Domestic Relations Flashcards Preview

VA: Final Review > Domestic Relations > Flashcards

Flashcards in Domestic Relations Deck (70):
1

Valid Prenup Agreement: Elements (2)

1. Writing
2. Voluntary (no duress or unconscionability)

2

Prenup: Factors Suggesting Duress

1. Time pressure
2. Surprise
3. No counsel
4. Lack of bargaining power

3

Prenup: Unconscionability: Elements

1. Other spouse doesn't disclose financial assets
2. No independent knowledge of financial assets AND
3. Haven't waived disclosure

4

May prenups be modified during the marriage?

Yes

5

Ceremonial Marriage: Elements (2)

1. Someone conducts ceremony
2. Spouses exchange promises

6

Annulment: Definition

About problems that existed before the marriage

7

Annulment: Effect of a Void Marriage

Not married, so annulment is optional

But annulment good idea to:
1. Establish clarity of the record
2. Adjudicate collateral matters

8

Annulment: Grounds for a Void Marriage

1. Bigamy
2. Consanguinity (incest) - but may marry first cousin
3. Minor (under 18)

9

Annulment: Exception to Minor Rule that Voids Marriage

1. Marry at 16 if one parent consents OR
2. Marry under 16 if:
• Heterosexual couple
• Pregnant AND
• Minor's parents consent

10

Annulment: Grounds for void marriage waivable?

No

11

Annulment: Grounds for a Voidable Marriage

1. Mental incapacity (defect, disability, or intoxication)
2. Incurable impotency (permanently can't have sex)
3. Duress
4. Fraud (misrep/conceal info a/b essential element)

12

Annulment: Fraud: Factors of Essential Element of Marriage (Statutory (4) and Case Law (3))

Statutory:
1. Felony conviction
2. Pregnant w/ another man's baby
3. Impregnate another woman
4. Former prostitute

Case Law:
1. Religion (belief or intensity)
2. Procreation (unable or carry genetic disorder)
3. Sexual proclivity

13

Annulment: SOL

W/in 2 years of discovering the ground for annulment

14

Annulment: Effect

Valid marriage until a judge grants the annulment

15

Annulment: Grounds for voidable marriage waivable?

Yes - except for intellectual disability (b/c that never goes away)

16

Divorce: Which court?

Circuit Court - court of equity

17

Divorce: Elements for SMJ

1. One spouse is domiciled in VA AND
2. Has lived in VA for at least 6 months before filing

18

Divorce: Effect of Court Having SMJ?

Power only to grant divorce (no collateral orders)

19

Divorce: Venue

May file in any county, but there are preferred venues:
• Rez: county/city of last rez; county of D's rez
• Non-rez: county of P's rez
• If any county, court may accept if neither party objects

20

Divorce a mensa et thoro
• Definition
• Rule + Exception
• Grounds (2)

Definition: Legal Separation

Rule: Doesn't preclude getting absolute divorce later
• Exception - same exact grounds

Grounds:
1. Cruelty and reasonable apprehension of bodily harm
2. Abandonment and desertion (short desertion OK)

21

Divorce a vinculo matrimonii: Definition (and types)

Absolute Divorce (fault and no fault)

22

Fault Divorce
• Rule
• Grounds (3)
• Affirmative Defenses (3)

Rule - can't use uncorroborated testimony from either party
• slight corroboration OK if no reason to suspect collusion

Grounds:
1. Adultery, sodomy, or buggery
2. Felony convictions (sentenced more than 1 yr in prison)
3. Cruelty or desertion

Affirmative Defenses
1. Condonation (know a/b it + forgive + resume marriage)
2. Connivance (quasi entrapment)
3. Recrimination (quasi unclean hands)

23

No-Fault Divorce: Types (and elements for each)

Bi-lateral (no kids)
1. Separation Agreement AND
2. Live separate and apart (no sex) for 6 consecutive mos

Unilateral (no kids) or No Separation Agreement
1. Live separate and apart (no sex) for 1 year

24

Dissolution: Overview of Major Issues (2)

1. Annulment
2. Divorce

25

Economic Issues: Overview of Major Issues (2)

1. Property Division
2. Alimony

26

Property Division: Rule and Analytical Framework

Rule: Equitable Distribution

Step 1: Categorize each asset couple owns
• Husband's Separate Property
• Wife's Separate Property
• Marital Property

Step 2: Distribute/divide assets

27

When distributing assets, is there a 50/50 split presumption?

No

28

Property Division: Distribution Methods (2)

1. In-kind
2. Check

29

Property Division: Separate Property (5)

1. Property acquired before marriage
2. After wedding, one spouse receives property via gift or inheritance
3. Property acquired after parties separate
4. Pain and suffering damages recovered during marriage
5. Passive appreciation
• values increases over time and b/c of market forces

30

Property Division: Marital Property (2)

1. Everything acquired by either party during marriage
• including vested intangibles (stock options; pensions)
2. Active appreciation
• value increases by either party's active effort

31

Distribution: Marital Property: Factors (6)

1. Spouses' age and health
2. Economic contributions
3. Liquid and illiquid assets
4. Tax consequences
5. Debt (assets w/ negative value)
6. Catch-all (but alimony NOT a factor)

32

Alimony pendente lite

Court orders temporary alimony while case is pending
• preserves the status quo

33

Alimony: Modification: Standard and Examples

Standard: bona fide change in circumstances
• Payor loses job
• Payor or recipient injured

34

May alimony be modified to reflect inflation (via escalator clauses)?

No

35

Alimony for void marriages?

No

36

Awarding Alimony: Factors (8)

1. Spouses' age and health
2. Earning capacity
3. Educational attainments
4. Job prospects
5. Past employment history
6. Standard of living established during marriage
7. Amt of property each spouse will have (separate/marital)
8. Marital fault (except adultery is complete bar)
• Exception to exception - manifest injustice (high standard)

37

Alimony: Termination: Automatic vs. Semi-Automatic

Automatic
1. Either party dies
2. Recipient remarries

Semi-Automatic
1. Recipient co-habits w/ another (usually 1 year)

38

Alimony: Enforcement Mechanisms (3)

1. Wages reduction order (employer sends $ to recipient)
2. Seize and sell property
3. Contempt of court

39

Children: Overview of Major Issues (4)

1. Paternity
2. Custody
3. Support
4. Adoption

40

Paternity: Presumption if Woman is Married

Rebuttable presumption that husband is father
• Rebut - husband not around during conception (military)

41

Paternity: Presumption if Woman Married + A.I.

Rebuttable presumption husband father (not sperm donor)

42

Paternity: Non-Marital Child (two options)

1. Man acknowledges + files paper --> father

2. Paternity Proceeding - clear and convincing evi he's dad

43

Paternity: Effect of a paternity proceeding

1. Declaratory judgment that man is father
2. Predicate to child support
3. Addresses custody issues

44

Joint/Shared Custody: Factors

1. Parents cooperative?
2. Geographic proximity (distance + time)

45

Custody: Initial Suit
• Jurisdictional Rule
• Default Rule
• Effect (and exception)

Juris Rule - whichever state is:
1. Child's current home state OR
2. Was child's home state w/in last 6 months

Default Rule - state w/ greatest connection to child

Effect: continuous, exclusive jurisdiction
• Exception - parent and child left forum state

46

Custody: Home State: Definition

State where child lived for 6 consecutive mos w/ parent

47

Custody: Jurisdiction: Relocation Cases

When child moves w/ parent:
• Old state retains juris for 6 months
• New state acquires juris once parent and kid lived there for 6 months

48

Custody: Factors (6)

1. Age, physical, mental health of parents and child
2. Relationship b/t child and each parent
3. Domestic violence (nearly disqualifying)
4. Other fam relations nurtured (siblings; extended fam)
5. New companion
6. Parent's willingness to allow visitation

49

Dispute b/t Parent and Non-Parent: Presumption

BIC served by keeping kid w/ biological parent
• non-parent bears burden of proof

50

Custody: Relocation Doctrine

Custodial parent intending to relocate must notify court 30 days in advance.
• Court decides whether move is in BIC

51

Custody: Modification Doctrine

Standard: bona fide change in circumstances
• "Stability" in child arrangements is always a factor

52

Custody: Visitation

Non-custodial parent entitled to visitations (rarely denied)
• Poses a danger --> supervised visitations

53

Custody: Visitation: Parent vs. Non-Parent: Burden

Non-parent bears burden of proof: must show that denying visitation would be detrimental to the child

54

Child Support: Parents' Duty

Duty of economical support

55

Child Support: Duration of Duty (Rule + Exception)

Rule: Through 18th bday

Exception:
1. 19th bday or until high school grad (whichever later)
2. Disabled child (extended indefinitely)

56

Child Support: Amount (Rule + Exception)

Rule - use guidelines based on parental income

Exception - court has discretion to depart if:
1. Child has special needs
2. Parents' earning capacity and financial resources
3. Family living standard before separation/divorce

57

Child Support: Modification (Standard and Rule)

Standard: bona fide change in circumstances

Rule: only prospective - late payments (arrears) aren't modifiable

58

Child Support: Enforcement Mechanisms (6)

1. Wage reduction orders
2. Property seizure and sale
3. Revoke professional license
4. Intercept tax refunds
5. Contempt of court
6. Uniform Interstate Family Support Act - forces dead beat parent who moves out of state to still make payments

59

Adoption: Two Steps

1. Consent from all necessary parties (veto power)
2. Adoption agency or adoptive parents get physical custody

60

Adoption: People w/ veto power (4)

1. If marital child --> biological parents
2. If non-marital child --> biological mom
3. If adoptee over 14 --> adoptee
4. If child in custody of non-biological parent --> custodial guardian

61

Adoption: Ways of dispensing biological father's veto power (2)

1. Unknown identity
2. Properly served + no objection w/in 21 days

62

Adoption: Terminating Parental Rights
• Grounds (2)
• Burden of Proof (3)

Grounds:
1. Neglect
2. Abuse

Burden of Proof --> State
1. Clear and convincing evidence
2. Relevant conditions unlikely to be corrected AND
3. Termination in BIC

63

Evidentiary Markers of Neglect and Abuse (4)

1. Mental ailment/illness renders parent unable to care for child
2. Serious drug or alcohol abuse
3. Habitually abuse child
4. Don't respond to state agency's efforts to improve situation

64

Adoption: Adoption Agencies Tasks (2)

1. Thorough investigation of potential parents
2. Hearing to finalize adoption (BIC)

65

Adoption: 15-Year Rule

OK to adopt an adult, provided adoptee is 15 years younger than adopter

66

Must there be a finding of "unfitness" before a court terminates parental rights?

No

67

Support of Parents By Children: Exception

No obligation if there's substantial evidence that the child was deserted, neglected, abused, or not supported by the parent before emancipation

68

Does VA recognize common law marriages?

Relationship created in VA --> no

Relationship created in another state where valid --> yes
• exception: parties are forbidden to marry under VA law

69

Child Support: Settlement Agreement or Statute: Which Controls?

Settlement agreement - the statutory language governs only when no agreement is reached

70

What's the standard to rebut the strong presumption that a child born during marriage is a marital child?

Sufficient evidence