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VI Bar Exam > Domestic Relations > Flashcards

Domestic Relations Flashcards

1
Q

Uniform Enforcement Foreign Judgment Procedure

“UEFJA”

A
  1. File authenticated copy of foreign judgment with clerk of Super. Ct.
  2. Pay filing fee
  3. File affidavit with last address of judgment creditor and judgment debtor.
  4. Clerk will mail notice to both parties
  5. Execution on the Judgment is stayed for 10 days automatically.
  6. After 10 Days judgment is subject to same procedures and defenses
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2
Q

Void Marriage

A
  1. Parties related
  2. One party already legally married
  3. marriage adjudged void by judicial decree
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3
Q

What does the adoption of the Uniform Enforcment of Foreign Judgment Act do?

A

No longer necessary to localize the judgment by obtaining a VI Judgment to enforce it.

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4
Q

Uniform Foreign Money Judgment Recognition Act

A

Judgments for sums of money obtained in a foreign country will be given full faith and credit in the VI if:

  1. Judgment court had proper jurisdiction over the parties and the subject matter.
  2. Parties had notice and an opportunity to be heard.

Does not apply to matrimonial or family support matters.

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5
Q

Support of Relations - Overdue Payments

A

If a court orders any such support -over due payments should take priority over any other payment.

Civil liability for overdue child support can include: license suspension, liens on personal and real property, with holding of income tax, and wage garnishment.

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6
Q

Tenancy by the Entirety

A

A conveyance of real property to a married couple is automatically conveyed as tenant by the entirety unless the conveying document states otherwise. Neither spouse can segregate or alienate their interest in the property nor can a debtor of one spouse attach a lien on the property.

-Divorce changes this to Tenants in common.

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7
Q

Change in Grandparent Visitation Rights once Granted

A

Once granted a grandparent must be given proper notice of any petition or order providing for a change in custody or visitation rights.

GP also has standing to intervene on any hearing affecting visitation rights of the child.

If the child is living with GP even if official custody or visitation has not been granted by the Court, GP has standing like a parent to weigh in on the best interest of the child with regards to custody matters.

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8
Q

Abandonment of Homestead

A

When a divorce action commences without a prior finding of abandonment the Court has broad discretion to dispose of the marital homestead in accordance with the equities of the case.

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9
Q

Lottery winnings (won during marriage)

A

Are considered marital property and will be subject to equitable distribution.

If Marital homestead was purchased with proceeds it too will be subject to equitable distribution.

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10
Q

Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.

A

Provides for the registration and enforcement of a valid protection order issued by a sister state.

Valid if :

  1. Identifies the protected individual and the respondent
  2. is currently in effect
  3. was issued by a court that had jurisdiction over the parties
  4. Respondent had notice and an opportunity to be heard.
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11
Q

Is the Court Bound by a separation Agreement signed by the parties?

A

No, but it may be helpful to the court in arriving at an appropriate order/ distribution. The court is not bound by the terms of the agreement.

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12
Q

Does the accused have a Right to Counsel at Permanent Restraining Order Hearing ?

A

Yes, because of the deprivations that may be faced by the alleged attacker and the possibility of imprisonment should they violate the PRO the Supreme CT. has held that the PRO hearing is quasi-criminal in nature. Therefore, pursuant
to Super. Ct. Rule 84 the accused has a right to counsel and has a right to be informed of his/ her right to counsel by the CT.

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13
Q

When is Alimony in Gross Appropriate?

A

A lump sum award of alimony is appropriate when the CT. suspects the party ordered to pay may be trying to dissipate their estate.

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14
Q

Modification of Alimony

A

Either party may at any time petition the court to modify alimony payments for a change in circumstances such as paying party has become more financially capable (better job or inheritance) or less financially stable (disability and inability to work)

Burden of proof rests on the obligor to prove that award should be modified.

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15
Q

Limited Divorce

A

the Ct. may grant a limited divorce i.e. declare the marriage dissolved but wait to decide such issues as distribute the marital property, custody, alimony, and change of name until a later date.

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16
Q

What type of Assets can the CT. Dispose of through a divorce proceeding?

A
  1. The marital homestead

2. Marital property i.e. personal property acquired by the parties throughout the marriage.

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17
Q

Marital Property

A

Property acquired by the parties as a couple throughout the term of the marriage. Subject to equitable distribution.

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18
Q

Requirements to confer Jurisdiction on VI Ct. in Divorce Proceeding

A
  1. Party is domiciled in the VI- intent to make this ones home.
  2. Residency requirement- must have been physically present within the VI during the last 6 weeks prior to filing.

Member of armed services who was a resident of the VI @ the time of entry into the armed services will be deemed to have resided in the VI during time of military service.

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19
Q

What happens if parties affirm the marriage after finding voidable grounds to terminate marriage?

A

The marriage is no longer voidable and annulment will no longer be granted.

Parties can affirm a voidable marriage by continuing to co-habitate as a married couple after voidable grounds are discovered.

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20
Q

Indicia of Domicile

A
  • voter’s registration, employment, utilities, driver’s license, real property, pays taxes.

Domicile will continue in party’s absence if they intend to return and make home.

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21
Q

How is venue decided for Divorce proceeding?

A

Venue is determined by:

  1. Where the marriage last existed or
  2. last place the parties co-habitated with a common intent to remain married.
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22
Q

Interlocutory Order during Divorce Proceeding deals with what?

A

Prior to the final order the CT. may issue an interlocutory order for temporary maintenance and child support, child custody, and restraining the parties from disposing of marital property or personal property of the spouse.

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23
Q

Final Divorce Order can provide for :

A

In the Ct. final order declaring the marriage either void or dissolved the Ct. may provide for the following without regard to fault:

  1. Alimony
  2. Child support (using statutory guidelines)
  3. Custody
  4. Change of name
  5. Appointment of Trustee to receive alimony and child support payments.
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24
Q

Amatory Torts

A

The Amatory Torts of:

  1. criminal conversation with a spouse and
  2. Alienation of affection

are no longer recognized in the VI.

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25
Q

Annulment

A

Either party may seek to annul the marriage if the Ct. finds voidable grounds:

  1. adjudged a lunatic
  2. party is impotent
  3. induced to marry via fraud (must be as to the object of marriage) or force
  4. Under age of consent (14 for girls 16 for boys)
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26
Q

Support Relations

A

there is a statutory obligation to support ones spouse and one’s child.

In the VI persons are also required to support one’s parents and siblings.

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27
Q

Proceedure for Grandparent visitation

A

Grandparents may petition the court for visitation rights if:

  1. parties are separated
  2. the child’s parent has been absent for longer then a month and their whereabouts are unknown
  3. Child is not residing with either parent but has not been legally adopted
  4. Child’s parent (grandparent’s child) has died and the living parent has remarried but the step parent has not legally adopted the child.
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28
Q

Who must consent to an adoption?

A
  1. biological parents- unless they have been adjudged unfit, they are incarcerated for longer then 2 years, they have not been in contact with the child or supported the child financially (deserted) A guardian ad litem may be appointed to substitute consent.
  2. Child if over the age of 14
  3. if petitioner is married -spouse must join in the petition.
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29
Q

Voidable Marriage

A
  1. Adjudged a lunatic or insane
  2. impotent
  3. Forced to marry through duress
  4. Fraud which goes to the objects of matrimony
  5. Below the age of consent (14 girls, 16 boys)
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30
Q

Marital Homestead

A

The home the parties lived in during marriage.

  1. land on which the home sits must belong to 1 of the parties.
  2. The home structure must belong to one of the parties
  3. The parties must have lived in the home during their marriage.
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31
Q

Alimony - Needs/ Means Test

A

Ct. should consider only needs and means i.e. the needs of the party seeking alimony and the means of the obligor.

Party seeking alimony bears the burden of proof.

If parties will be similarly situated financially after the divorce, alimony should be denied.

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32
Q

Necessity for Alimony

A

Ct. can look to these factors

  1. Circumstances surrounding the parties
  2. Party’s necessities
  3. obligors financial ability to pay
  4. Physical condition of the parties
  5. Nature of the parties’ life together
  6. Party seeking alimony ability to earn their own way and become independent.
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33
Q

Temporary Restraining Order

A

Ct. may issue a TRO exparte (without notice to the accused party) if good cause is shown to protect life, health, and well being the seeking party.

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34
Q

Permanent Restraining Order

A

Permanent Restraining Order Hearing must be scheduled within 10 days of the filing of the complaint and accused must have notice.

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35
Q

What action may the CT. take at a PRO hearing?

A

The Ct. may:

  1. award temporary child custody
  2. possession of the home and exclude accused
  3. Restitution
  4. award temporary child support
36
Q

What does quasi criminal proceeding mean?

A

Bernhardt v. Bernhardt
Due to the deprivations suffered by the alleged attacker (possibility of imprisonment should he/she violate the PRO) the PRO hearing is quasi criminal in nature. As such, the accused has a right to counsel and to be informed of such right.

37
Q

Supreme Ct. Rule 210.1

A

If a conflict panel is not established or does not have sufficient attorneys, the Supreme Ct. may appoint any regularly admitted atty to represent indigent defendants on a rotating basis.

Attys who are regularly admitted whether they live on or off island are subject to be appointed to represent an indigent defendant in a criminal case.

75.00 an hour
$5,000 max except in 1st degree homicide in which max is $7,500

38
Q

No Fault Divorce

A

Moving party has burden of proving statutory requisites of Incompatibility of Temperament:
There has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

39
Q

Child Support Guidelines

A

VI Attorney General has proscribed specific rules and regulations that must be followed in computing child support. Various worksheets must be completed and notarized by the parties.

The Family Division then uses these worksheets to make findings regarding the parties’ income, the child’s needs, an the amount of support to be awarded.

40
Q

Extent of Child Support obligation

A

a party is obligated by law to support their children up to the age of majority (18).

The ct. has discretion to order a parent to continue support until age 22 if the child is enrolled in high school, a vocational program, or college.

A parent may be to support a child who is physically or mentally disabled for the entirety of the child’s life.

41
Q

Overdue Child Support

A

a judgment for overdue child support does not expire. A parent awarded child support amy seek to collect arrearages even after the children have reached the age of majority.

42
Q

Modification of Child Support

A

A party may seek to modify their obligation due to a change in circumstances. However, a paying parent may not circumvent their obligation to pay child support by voluntarily reducing or terminating their employment

43
Q

Child Custody

A

The best interests of the is the paramount concern of the Ct. presiding over a custody dispute between the child’s parents.

No specific factors are set out in the VI code. Thus the family division makes a case by case determination.

44
Q

Best Interest Factors in Case Law?

A

Madir v. Daniel

  1. Respective home environments
  2. ability of each parent to nuture the child
  3. whether either parent was guilty of abuse
  4. the relationship between parent and child
  5. ability of child to relate to siblings
  6. willingness of each parent to provide a stable home environment for the child.
45
Q

what if the court suspects a presence of domestic violence during a custody dispute?

A

This raises the rebuttable presumption that the best interest of the child to reside with the parent who is not the perpetrator of violence.

This also applies when one parent has been convicted of causing the death of the other parent or the child was conceived via rape.

46
Q

Will the Ct. honor voluntary custody settlements

A

Yes and they are encouraged as long as they advance the best interest of the child.

47
Q

Child custody reports prepared by an investigator

A

Both parties have a right to view the reports prior to a custody hearing and a right to cross examine the investigator.

48
Q

Modification of custody

A

If there has been a change in circumstances and it would serve the best interest of the child a custody arrangement may be modified.

Example, mental health of custodial parent has deteriorated, parent has abandoned child or place the child in the care of others.

49
Q

May the court order a Medical exam as part of a custody determination?

A

Yes, the ct. may order parties to have both a medical or mental health exam when determining custody.

50
Q

Uniform Child Custody Jurisdiction and Enforcement Act- UCCJEA

A

The purpose of this act is to deter interstate kidnapping and to promote uniform jurisdiction and enforcement provisions in interstate child custody and visitation cases.

The UCCJEA governs state court jurisdiction to make and or modify child custody determination of a sister state.

The act requires state courts to enforce valid child custody determinations made by a sister state.

51
Q

Paternity and Legitimation- Presumption of legitimacy

A

A child born to a mother who is legally married is considered legitimate unless evidence to the contrary is presented.

A woman’s husband is presumed to be the child’s father. This presumption is only rebutted if:

  1. Mother gives information to the contrary
  2. paternity has been established through court action or an affidavit of paternity.
52
Q

Legitimation Procedure

A
  1. Marriage of the parents even if the marriage is subsequently deemed void.
  2. Public acknowledgment by father and acceptance of child into the father’s home with the wife’s consent.
    Wife of putative father must consent to illegitimate child’s being welcomed into the home even if she and the husband are separated.
53
Q

Birth certificate for illegitimate Child

A

the VI does not allow the name of the reputed father to be entered on the birth certificate unless:

  1. reputed father notarizes and affidavit of paternity
  2. a certified copy of a ct. order establishing paternity is presented
54
Q

Adoption

A

Adoption is not part of the VI’s common law. Codified in title 16 chapter 5- any inhabitant of the VI may petition the court to adopt another person. If petitioner is married spouse must join in the petition.

55
Q

Dissolution of Vesper Marriage

A

The ease of dissolution depends on how long the couple has been married:

Shorter then 1 year:
1. Cease living together
2. written notice that party is going to seek to terminate vesper marriage.
2. File notice of termination with Super. Ct.
Termination will take effect 10 days after filing.

Longer then 1 year:
Couple must agree and file for termination together. Termination will take effect on date of filing.

If couple does not agree they must seek formal divorce proceedings.

56
Q

Domestic Violence

A

Any person subject to domestic violence by a spouse, former spouse, parent, child, or any person related by blood, marriage, a present or former household member with whom the victim had a sexual or intimate relationship with.

Marital status is irrelevant to claim of domestic violence.

57
Q

What is an adoptive child’s right of inheritance?

A

VI statute provides that an adopted child may inherit from his adoptive parents the same as a child born to them except where the inheritance is limited to “ heirs of their body” or lineal or collateral kindred by right of representation.

An adoptive child may also inherit from the natural parents. Natural parents lose all rights to the child but the statute is silent as to child to parent.

58
Q

Divorce and then subsequent remarriage to one another

A

Properties obtained by one spouse pursuant to a divorce decree remain the sole property of the awardee spouse despite the subsequent remarriage to ea. other. hence this property is not subject to equitable distribution if parties once again get divorced.

59
Q

Factors to consider per Grandparent Visitation

A

unlike child custody matters the VI legislature has mandated specific factors that the ct. consider when determining grandparent visitation rights:

  1. best interest of the child
  2. Interference in parental relationship or parental authority
  3. Relationship between child and grandparent
  4. would child’s physical or emotional health be endangered with or without the visitation.
  5. Age of the child
  6. wishes of the child if mature enough to make wishes known.
  7. recommendation of Guardian ad Litem
  8. any other factors the court deems fit to consider
60
Q

Community Property

A

The VI is no longer a community property jurisdiction and has not been since March 17, 1921.

Thus if parties were married prior to 3/17/1921 when Danish Common Law was still in effect any property purchase was community property and both spouses must join in the convenience of said property.

However, any property purchased after March 17, 1921 would not be automatically community property or marital property ant his may have been equitably distributed during a divorce or held separately during the marriage.

61
Q

Permanent Restraining Order

A

The Ct. must schedule a hearing on the matter within 10days of the filing of a complaint. Accused must have notice.

At the hearing the allegations in the complaint must be proven by a preponderance of the evidence. PRO may be issued for up to 24 months.

62
Q

Rights and duties of husband and wife- is there liability for each other’s debts?

A

Neither spouse is liable for the debts or liabilities of the other which were incurred before the marriage or after the marriage dissolved.

Jointly responsible for the debts incurred during the marriage.

63
Q

Rights and duties of husband and wife- transfer of property

A

Spouses may sell or convey property to each other.

64
Q

Vesper Marriage

A

a civil marriage between two people who are above the age of 60 years, competent and unmarried.

Parties agree to live together as husband and wife but with no interest or claim to the others marital estate, property, or income and without a legal right to inheritance from the other’s estate. Although vesper couples may devise and bequeath to one another if they want.

65
Q

Adoption Decree

A

Ct. may grant adoption decree if petitioner is in the best interest of the child, consent of all relevant parties has been obtained, and petitioner is suitable.

66
Q

Term of marriage

A

up to the date of legal dissolution (i.e. date of divorce decree) for the purpose of distribution of marital assets.

67
Q

Dissolution of a Vesper marriage over one year absent a mutual agreement

A

Can only be dissolved through divorce proceedings. Support or alimony may be awarded if one party is rendered dependent because of the marriage and the other is financially able to contribute to the other’s support.

68
Q

Final Judgment with regards to Divorce proceedings

A

a judgment declaring a marriage void or dissolved terminates the marriage as to both parties. If the action was contested neither party may remarry until the action has been heard on appeal and if no appeal taken until the expiration of the time for appeal (30 days).

69
Q

Common Law Marriages

A

VI does not recognize common law marriages. However, the VI will recognize a common law marriage entered into by a VI domicilliary in a state where such a marriage is valid.

70
Q

Who must get notice when Grandparent petitions for visitation?

A

Personal service must be made to the child’s parent, step parents or any person who has physical custody of the child.

71
Q

Child Support

A

Ea. parent is required to share in the support of their children, based on their respective financial positions. Must follow the child support guidelines - departure is permitted only when justice so requires and in very limited circumstances.

72
Q

Vesper Couple and Taxation

A

Vesper Couples are considered single for purposes of taxes.

73
Q

Requirements for a valid marriage in VI

A
  1. must be a man and a woman
  2. Marriage must be solemnized
    a. Clergy man or minister of any religion
    b. local spiritual assembly of bahia or
    c. any judge or any Ct. of record
  3. Marriage License- 8 day posting requirement
  4. parental consent if parties are under 18 and never previously married.
74
Q

Good Cause Factors to open sealed adoption file

A

In re Sherman- Ct. delineated 4 balancing factors

  1. Actual or potential interests of the adoptee
  2. Actual or potential interests of adoptive parents
  3. actual or potential interests of the biological parents
  4. the impact the request would have on the adoptive system as a whole.
75
Q

What is Comity?

A

A voluntary recognition of foreign judgments. Recognition is within the Ct.’s discretion and may be granted if foreign ct. has jurisdiction and procedures were fair.

76
Q

Determinations Ct. May make in Final Divorce Decree

A
  1. child custody
  2. Child support
  3. Name changes
  4. Alimony
  5. Delivery of personal property to one or both parties
77
Q

Who may access sealed adoption records ?

A

Birth and adoption records are to be sealed. Once the adoptee reaches the age of majority and if competent they may inspect those records without a court order.

78
Q

Jurisdiction of divorce ct.

A

VI has jurisdiction in divorce action if the petitioner is an inhabitant of the VI who:

  1. is domicilded in the VI at the commencement of the action (living here with the intent to make this ones home)
  2. Resided in the VI continuously and uninterruptedly for at least 6 weeks prior to the commencement of the action (must have been physically present)
79
Q

Duties of Vesper Couple to care and Maintain

A

Only duties to care, support, and maintain only while couple is still living together

80
Q

Age of consent for marriage

A

Girls 14
Boys 16
However, still need parental consent if under 18.

81
Q

what happens to property held in the entirety upon divorce?

A

Upon divorce property held as tenants by the entirety automatically becomes a tenacy in common. Tenancy in the entirety is not subject to the debts of one spouse. However, upon conversation to tenants in common the property becomes subject to individual debts.

82
Q

Termination of Grandparent visitation

A

Upon petition of either parent if the ct. finds a significant change in circumstances where visitation is no longer in the best interests of the child the ct. may modify or terminate grandparent visitation.

Ct. order must be in writing and state such reasons for denial or termination- considered final order for purposes of appeal.

83
Q

Rights and duties of husband and wife- Interspousal immunity

A

Interspousal immunity prohibits spouses from suing one anther or petitioning the court without the spouse joining in the petition.

This doctrine has been abolished in the VI. As such, spouses may sue one another and amy file suit without the participation of the other.

84
Q

Rights and duties of spouses- Power of Attorney

A

spouses may give and revoke power of attorney to each other to control or sell the other’s property

85
Q

Retention of jurisdiction

A

The ct retains jurisdiction over the parties even after they have left the territory and may modify its final order @ anytime after judgment.

86
Q

PRO Hearing

A

Petitioner must show intent to injure:

  1. the facts and circumstances surrounding the act
  2. the situation of the parties
  3. the nature and extent of the violence
  4. the object to be accomplished
87
Q

Notice of adoption

A

Notice must be given to all parties- non consenting parties and otherwise.

If a non-consenting party was not personally served he/ she will within one year after actual notice may apply to Ct. for a new hearing on the adoption.

VI Bar Exam (7 decks)

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