaccounted for by one of the parties, within five years prior to
the filing of the petition or length of the marriage, whichever is
shorter, shall be presumed to be part of the estate and shall be
subject to the disclosure requirement contained in this section.
With respect to such transfers the spouse shall have the same
right and remedies as a creditor whose debt was contracted at the time the transfer was made under article one-a, chapter forty of
this code. Transfers which resulted in an exchange of assets of
substantially equivalent value need not be specifically disclosed
when such assets are otherwise identified in the statement of net
worth; and
(4) A person who knowingly provides incorrect information or
who deliberately fails to disclose information pursuant to the
provisions of this section is guilty of false swearing.
(g) The parties in a divorce action shall not be required to
fully disclose their assets and liabilities when:
(1) All parties file a notarized statement waiving their
right to receive the information that would be contained in the
disclosure of assets and liabilities;
(2) The court conducts an inquiry, on the record, as to
whether the waiver was obtained by fraud or duress;
(3) The court finds that the waiver is properly executed and
filed and further that it was not obtained by fraud or duress;
(4) The court informs the parties, on the record, that they
have a statutory right to receive the disclosure of assets and
liabilities as is required by the provisions of this section;
(5) The parties have executed and filed a separation
agreement with the clerk of the circuit court which meets the
requirements set forth in section sixteen of this article; and
(6) The court finds that sufficient information exists
without the written disclosure of assets and liabilities to
support a finding that the separation agreement meets the
requirements set forth in section sixteen of this article.
(h) When parties in a divorce action waive their right to
receive a written disclosure of assets and liabilities they may
nonetheless seek financial information pursuant to any discovery
permitted by the court.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 4. PROCEEDINGS BEFORE A MASTER.
§48A-4-1. Appointment of family law masters; term of office;
vacancy; removal.
(a) The family law masters holding office on the effective
date of this section by virtue of appointments made under the
prior enactments of this article shall continue their service for
a term of office ending on the thirtieth day of June, one thousand
nine hundred ninety-four. Before the first day of July, one
thousand nine hundred ninety-four, the governor, with the advice
and consent of the Senate, shall appoint family law masters in
such numbers and to serve such areas of the state as provided for
under the provisions of this article, with terms commencing on the
first day of July, one thousand nine hundred ninety-four, and on
a like date in every fourth year thereafter, and ending on the
thirtieth day of June, one thousand nine hundred ninety-eight, and on a like date in every fourth year thereafter. Upon the
expiration of his or her term, a family law master may continue to
perform the duties of the office until the governor, with the
advice and consent of the Senate, makes the appointment, or for
sixty days after the date of the expiration of the master's term,
whichever is earlier. If a vacancy occurs in the office of family
law master, the governor shall, with the advice and consent of the
Senate, within thirty days after such vacancy occurs, fill the
vacancy by appointment for the unexpired term: Provided, That if
the remaining portion of the unexpired term to be filled is less
than one year, the governor may, in his or her discretion,
simultaneously appoint an individual to the unexpired term and to
the next succeeding full four-year term.
(b) An individual may be reappointed to succeeding terms as
a family law master to serve in the same or a different region of
the state.
(c) Removal of a master during the term for which he or she
is appointed shall be as follows:
(1) Upon a recommendation by the judicial hearing board
created pursuant to the rules of procedure for the handling of
complaints against justices, judges, magistrates and family law
masters, if the supreme court of appeals shall find that a family
law master has violated the judicial code of ethics or that the master, because of advancing years and attendant physical or
mental incapacity, should not continue to serve, the supreme court
of appeals may, in lieu of or in addition to any disposition
authorized by such rules, remove the family law master from
office; and
(2) The supreme court of appeals may remove a master when
conduct of the family law master evidences incompetence,
unsatisfactory performance, misconduct, neglect of duty or
physical or mental disability.
§48A-4-20. Circuit court review of master's recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the master when:
(1) No petition has been filed within the time allowed, or
the parties have expressly waived the right to file a petition;
and
(2) A petition and an answer in opposition have been filed,
or the time for filing an answer in opposition has expired or the
parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions and determine
the appropriateness of the terms of the recommended order of the
master.
(c) (b) The circuit court shall examine the recommended order
of the master, along with the findings and conclusions of the
master., and may enter the recommended order, may recommit the
case, with instructions, for further hearing before the master or
may, in its discretion, enter an order upon different terms, as
the ends of justice may require. The circuit court shall not
follow the recommendation, findings and conclusions of a master
found to be: The circuit court may conduct such further hearings
and consider any evidence that the court finds necessary for a
full and complete review of the matter. The court may permit the
parties to file additional pleadings and may permit any written or
oral arguments.
(1) Arbitrary, capricious, an abuse of discretion or
otherwise not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or
immunity;
(3) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
(d) In making its determinations under this section, the
circuit court shall review the whole record or those parts of it
cited by a party. If the circuit court finds that a master's
recommended order is deficient as to matters which might be
affected by evidence not considered or inadequately developed in
the master's recommended order, the court may recommit the
recommended order to the master, with instructions indicating the
court's opinion, or the circuit court may proceed to take such
evidence without recommitting the matter.
(e) (d) The order of the circuit court entered pursuant to
the provisions of subsection (d) (c) of this section shall be
entered not later than ten days after the time for filing
pleadings or briefs has expired or after the filing of a notice or
notices waiving the right to file such pleading or brief.
(f) (e) If a case is recommitted by the circuit court, the
master shall retry the matter within twenty days.
(g) (f) At the time a case is recommitted, the circuit court
shall enter appropriate temporary orders awarding custody,
visitation, child support, spousal support or such other temporary
relief as the circumstances of the parties may require.
(g) This section may not be construed to prohibit a circuit
court from conducting a de novo review of any question of fact or
law following the submission of a recommended order by the family
law master.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-29. Failure to meet an obligation to provide support to a
minor; penalties.
(1) A person who: (a) Persistently fails to provide support
which he or she can reasonably provide and which he or she knows
he or she has a duty to provide to a minor; or (b) is subject to
court order to pay any amount for the support of a minor child and
is delinquent in meeting the full obligation established by such
the order and has been so delinquent for a period of at least six
months' duration, is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred dollars nor more
than one thousand dollars, or imprisoned in the county jail for
not more than one year, or both fined and imprisoned.
(2) A person who persistently fails to provide support which
he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor by virtue of a court or
administrative order and the failure results in: (a) An arrearage
of not less than ten eight thousand dollars; or (b) twelve
consecutive months without payment of support, is guilty of a
felony, and, upon conviction thereof, shall be fined not less than
one hundred dollars nor more than one thousand dollars, or
imprisoned for not less than one year nor more than three years,
or both fined and imprisoned.