Domestic Relations Flashcards
(32 cards)
Divorce a vinculo matrimonii
May be granted on the application of either party if and when the spouses have lived depart and apart without any cohabitation and without interruption for one year,
How to determine equitable distribution of property of martial property?
(1) determine the ownership and value of all property (2) determine the rights and interest of each party in the martial property and whether an award of martial property in favor of either party is warranted (3) after determining that an award of property is warranted, consider the amount of the award based upon all the statutory factors set out in the governing statue.
What is the time of valuation used for property owned by parties?
The date of the evidentiary hearing
What is separate property?
(1) all real property, real, and personal, acquired by either party before marriage (2) all property acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the other party (3) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property provided that such property acquired during marriage is matinee as separate property (4) property acquired after the separation of the parties.
What is martial property?
(1) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety, or otherwise and (2) all other property be each party during the marriage that is not separate property as defined by Virginia law
What is the “martial effort” rule?
Increase in value of property during marriage is also separate property EXCEPT marital effort which is the increase in value of separate property due to the active effort of either or both spouses during the marriage may be deemed martial property.
What factors may a court consider for spousal support?
duration of marriage, the monetary and non monetary contributions of each party to the marriage, the parties’ earning capacities, the age and physical and mental condition of the parties, the provisions made regarding martial property, and other relevant factors.
Child support
Virginia law states that every parent has a duty to support their minor children under the age of 18. Child support is based on the combined gross income of both parents and the number of children before the court.
What is the UCCJEA?
Uniform Child Custody Jurisdiction and Enforcement Act. It applies resolve the issue of jurisdiction because the parties have filed custody actions in different states. It determines initial jurisdiction, substantially restricts judicial power to modify a child custody decree rendered in another state, and requires states to recognize and enforce orders issued in compliance with the Act’s jurisdictional rules.
What is the child’s “home state”?
It is the state in which the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding. (1) Childs home state at beginning of proceeding (2) Childs home state within 6 months before commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live there
In deterring custody and visitation, what will a court look at?
Parental presumption - because parental rights are constitutional rights, there is a presumption that it is in the best interest of the child to award custody to the parents.
Best interest analysis - best interest of the child - will look at age and physical and mental condition of the child; the needs the child, including the child’s relationships with the siblings, peers and extended family members; and the role that each party has played and will play in the upbringing and care of the child.
What jurisdiction does Juvenile Court have?
To dermine custody, visitation, or support of a child when these are the subject of controversy or require determination.
What happens when a divorce case is filed in Circuit Court but also involves custody issues?
The Juvenile Court is divested of any right to make any further orders regarding these issues and must refer the matter to the Circuit Court, unless the parties agree otherwise. The Juvenile Court still retains jurisdiction to enforce its previous orders so long as the Circuit Court has issued no order related to the pending divorce action.
No fault divorce?
(1) Living separate and apart for one year without any cohabitation and without any interruption. (2) Also one party must show intention to live apart permanently
What is divorce because of desertion?
If either party has willfully deserted or abandoned the other, a divorce may be decreed to the other party after a period of one year from the date of the act.
Recrimination in divorce?
Countercharge that the complainant was guilty of an offense constituting a fault based ground for divorce of the same divorce.
No fault divorce
Spouses have lived separate and apart without any cohabitation and without interruption for one year. If the parties entered into a separation agreement and there are no minor children, a divorce may be granted on application if the spouses have lived separate and apart without cohabitation for an uninterrupted period of only six months.
What type of spousal support can there be?
Periodic, lump sum, or both.
Can a child support decree be changed?
Yes, child support orders are subject to modification based on a change in circumstances EVEN IF they are affirmed, ratified, and incorporporated in a divorce decree. THIS IS DIFFERENT THAN SPOUSAL SUPPORT DECREE CHANGES. Because can’t waive the child’s right to care. SO A COURT CAN (1) revise and alter a decree concerning the care, custody, and maintenance of the children; or (2) make a new decree as may be required by the circum-stances of the parents and for the benefit of the children.
What is the parental generosity rule?
Child support awards are not based solely on need, but also on the ability to pay.
Can child custody and visitation right change?
Yes, according to the best interests of the child. A court will look at age and physical and mental condition of the child; the age and physical and mental condition of each parent; the relationship existing between each parent and each child; and the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.
What s constructive desertion?
If a spouse’s cruelty forces the other spouse to leave the martial home, it is equivalent to desertion on the part of the offending spouse
What is cruelty for a divorce case?
Anything that tends to cause bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb, or health.
Adultery
No waiting period is required for this action. Evidence must be clear and convincing, but circumstantial evidence is okay.
