Flashcards in Domestic Relations Deck (67):
What is required for a marriage in VA?
Ceremony and license.
License expires after 60 days.
From the clerk of circuit court.
Can a common law marriage be established in VA?
No. Can be recognized if entered into in a different state (but not a one-night stopover)
Does a voidable or void marriage require a judicial determination to establish nullity?
Voidable requires judicial determination (fraud, duress, mental incapacity)
Void marriage cannot be waived. (bigamy, incest, age, same-sex)
What is the requirement for the premarital agreement to be valid?
Writing general required
generally deals with economic issues if marriage fails
fair and reasonable provision for wife
full disclosure of husband's worth and intelligence
How can a premarital agreement be revoked? amended?
In writing and signed by both parties. No consideration.
If marriage is void, what is the effect of premarital agreement?
enforceable only to extent necessary to avoid an inequitable result
Ways to challenge premarital agreement?
Duress to enter into agreement (time pressure - long premarital agreement right before ceremony)
unconscionable (failure to disclose asset unless waived)
What is an annulment?
requires a prior existing problem before marriage, grounds to get out of marriage (generally lack capacity)
Judicial determination required for voidable
Judicial determination not needed for void marriage
What are the effects of void marriage?
- parties cannot waive grounds of void marriage
- collateral attack by third party is allowed
- no judicial determination
What is a divorce a mensa et thoro?
Divorce from bed and board - perpetually separated and protected in persons and property
- grounds include cruelty, bodily harm, abandonment, desertion
- neither party may marry again during life of other (does not determine marriage - just legal separation)
What is a divorce a vinculo matrimonii?
absolute divorce - extinguishes all contingent rights of either spouse
- either party is free to marry someone else
Where must a suit for divorce or annulment be brought?
Chancery side of circuit court (unless locality has family court)
- one parties needs to be resident/domiciliary of Commonwealth for at least six months
- venue lies where one of the parties last cohabited at option of plaintiff
How long does a person need to be residence before filing for a divorce?
six months for one of the parties
What is the effect of ex parte divorce?
no personal jurisdiction over defendant - no grounds to issue orders on economic grounds (sale or transfer of marital property)
- divisible divorce doctrine (divorce in VA and economic remedies where defendant is located)
What is the standard to prove grounds for fault divorce?
clear and convincing evidence, except for cruelty or desertion
Requirements for cruelty/desertion for fault based divorce?
serious bodily harm or death
- continuous conduct generally required
- no duty to reconcile
- must be for one year (broken period cannot be added together)
Defenses for a fault based defenses?
Condonation - forgives conduct and resumes cohabitation (except for domestic relationship)
Connivance - consent by innocent party (awareness)
Recrimination - plaintiff is also guilt of same grounds for fault-based divorce
Statute of limitations of adultery for fault based divorce.
Five years from when it occurred
No fault marriage requires
- no cohabitation for six months (after that time, the divorce is granted)
- no children
- separation agreement is entered into
No-fault divorce involving children requires?
- one year separation and no cohabitation
- no sexual intercourse with wife or others (then adultery).
Why use a divorce a mensa et thoro?
- this is a separation agreement
- still married (entitled to health benefits, tax returns, joint tenancy)
- no waiting period (if domestic violence)
- in anticipation of absolute divorce (can merge after one year)
Can a divorce a mensa be revoked?
yes if there is reconciliation between the parties
How is martial property distribution upon divorce?
Equitable distribution of martial property (not separate property)
First classify all assets owned by people
Second determine rights in the assets
Third divide the assets
Is income received from separate property considered martial property for the equitable distribution of assets in divorce?
Remains separate property
- burden on other spouse to show active increase due to either spouse during marriage
What is separate property for equitable distribution upon divorce?
- any property owed by one spouse prior to marriage
- any property inherent or received a gift by one spouse alone is separate property
- pain and suffering from tort claim for one spouse (or any investment from the claim)
- any property acquired after parties have separated
In determining equal distribution of martial assets, what happens to separate property that is commingled with martial property?
Presumption is martial property - doctrine of transmutation
- martial property cannot be separate property
Do stock options and rights in pension plans count as martial property?
Yes - martial property and can be equitable distributed
How does court divide martial property upon divorce?
Court shall consider factors:
1) monetary contributions of each of the party
2) duration of the marriage, age, health
3) circumstances for divorce
4) how items acquired
5) debts and liabilities of each spouse
6) martial share of retirement, pension
7) liquid character of marital property
8) tax consequences
9) any factor to arrive at a fair monetary award
Should the court consider support and maintenance when dividing martial property?
Division of martial property without regard to maintenance and support
How can martial property be distributed to ex-spouses upon divorce?
Division in-kind and give them to each
Monetary award based on division
How can spouses in divorce avoid an equitable distribution of martial property?
Separation agreement if not unconscionable, fraud or duress
Is temporary spousal support permitted while divorce is pending?
Yes - referred to as pendente lite awards - previous status quo
How can court award spousal support?
1) lump sum
2) periodic period (any time period)
- adultery is an absolute statutory bar to spousal support, unless manifest injustice
Is it reversible error if the court fails to consider all the statutory factors for spousal?
Yes, no selective application.
Is an escalator clause allowed in a court order spousal support?
No, cannot increase spousal support each year.
- modification must be based on bona fide grounds
Is cohabitation an event that terminates spousal support?
No automatic, unless it continues for a year.
- terminates upon death or re-marriage
What is the standard of proof for paternity for nonmartial children?
Clear and convincing evidence
How is a nonmarital children determined?
1) written agreement
2) scientific test of at least a 98%
3) relevant evidence (open cohabitation, using surname, medical evidence, admission, genetic blood testing)
What is use to determine child custody?
Best interest of child - follow Uniform Child Custody Act
What court can enter a custody order?
Home state of child - where child has lived with parent for six months with parent prior to commence to case
does not apply when there is no other state that qualifies as "home state"
Once a court enters a child custody order, what does the court have?
continuing exclusive jurisdiction by home state if parent with custody lives in that state.
Is adultery or homosexuality a per se parental unfitness?
No, always look to best interest of children. Check to see if there is an adverse impact on child.
If the parent with custody decides to relocate, what must the parent do?
written notice to court within 30 days
- court re-determines best interest of child
Is visitation rights dependent paying child support?
Can judge substitute the court's judgment for the parent with custody judgment regarding visitation rights?
No. Third party that want visitation has a high standard - detrimental to child (interest trump due process rights)
Who has a duty to provide child support?
- presumed when children live with parent
What must the court do if it deviates from the child support guidelines?
Court must make a written finding.
What is not a bona fide change of circumstances?
Voluntary reduction of pay (voluntary unemployment) to avoid child support
income is imputed to voluntary reduction
To terminate parental rights, who brings the action and what is the standard?
Local agency who must show clear and convincing evidence of a serious and substantial threat to life, health, development, and not reasonably likely that conditions will improve
- consider best interest of child
To obtain a divorce on grounds of separation requires what?
No cohabitation for more than one year.
If no children may be six months if there is a property settlement agreement.
What is an absolute bar to spousal support?
Exception - court determines that from clear and convincing evidence that denial of support would constitute a manifest injustice
When is the right to spousal support extinguished?
When the spousal support right is nor mentioned or reserved in the divorce decree or not reserved by the court
Can the rights of children to support from parents be contractually modified by parent's property settlement agreement upon divorce?
No. can always revised child support based on change in circumstances.
Virginia follows a "parent generosity" rule.
To obtain divorce on grounds of adultery is a third party corroboration necessary?
Yes. - need third party to corroborate each ground of divorce.
Can there be constructive desertion when the spouse at fault remains under the same roof?
Yes, it can be willful breach and neglect of martial duties that destroys a home life.
Does desertion need to be proven by clear and convincing evidence to obtain a divorce?
Fault based ground must be corroborated.
Upon divorce what happens to property held in tenancy by the entirety?
becomes tenancy in common and each spouse owns a 1/2 interest
Who has priority as between a claim for spousal support and a secured interest in property previously held by tenancy by the entirety that was obtained by one spouse?
Spousal support has priority.
Is incompatibility a grounds for divorce in VA?
Is separation by mutual consent sufficient to show desertion?
Desertion needs to be breaking off of marital cohabitation and an intent to desert in the mind of the offender.
If the parties enter into a valid property settlement agreement before the final divorce decree, can the court modify it?
Property settlement agreement is effective upon execution.
If child support is past due, can the court order reduction of the amount in arrears?
No - child support payments have vested and obligation to pay continues.
Can be modified by filing a motion and court can order retroactive changes to when the motion is filed.
If divorce decree made no provisions for spousal support, can the parties latter make a spousal support agreement?
Yes enforceable as a contract.
If a VA couple is married in Maryland and signs a prenuptial agreement in Maryland, what law should apply when the couple seeks a divorce in VA?
Maryland - where the contract was made.
Can a party to a divorce request a jury trial?
No. Claim is in equity and no jury trials in equitable claims.
- May be an advisory jury to assist judge on certain issues.
If a couple has a prenuptial agreement that maintains separate property during the marriage, how should assets purchased from joint bank account be handled when dividing the marital estate?
Treated as martial property.
Once funds are placed in a joint account then it is martial and all property resulting from the joint account is martial, even if taken in the name of one of the spouses.