Domestic Relations Essay Rules Flashcards
(253 cards)
1
Q
T/F If there are multiple grounds for divorce, the trial court can use its discretion in deciding the grounds which divorce will be granted
A
True
2
Q
If there are multiple grounds for divorce, the trial court can
A
Use its discretion in deciding the grounds which divorce will be granted
3
Q
In making its equitable distribution the court should determine
A
1) Ownership and value of all property, and whether that property is marital or separate property
2) Rights and interests of each party in the marital property, and whether an award of marital property in favor of either party is warranted; and
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 statute
4
Q
At an equitable distribution hearing, the court will determine
A
The value of all property, real and personal, tangible and intangible, acquired during the marriage
5
Q
T/F The amount awarded as a result of equitable distribution will be considered in arriving at an amount for spousal support
A
True
6
Q
Adultery is an absolute bar to spousal support unless the court determines from _______ that denial of spousal support would constitute ________
A divorce decree need not be issued on the ground of adultery for this rule to apply
A
Clear and convincing evidence; “manifest injustice”
7
Q
In a contested case, the trial court must provide ________ identifying ________ on a request for spousal support. Failure to consider all factors is ________
A
Written findings and conclusions; the statutory factors that support the court’s ruling; reversible error
8
Q
T/F If the court failed to consider the statutory factors re: spousal support, it erred
A
True
9
Q
The court determines the value of property owned by the parties as of the date of the
A
Evidentiary hearing on all property issues.
However, a different date may be used by the court to “attain the ends of justice”
10
Q
Can a different date (other than the date of the evidentiary hearing on all property issues) be used by the court?
A
Yes, a different date may be used by the court “to attain the ends of justice”
11
Q
A divorce a vinculo matrimonii may be granted on the application of either party if and when
A
The spouses have lived separate and apart without any cohabitation and without interruption for one year
12
Q
T/F A party who asked for a divorce based upon a fault ground can, by motion, request a no-fault separation divorce after the required statutory waiting period
A
True
13
Q
T/F A party can make a motion to change grounds for divorce without formally amending his bill of complaint or crossbill
[Hugh could request a modification to his pleadings at trial]
A
True
14
Q
T/F When there are multiple grounds for divorce, the trial court can use its discretion in deciding the grounds upon which divorce will be granted
[As such, the trial court was free to disregard the evidence of adultery and grant Hugh’s request that he be granted a divorce on the ground that the parties were separated for at least one year]
A
True
15
Q
VA law directs courts to consider specific factors set forth in the relevant statute when making an award of spousal support
These factors include
A
1) The duration of marriage
2) The monetary and nonmonetary contributions of each party to the marriage
3) The parties’ earning capacities
4) The age and physical and mental condition of the parties
5) The provisions made regarding marital property, and other relevant factors
16
Q
Spousal support determination
A
1) Age and physical/mental conditions of the parties
2) Education and training of the parties
3) Earning capacity, obligations, needs, and financial resources of the parties
4) Contributions (monetary and nonmonetary) each party made to the family
5) Property interests of the parties; including the results of the equitable division of property
6) Tax consequences
7) Standard of living established during the marriage
8) Duration of the marriage
9) Marital fault (adultery absolute bar; cruelty or desertion can be considered but isn’t absolute bar)
17
Q
What do courts consider in dividing property?
A
1) Age/health of both parties
2) Duration of the marriage
3) Marital fault
4) Liquid or nonliquid character of the assets
5) The incomes of both parties
6) Custody of children (may be a reason to award one spouse the family home)
7) Tax consequences
Anything else! Ultimately, courts can look to any factor that it deems just an appropriate
18
Q
Upon decreeing a divorce, a VA court can only make an equitable distribution of
A
The parties’ marital property; it cannot distribute their separate property
19
Q
Time of valuation
A
Typically, the court determines the value of the property owned by the parties as of the date of the evidentiary hearing on property issues
However, a different date may be used by the court “to attain the ends of justice”
[Typically, unless the court retains jurisdiction (e.g., granting a divorce prior to a hearing on complex property issues), property division awards cannot be modified]
20
Q
T/F Typically, unless the court retains jurisdiction (e.g., granting a divorce prior to a hearing on complex property issues), property division awards cannot be modified
A
True
[Hugh did not file a motion between the time of the trial and time of the decision - or even, it seems, within a reasonable time after the decree - asking the trial court to reevaluate the value of the portfolio even though the increase was presumably readily apparent. If he had, then the trial court might have found that justice warranted considering the change in value between trial and the entry of the decree]
[Examiners likely would have given credit for a well-reasoned answer reaching the opposite conclusion in the itnterests of justice, esp if examinee concluded Hugh filed his motion soon after the January 2019 ruling]
21
Q
Upon decreeing a divorce, a VA court can only make an equitable distribution of the parties’
A
Marital property
22
Q
Separate property is
A
1) All property, real and personal, acquired by either party before the marriage
2) All property acquired during 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 maintained as separate property; and
4) Property acquired after the last separation of the parties
23
Q
Separate property includes
A
1) Property owned before marriage
2) Property acquired through gift or inheritance
3) Property acquired after separation
4) Passive appreciation from separate property (increase solely due to market forces)
[Any appreciation during marriage due to effort of either spouse is treated as a marital asset]
24
Q
Marital property
A
1) All property titled in names of both parties, whether as joint tenants, tenants by the entirety, or otherwise, and
2) All other property acquired by each party during the marriage that is not separate property
[Generally, the increase in value of separate property during marriage is also separate property]
25
Marital property
1) Property acquired during marriage
2) Earnings acquired during marriage
3) Any jointly owned property (presumed to be marital unless there's evidence to the contrary)
[Generally, the increase in value of separate property during marriage is also separate property]
26
T/F Generally, the increase in value of separate property during marriage is also separate property
True
27
Exception - Marital effort rule may apply such that
An increase in value of separate property due to the active efforts of **either or both** spouses during the marriage may be deemed marital property
28
An increase in value of separate property due to ________ of ________ or ________ during the marriage may be deemed _______
The active efforts; either or both spouses; marital property
29
Spousal support generally
VA law directs the court to consider **specific factors** set forth in the **relevant statute** when making an award of spousal support
30
VA law directs the court to consider ________ set for in the ______ when making an award of ________
Specific factors; relevant statute; spousal support
31
Spousal support generally - VA law directs the court to consider specific factors set forth in the relevant statute when making an award of spousal support. These factors include
The duration of marriage
Monetary and nonmonetary contributions of each party to the marriage
Parties earning capacities
Age and physical and mental condition of parties
Provision made regarding marital property, and other relevant factors
32
T/F When a case is contested, the trial court must make written findings and conclusions identifying the statutory factors that support its ruling on the request for spousal support. The failure to do so is reversible error
True
33
T/F Even if it isn't the ground upon which the divorce is granted, adultery is an absolute bar to spousal support unless the court finds from clear and convincing evidence that a denial of spousal support would constitute a "manifest injustice." If both spouses are guilty of adultery, however, then the needy spouse can still ask for spousal support under a no-fault ground
[Because the trial court did not enter any findings of fact or conclusions of law, its order is reversible at the outset. Regardless, even putting this error aside, the trial court erred in awarding Hugh spousal support bc Hugh committed adultery]
True
34
T/F While the trial court did not award Wynona a divorce based on that adultery, evidence at trial established Hugh's adultery. There are no facts indicating that Wynona was also an adulterer. Thus, Hugh is only entitled to spousal maintenance if the court concludes that it is necessary to avoid a manifest injustice
True
35
T/F While the spousal award is normally in the trial court's discretion, this may rise to the level of an abuse of discretion and constitute reversible error
True
36
T/F A court's upholding in a parties agreement that one would not be obligated to pay child support is a violation of public policy
True
37
Can a court uphold a parties agreement that one is not obligated to pay child support?
No, it is a violation of public policy
38
T/F Every parent has a duty to support their minor children under the age of 18
True
39
VA's child support guidelines base the parties' child support obligations on the ________ and ________ before the court
Combined gross income of both parents; number of children before the court
40
T/F There is a rebuttable presumption that the **award of child support pursuant to the child support guidelines** is the correct amount
True
41
To rebut the presumption that the award of child support pursuant to the child support guidelines is the correct amount, the trial court must make
Written findings that **application of the guidelines would be unjust or inappropriate** under the facts of the case
42
When determining the child support obligation, the court may impute income to
When determining the child support obligation, the court may impute income to
43
T/F A person owing child support arrearages will not likely be able to persuade a VA court to reduce the amount
The child support payments past due under the original order have vested, and the obligation to pay child support under the original order continues unless and until changed by the court
True
44
T/F A person owing spousal support arrearages will not likely be able to reduce or to modify the amount of his spousal support going forward
Although the spousal support obligation was not incorporated into a court order, it was part of a presumably valid and enforceable contract between the parties
Anne could sue John for the past due spousal support and recover in K
Furthermore, the court likely would not modify John's future spousal support obligation. VA courts are reluctant to remake the parties' contract even if it was not incorporated into a court order
True
45
Determining amount of award of marital property
1) Monetary and nonmonetary contributions of each party to the well-being of the family
2) The duration of the marriage, and the ages and physical and mental conditions of the parties
3) The circumstances and factors that contributed to the dissolution of the marriage
4) How and when specific items of marital property were acquired
5) The debts and liabilities of each spouse
6) The marital share of any pension, profit-sharing, or deferred compensation plan or retirement benefit
7) The liquid or nonliquid character of all marital property
8) The tax consequences to each party; and
9) Other factors that are necessary or appropriate to consider to arrive at a fair monetary award
46
UCCJEA
Uniform Child Custody Jurisdiction and Enforcement Act
47
The UCCJEA has been adopted by a substantial majority of states, including VA, to
Avoid jurisdictional disputes between states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders
48
The UCCJEA has been adopted by a substantial majority of states, including VA, to avoid ________ between states in matters of ________ and ________, to promote ________, and to ________
Jurisdictional disputes; child custody; visitation; interstate cooperation; facilitate the interstate enforcement of custody and visitation orders
49
The UCCJEA 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
50
The UCCJEA determines ________, substantially restricts judicial power to ________, and requires states to recognize and enforce orders issued in compliance with the Act's ________
Initial jurisdiction; modify child custody decree rendered in another state; jurisdictional rules
51
The UCCJEA's **most important jurisdictional test** focuses on the child's ________
Home state
52
What is the UCCJEA's most important jurisdiction test?
The child's home state
53
A child's home state 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
54
A child's home state
The state in which the child lived with a parent or person acting as a parent for 6 consecutive months immediately before commencement of the proceeding
55
A court has initial jurisdiction to enter child custody order if it is in the state that is
1) The child's home state on the date of the commence of the proceeding, or
2) Was the child's home state within six months before the 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
56
A court has jurisdiction to **initially** enter a child custody order if it is in the state that is
1) The child's home state **on the date of the commencement of the proceeding**, or
2) Was the **child's home state within six months before the 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
[VA = home state for custody dispute. Blake lived in VA his whole life. Although Marta has taken him back to MD, he has not been there for 6 months so it is not his home state. VA remains Blake's home state bc it was his home state within 6 months before commencement of proceedings, and George, who has been acting as a parent, continues to live in the Commonwealth. Notably, even if Marta kept Blake in MD for 6 months, it might not change the result if the court finds her conduct (that is removing him suddenly and without notice) unjustifiable]
57
A court must decline to exercise jurisdiction if the party seeking to invoke the court's jurisdiction has engaged in
Unjustifiable conduct
[Notably, even if Marta kept Blake in MD for 6 months, it might not change the result if the court finds her conduct (that is removing him suddenly and without notice) unjustifiable]
58
In determining custody and visitation of a minor child, the court must give primary consideration to
The best interests of the child
59
T/F Because **parental rights are constitutional rights,** there is a presumption that it is in the best interests of the child to award custody to the parents
True
60
Parental rights are
Constitutional rights
61
Parental presumption
Because parental rights are constitutional rights, there is a presumption that it is in the best interests of the child to award custody to the parents
However, this presumption can be rebutted by clear and convincing evidence
62
Parental presumption - because parental rights are constitutional rights, there is a presumption that it is in the best interests of the child to award custody to the parents. However, this presumption can be rebutted by
Clear and convincing evidence
63
In a child custody contest between a natural parent and a third party, the burden of proof should be placed on ________ to overcome the **presumption in favor of parental custody**
The third party
64
To overcome the presumption that it is in the best interests of the child to award custody to the parents, the nonparent petitioner must typically show that the biological parent is
Unfit or that the **parent's rights have been or can be terminated.** The latter typically requires neglect, abuse, or abandonment
65
Triggering a best interest analaysis - parental presumption is rebutted
If the parental presumption is rebutted (or if there is a dispute between parents), then the court is guided by the best interests of the child for purposes of determining custody or visitation arrangements
In a best interest analysis, the court considers a wide-range of factors such as age and physical and mental condition of the child and parties; the relationship between each party and the child, the needs of the child, including the child's relationships with 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
66
If the parental presumption is rebutted (or if there is a dispute between parents), then the court is guided by the ________ for purposes of determining custody or visitation arrangements
Best interests of the child
67
In a best interest analysis, the court considers a wide-range of factors such as
Age and physical and mental condition of the child and parties; the relationship between each party and the child, the needs of the child, including the child's relationships with 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
Ultimately, the court can consider any factor it deems necessary and proper to the determination of **custody or visitation arrangements**
68
T/F Ultimately, the court can consider any factor it deems necessary and proper to the determination of **custody or visitation arrangements**
True
69
Jurisdiction
The Juvenile Court has jurisdiction to determine Custody, visitation, or support of a child when these concerns are the **subject of controversy or require determination**
When a divorce suit is filed in Circuit Court and also involves issues concerning custody, visitation, and support, the Juvenile Court is **divested of any right to make further orders regarding these issues** and must refer the matter to the Circuit Court, unless the parties agree otherwise
The Juvenile Court retains jurisdiction to enforce its previous orders so long as the Circuit Court issued no order related to the pending divorce action
70
The Juvenile Court has jurisdiction to determine
Custody, visitation, or support of a child when these concerns are the **subject of controversy or require determination**
71
When does the Juvenile Court have jurisdiction to determine custody, visitation, or support of a child?
When these **concerns are the subject of controversy** or require determination
72
When a divorce suit is filed in Circuit Court and also involves issues concerning custody, visitation, and support, the Juvenile Court is
**Divested of any right to make further orders regarding these issues** and must refer the matter to the Circuit Court, unless the parties agree otherwise
73
The Juvenile Court retains jurisdiction to enforce its ________ so long as the Circuit Court ________
Previous orders; has issued no order related to the pending divorce action
74
T/f Orders for support, like any other orders of the court, may be enforced by filing a **petition** with the court that entered the order to hold the party who is not complying with it in **contempt** of court
The purpose of a civil contempt is to obtain compliance with a court order
True
75
The purpose of a civil contempt is to obtain
Compliance with a court order
76
Contempt of court generally allows for **fines and incarceration** as the court deems appropriate when
A willful disregard has been shown for the authority of the court
77
What can be filed to hold a party in contempt of court?
Orders for support, like any other orders of the court, may be enforced by **filing a petition with the court that entered the order to hold the party who is not complying with it in contempt of court**. The purpose of a civil contempt is to obtain compliance with a court order
78
How can an order of support be enforced?
**By filing a petition** with the court that entered the order to hold the party who is not complying with it in contempt of court
79
An order of support can be enforced by filing ________ with ________ to ________ in ________
A petition; the court that entered the order; hold the party who is not complying with it; contempt of court
80
The purpose of civil contempt is to
Obtain compliance with a court order
81
When is criminal contempt imposed upon a defaulting obligor
To punish him for willful failure to pay and disregard of the authority of the court
82
It is well established that when dual or multiple grounds for divorce exist, the trial court judge can
Use her sound discretion to select the grounds upon which the divorce will be granted
83
A divorce a vinculo may be granted on the application of either party if and when the spouses have
Lived separate and apart without cohabitation and without interruption for one year
84
To be granted a divorce a vinculo, the parties must ________ and without ________ and without ________ for ________
Live separate and apart; without cohabitation; interruption; one year
85
Intent to permanently separate required
Separation must be **coupled with an intention of at least one of the parties** to live separate and apart permanently, and this intention must be shown to have existed at the beginning of the uninterrupted one year relied on for the divorce ground
86
Must separation be proven?
Yes, evidence of the parties' separation, or **any agreed upon stipulation** regarding the separation, must be presented to the court
87
It [is/is not] necessary to prove desertion by clear and convincing evidence
Is not
88
Recrimination
Recrimination is a countercharge in a suit for divorce that the complainant has been guilty of an offense constituting a fault-based ground for divorce of the same degree; if both offenses are established, neither party receives a fault based divorce
89
Desertion
If either party has willfully deserted or abandoned the other, a divorce may be decreed to the innocent party after a period of one year from the date of the act
[Thus, to succeed on her divorce petition on grounds of desertion, Sue must show that the desertion was in fact willful. Notably, it is not necessary to prove desertion by clear and convincing evidence]
90
To succeed on divorce petition on grounds of desertion, one must show that the desertion was in fact
Willful and that the other party left the relationship for a continuous one-year period
91
If either party has willfully deserted or abandoned the other, a divorce may be decreed to the innocent party after a period of
One year from the date of the act
92
T/F It is not necessary to prove desertion by clear and convincing evidence
True
93
Must desertion be proved by clear and convincing evidence?
Desertion need not be proved by clear and convincing evidence
[Sue may have trouble proving that Jed intended to desert the marital relationship when he left the marital home on January 15, 2020. To the contrary, the facts state, at least initially, Jed did not want a divorce. Rather, he wanted marriage counseling and even refrained from filing divorce when he sought custody and child support for Daisy. However, since Sue does not have to prove abandonment by clear and convincing evidence, she may be able to demonstrate that Jed did not have the intend to end marital cohabitation when she did not meet his requests for counseling and did not appear for the hearing regarding Daisy on February 10, 2010]
94
Recrimination
A countercharge that the complainant has been guilty of an offense constituting a fault-based ground for divorce of the same degree
[In response to Sue's petition to divorce on fault-based grounds, Jed might have a defense of recrimination. If Sue decide to assert as grounds for divorce that Jed willfully abandoned her, then Jed's countersuit could allege that Sue is guilty of the same conduct. If both offenses are established, then neither Jed nor Sue may obtain a fault-based divorce]
95
Recrimination - if both offenses are established, neither party may obtain
A fault-based divorce
96
T/f Willful desertion can be grounds for a divorce, and VA has similar rules for cases of cruelty, namely that the innocent party can be granted a divorce one year after the act
True
97
Typically, a divorce based on cruelty requires
Either physical cruelty (behavior that poses a danger to the life or health of the other spouse) or mental cruelty that rises to a level at which it endangers the victim's life or health
98
T/F Separation by mutual consent or in anticipation of a divorce is not an unjustified absence that warrants a divorce based on desertion
True
99
T/F Desertion may be constructive
True
100
Desertion may be
Constructive
[E.g., If one spouse's cruelty forces the other to leave the marital home, it is tantamount to desertion on the part of the guilty spouse]
101
T/F A spouse's "willful breach" and neglect of "marital duties" that essentially destroys home life may be considered desertion, even if both parties remain in the house
True
102
T/F Jed can also request a divorce on the no-fault ground that the parties have been living separate and apart for a continuous one-year period. If Sue agrees and Jed presents evidence of the parties' stipulation to the CC, the court could grant a divorce on this no-fault ground
True
103
Cruelty or desertion
If either party has been guilty of cruelty, caused reasonable apprehension of bodily harm, or willfully deserted or abandoned the other, a divorce a vinculo may be decreed to the innocent party after a period of one year from the date of act
104
In determining whether it should exercise its concurrent jurisdiction with the Juvenile Court in custody matters and modify the Juvenile Court's orders, the CC will consider
1) Whether there has been any change in circumstances since the last custody award, and
2) Whether the change in custody would be in the best interests of the child
105
Modification of custody order
In determining whether a change in custody is appropriate, the court considers:
1) Whether there has been **any change in circumstances since the last custody award**, and
2) Whether a change in custody would be in the **best interests of the child**
106
T/F Even if it finds that circumstances have changed, the CC could also conclude that modifying the custody order would not be in the child's best interests
True
107
When considering the **best interest of the child**, the Circuit Court must consider a number of statutory factors including
1) Age, condition, and needs
2) Relationship between child and each parent
3) The role each parent has played and will continue to play
4) The propensity of each parent to support the child's relationship with the other parent, as well as each parent's willingness and ability to maintain a close and continuing relationship with the child; and
5) Any other relevant factor related to the child's best interest
108
Spousal support in VA
Upon decreeing the dissolution of marriage, the court may decree maintenance and support of the spouses
Payment under a decree can be periodic, in lump sum, or both
The court has continuing jurisdiction to modify spousal support as the circumstances warrant, unless otherwise provided by contract
If the court affirms, ratifies, and incorporates by reference in its decree an agreement reached between the parties, it is deemed for all purposes to be a term of the decree and enforceable in the same manner as any provision of such decree
As with other contracts, if a settlement agreement is unconscionable or was entered into under duress or because of fraud, it is void
109
Upon decreeing the dissolution of marriage, the court may decree maintenance and support of the spouses
True
110
Upon decreeing the dissolution of marriage, the court may decree
Maintenance and support of the spouses
111
T/F Spousal support payment under a decree can be periodic, in lump sum, or both
True
112
Spousal support payment under a decree can be
Periodic, in lump sum, or both
113
T/F The court has continuing jurisdiction to modify spousal support as the circumstances warrant, unless otherwise provided by contract
True
114
The court has ________ to modify spousal support as the circumstances warrant, unless ________
Continuing jurisdiction; otherwise provided by contract
115
The court has continuing jurisdiction to modify spousal support, as the circumstances warrant, unless otherwise provided by contract
Otherwise provided by contract
[Strong argument for spousal support based on a bona fide change in circumstances but court is unlikely to award her spousal support bc she waived that right when she and Ronnie entered their written settlement agreement]
[Regardless of whether the car accident constitutes a bona fide change of circumstances that might otherwise justify a modification of spousal support, Adele and Ronnie previously entered an agreement in which Adele waived all claims to spousal support]
[A written settlement agreement was incorporated by reference as a term of the decree and, as such, is binding on all parties]
[Unless Adele can prove fraud or misconduct, she will not be able to recover spousal maintenance because she waived such claim]
116
T/F The court should not award support to either party if neither can show a need
True
[Neither party has committed a marital offense that likely would (adultery) or could (e.g., cruelty, desertion) bar a support award. Neither party has physical or mental health issues that would warrant support. Each is gainfully employed. There is no need for special training or education. Harry earns less than Wendy, but he owns the marital residence. On these facts, the Court should not award support to either party because neither can show a need]
117
Does the court have continuing jurisdiction to modify spousal support as the circumstances warrant?
Yes, unless otherwise provided by contract
[Strong argument for spousal support based on a bona fide change in circumstances but court is unlikely to award her spousal support bc she waived that right when she and Ronnie entered their written settlement agreement]
118
If the court affirms, ratifies, and incorporates by reference in its decree an agreement reached between the parties, it is deemed for all purposes to be a term of the decree and enforceable in the same manner as any provision of such decree
True
119
If the court affirms, ratifies, and incorporates by reference in its decree an agreement reached between the parties, it is deemed for all purposes to be
A term of the decree and enforceable in the same manner as any provision of such decree
[Regardless of whether the car accident constitutes a bona fide change of circumstances that might otherwise justify a modification of spousal support, Adele and Ronnie previously entered an agreement in which Adele waived all claims to spousal support]
[A written settlement agreement was incorporated by reference as a term of the decree and, as such, is binding on all parties]
120
As with other contracts, if a settlement agreement is unconscionable or was entered into under duress or because of fraud, it is void
True
121
When is a settlement agreement void?
If agreement is unconscionable or was entered into under duress or because of fraud
122
If a settlement agreement is unconscionable or was entered into duress or because of fraud,
It is void
[Unless Adele can prove fraud or misconduct, she will not be able to recover spousal maintenance because she waived such claim]
123
Child support - duty, guidelines, and inability to waive
VA has adopted child support guidelines based on the combined gross income of both parents and the number of children
There is a rebuttable presumption in any judicial or admin proceeding for child support that the amount of the award set out in the child support guidelines is the correct amount
Child support orders are subject to modification based on a change of circumstances
Notably, a court can modify child support and custody provisions even if they are included in a separation agreement that is affirmed, ratified, and incorporated in a divorce decree
Child support (and child custody) agreements are subject to judicial review, oversight, and modification bc the parties can bind themselves (as in spousal support agreement), but they can't bind their children or waive the child's right to care
Thus, regardless of whether the parties attempted to agree otherwise, a court may:
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 circumstances of the parents and for the benefit of the children
Also, VA has adopted the "parental generosity rule," which provides that child support awards are not based solely on need, but also on ability to pay
124
T/F VA has adopted child support guidelines based on the combined gross income of both parents and the number of children
True
125
T/F There is a rebuttable presumption in any judicial or admin proceeding for child support that the amount of the award set out in the child support guidelines is the correct amount
True
126
There is a rebuttable presumption in any ________ or ________ proceeding for child support that the amount of the award set out in the child support guidelines is ________
Judicial; admin proceeding; correct
127
T/F Child support orders are subject to modification based on a change of circumstances
True
128
Child support orders are subject to modification based on
A change of circumstances
[The court will likely order Ronnie to pay child support, particularly if doing so would align w the child support guidelines as applied to the current situation. Adele recently sustained severe physical injuries as a result of her car accident. She will require convalescent care for at least eight months and will not have any income during that period. Given that Adele temporarily has no ability to earn any income and Ronnie seems to have the ability to pay, Ronnie will likely be required to pay child support for Peanut]
[In making this declaration, the court will probably apply the VA child support guidelines]
129
T/F Notably, a court can modify child support and custody provisions even if they are included in a separation agreement that is affirmed, ratified, and incorporated in a divorce decree
True
130
Can a court can modify child support and custody provisions even if they are included in a separation agreement that is affirmed, ratified, and incorporated in a divorce decree
Yes, a court can modify child support and custody provisions even if they are included in a separation agreement that is affirmed, ratified, and incorporated in a divorce decree
[Although Adele waived all claims to future child support in the separation agreement that became part of the court's original decree, the court will not uphold this portion of the agreement]
[Adele can waive her own rights, but not Peanut's]
131
T/F In order to seek modification of the child support order, John must first establish a material change in circumstances. IF the court finds a material change of circumstances, then the court would look to the VA child support guidelines, which creates a rebuttable presumption as to the amount of support, based upon the gross income of both parents and the number of children
True
132
T/F Child support (and child custody) agreements are subject to judicial review, oversight, and modification bc the parties can bind themselves (as in spousal support agreement), but they can't bind their children or waive the child's right to care
Thus, regardless of whether the parties attempted to agree otherwise, a court may:
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 circumstances of the parents and for the benefit of the children
True
133
T/F Child support (and child custody) agreements are subject to judicial review, oversight, and modification bc the parties can bind themselves (as in spousal support agreement), but they can't bind their children or waive the child's right to care
Thus, regardless of whether the parties attempted to agree otherwise, a court may:
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 circumstances of the parents and for the benefit of the children
[Also, VA has adopted the "parental generosity rule," which provides that child support awards are not based solely on need, but also on ability to pay]
134
T/F VA has adopted the "parental generosity rule," which provides that child support awards are not based solely on need, but also on ability to pay
True
135
Also, VA has adopted the "parental generosity rule," which provides that
Child support awards are not based solely on need, but also on ability to pay
136
Modification of custody & best interest standard
Courts can modify the terms of a custody decree (like a child support decree) if there exists a material change of circumstances, even when the initial award was based on the parties' settlement agreement
137
Courts can modify the terms of a custody decree (like a child support decree) if there exists
A material change of circumstances, even when the initial award was based on the parties' settlement agreement
[Here, the court should rule in favor of Ronnie's motion to amend the terms of custody. As with child support, the court is not bound by the separation agreement when it comes to custody. Adele's accident likely constitutes a change in circumstances as it impacts Adele's ability to care for her daughter]
138
T/F In determining custody and visitation of a minor child, the court must give primary consideration to the best interests of the child
When applying this standard, courts should consider a wide range of factors including
The 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 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 preference
Ultimately, the court will consider any factors that it deems necessary and appropriate
However, there is a presumption that it is in the best interests of the child to award custody to the parents rather than a third party
True
139
In determining custody and visitation of a minor child, the court must give primary consideration to
The best interests of the child
140
In determining custody and visitation of a minor child, the court must give primary consideration to the best interests of the child
When applying this standard, courts should consider a wide range of factors including
The 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 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 preference
Ultimately, the court will consider any factors that it deems necessary and appropriate
141
In determining custody and visitation of a minor child, the court must give primary consideration to the best interests of the child but ultimately, the court will consider
Any factors that it deems necessary and appropriate
However, there is a presumption that it is in the best interests of the child to award custody to the parents rather than a third party
142
T/F There is a presumption that it is in the best interests of the child to award custody to the parents rather than a third party
True
143
There is a presumption that it is in the best interests of the child to award custody to
The parents rather than a third party
144
Constructive desertion
If one spouse's cruelty forces the other spouse to leave the marital home, it is tantamount to desertion on the part of the offending spouse
A divorce may be decreed to the innocent party after a period of one year from the date of the constructive desertion
[Here, Peggy can prove constructive desertion bc Dale's cruelty forced her to leave the marital home. Since early in their marriage, Dale has criticized Peggy constantly to the point where she became emotionally distraught. Over the years, Peggy has left the marital home after Dale verbally abused her for over an hour. More than a year has passed, and she has not retuned. Thus, a divorce based on the grounds of constructive desertion is available to Peggy]
145
If one spouse's cruelty forces the other spouse to leave the marital home, it is tantamount to desertion on the part of the offending spouse
True
146
Constructive desertion - a divorce may be decreed to the innocent party after a period of
One year from the date of the constructive desertion
147
Cruelty
Cruelty that authorizes divorce is anything that tends to cause bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb, or health
While unpleasantness or an unruly temper will not suffice, angry words, coarse abusive language, humiliating insults, and malicious treatment may as effectively endanger life or health as physical violence and can afford grounds for relief by the courts
148
T/F Cruelty that authorizes divorce is anything that tends to cause bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb, or health
True
149
Cruelty that authorizes divorce is anything that tends to cause
Bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb, or health
[While unpleasantness or an unruly temper will not suffice, angry words, coarse abusive language, humiliating insults, and malicious treatment may as effectively endanger life or health as physical violence and can afford grounds for relief by the courts]
[Here, Dale has constantly and brutally criticized Peggy throughout their marriage. As a result of Dale's criticism, Peggy would often become emotionally distraught. Over time, Peggy began to experience anxiety attacks and eventually slipped into a deep depression. Peggy even began to see a therapist as a result of Dale's cruelty. Over the course of their marriage, Dale's habit of brutally criticizing his wife never ceased, and Peggy's health has been effectively endangered as a result. After a particularly cruel incident, Peggy was forced to cease living with Dale and seek divorce. This goes well beyond mere unpleasantness. More than a year has passed since the relevant acts, so a divorce based on the grounds of cruelty is available to Peggy]
150
T/F While unpleasantness or an unruly temper will not suffice, angry words, coarse abusive language, humiliating insults, and malicious treatment may as effectively endanger life or health as physical violence and can afford grounds for relief by the courts
True
151
Cruelty - a divorce may be granted to the innocent party after a period of one year from the date of the qualifying act
One year from the date of the qualifying act
152
A divorce may be decreed on grounds of adultery. No waiting period is required for this action
True
153
Can a divorce be decreed on grounds of adultery?
Yes
154
Is there a waiting period required for adultery?
No
155
T/F Circumstantial evidence of adultery may be sufficient, but the evidence must be clear and convincing, based upon proven facts and reasonable inferences drawn from these facts
[Notably, however, forgiveness of a marital offense constitution a divorce ground (condonation) bars the right of divorce based on the offense]
True
156
Is circumstantial evidence of adultery sufficient?
Yes
157
Circumstantial evidence of adultery must be
Clear and convincing, based upon proven facts and reasonable inferences drawn from these facts
158
T/F Forgiveness of a marital offense constituting a divorce ground (condonation) bars the right of divorce based on the offense
True
159
Forgiveness of a marital offense constituting a divorce ground (condonation) bars
The right of divorce based on the offense
160
T/F The defense of condonation is defeated if Harry, after the resumption of the marital relationship, commits the same or a different marital offense
True
161
T/F If the complainant has been guilty of an offense constituting a fault-based ground for divorce of the same degree (recrimination), neither party can receive a fault-based divorce
True
162
Recrimination
The complainant has been guilty of an offense constituting a fault-based ground for divorce of the same degree
163
T/F If the parties have entered into a separation agreement and there are no minor children, a divorce may be decreed on application if the spouses have lived separate and apart without cohabitation for an uninterrupted period of only six months
True
164
If the parties have entered into a separation agreement and there are no minor children, a divorce may be decreed on application if
The spouses have lived separate and apart without cohabitation for an uninterrupted period of only six months
165
Arrearages will be assessed for
Court ordered awards
Contractual obligations, or
As the parties have agreed and reduced to writing, when the payor has not paid support accordingly
[Here, the parties reduced their agreement of the spousal support payments to a SA that was duly incorporated into the divorce decree by the court, making the parties liable for the PSA promises as if it were a court order]
166
A settlement agreement that is **duly incorporated into the divorce decree** by the court, makes the parties liable as if it were
A court order
[Therefore, Dean will be liable for what he did not pay according to the original PSA. Furthermore, even though Dean and Beverly orally agreed to the new amount of support of $500, Beverly was correct that Dean should have reduced the agreement to a new court order]
167
Even if the parties orally agree to a new spousal support amount, it does not take effect unless the parties have
Reduced the agreement to a new court order
168
T/F VA law permits married persons to enter into agreements settling the rights between them, including the right to spousal support, and such agreements become valid, enforceable contracts once reduced to writing and executed by both spouses
[Thus, even though the separation agreement was not incorporated into the divorce decree, Harry may institute a suit for breach of contract or specific performance in the Norfolk CC, which has jurisdiction over the matter provided the amount in controversy exceeds $4500]
True
169
A bona fide change of circumstances that would justify a modification in spousal support has been found when there are:
1) Changes in the payee's financial needs, beyond the payee's control; and
2) Changes in the payor's ability to pay, beyond the payor's control
170
A court may modify spousal support orders upon finding of
A "material change in circumstances"
Either:
1) Something that was not reasonably in the parties' contemplation at the time or the original award, or
2) The non-occurrence of some event anticipated by the court in making the award through no fault of the party seeking the change
The change must not be voluntary or foreseen
171
Criminal contempt is imposed upon
A defaulting obligor to punish him for willful failure to pay and disregard of the authority of the court
172
In determining whether a change in custody is appropriate, the court considers:
1) Whether there has been **any change in circumstances** since the last custody award, and
2) Whether a **change in custody** would be in the best interests of the child
173
In a claim for divorce on the fault-based ground of adultery, the act of adultery must be proved:
By clear and convincing evidence
174
Where one spouse’s consistent and ongoing verbal abuse takes a measurably emotional toll on the mental health of the other spouse such that she seeks psychological treatment and becomes fearful for her health and safety, the fault grounds for divorce most likely to succeed would be:
Constructive desertion
175
T/F Where a spouse engages in exclusively verbal abuse, and that verbal abuse causes the other to become ill and to **reasonably fear for her health and safety**, a court would most likely find grounds for a Constructive Desertion claim. This claim requires conduct is so egregious as to warrant leaving the marital home, but does not require actual physical abuse or assault. Note that Cruelty requires acts that tend to cause bodily harm
True
176
Cruelty justifying divorce must be proved by:
By a preponderance of the evidence
177
When a fault-based divorce is on the grounds of desertion, what period of living separate and apart is required before the final divorce will be granted?
1 year
178
T/F For divorces based upon either desertion or cruelty, a one year period of physical separation is required to finalize the divorce. There is no waiting period required for adultery; upon proof of adultery, the court can grant an immediate divorce
True
179
Waiting period required for adultery
Upon proof of adultery, the court can grant an immediate divorce
180
Where there are no children and there is a separation agreement, a no-fault divorce may be granted so long as:
The parties have lived separately for a continuous 6 months
181
T/F A no-fault divorce may be decreed if the parties have lived separate and apart for 6 months, without cohabitation or interruption, if there are no children and the parties have a separation agreement
True
182
Constructive desertion requires that a spouse prove
The other's conduct so egregious as to justify the non-offending spouse leaving the martial home (spouse need not actually leave the home)
183
Cruelty requires acts that
Tend to cause bodily harm and render the spouses' living together unsafe
184
T/F Adultery is not grounds for divorce when the other spouse has also engaged in adultery (recrimination), or when the adultery is condoned by resuming marital relations (condonation)
True
185
A no-fault divorce may be decreed if
The parties have lived separate and apart for 6 months, without cohabitation or interruption, if there are no children and the parties have a separation agreement, or upon separation of the parties for a period of one year if they have children
186
Connivance
Willing consent by one spouse of the other's misconduct (think: entrapment)
187
Condonation
Forgiveness of marital offenses with full knowledge of their commission (look for: knowledge, forgiveness, and resumption/continuation of cohabitation)
188
Recrimination
P is also guilty of misconduct for which a divorce may be granted
189
T/F Mental or verbal cruelty alone is not a ground for divorce in VA. However, if the conduct is such that it affects and endangers the physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice
True
190
Spousal support - standards and impact of adultery
Upon divorce, the court has discretion to award maintenance and spousal support to either spouse
The court, in its discretion, may decree the maintenance and support of the spouse to be made in periodic payments for a defined duration, periodic payments for an undefined duration, a lump sum, or any combination thereof
Adultery is an absolute statutory bar to spousal support unless the court determines from clear and convincing evidence that a denial of spousal support would constitute manifest injustice
When both spouses are guilty of adultery, however, the needy spouse may still request spousal support under no-fault divorce grounds
Although need is typically the primary consideration, in VA, cruelty or desertion may also be considered in determining the amount of spousal support
Other factors the court will consider include earning capacity, education and training, standard of living, duration of the marriage, and the contributions of each party to the marriage
191
Adultery is an absolute statutory bar to spousal support unless the court determines from ________ evidence that a denial of spousal support would constitute ________
Clear and convincing evidence; manifest injustice
[Although Peggy has committed adultery which is a statutory bar to spousal support, there is convincing evidence that denial of spousal support would constitute a manifest injustice. The parties have been married for more than 23 years. Peggy has never gone to college, never had a job, and (at Dale's insistence) has not worked outside the home during the marriage. Given these facts, Peggy likely does not have the ability to achieve a high earning capacity, or the opportunity to secure education and training. Additionally, Dale makes a very nice living as a farmer and martial arts fighter, so he probably has the ability to pay some amount of support]
192
T/F When both spouses are guilty of adultery, however, the needy spouse may still request spousal support under no-fault divorce grounds
True
193
Although need is typically the primary consideration, in VA, ________ or ________ may also be considered in determining the amount of spousal support
Cruelty; desertion
Other factors the court will consider include earning capacity, education and training, standard of living, duration of the marriage, and the contributions of each party to the marriage
[The court can consider Dale's cruelty and constructive desertion when setting an award, factors that are particularly relevant since they have impacted Peggy's mental health, which may make it hard for her to hold down a job]
194
T/F Share of marital property - VA is an equitable distribution state
After classifying all property as either marital or separate, valuing all property, and determining that an award of marital property is warranted, the court will consider the amount of the award
The court can distribute only the parties' marital property - not their separate property
VA has no presumption favoring equal division of marital property in determining a monetary award
The court must consider all of the factors listed in the equitable distribution statute when making its award
Ultimately, the court will consider any factor that is just and appropriate when making its award, including the length of the marriage, the contributions of each spouse to the marriage, and the grounds for the divorce
The court may consider fault when distributing the property, even when the divorce is based on a no-fault separation ground, if the fault had an adverse economic effect on the identity or value of the property
The court determines the amount of any monetary award without regard to any award of maintenance and support
True
195
VA is what kind of a state?
An equitable distribution state
196
T/F After classifying all property as either marital or separate, valuing all property, and determining that an award of marital property is warranted, the court will consider the amount of the award
True
197
T/F The court can distribute only the parties' marital property - not their separate property
True
198
T/F Ultimately, the court will consider any factor that is just and appropriate when making its award, including the length of the marriage, the contributions of each spouse to the marriage, and the grounds for the divorce
True
199
T/F The court may consider fault when distributing the property, even when the divorce is based on a no-fault separation ground, if the fault had an adverse economic effect on the identity or value of the property
True
200
T/F VA has no presumption favoring equal division of marital property in determining a monetary award
True
201
T/F The court determines the amount of any monetary award without regard to any award of maintenance and support
True
202
T/F VA does not recognize a presumption in favor of the mother in awarding custody
True
203
Best interests of child (Phil)
Child's condition and needs
Parent's condition
Existing parent-child relationship
Child's preference
Phil's best interests
204
The separation must be coupled with an intention of at least one of the parties to
Live separate and part permanently and this intention must be shown to have existed at the beginning of the uninterrupted one year relied on for the divorce ground
205
Generally, isolated acts of sexual intercourse, without any intent to reconcile, do not constitute
Resumption of marital cohabitation
206
A legal parent has a duty to support a child
Under age 18
207
T/F The children of valid marriages are marital children, which means the husband of a married woman is presumed to be the biological father of a child born during the marriage. This is a strong presumption, but can be overcome if sufficient evidence is presented. The standard of proof in any action to establish parentage is clear and convincing evidence. All relevant evidence on the issue of paternity is admissible
[Harvey is Harvey Jr.'s legal father, and Harvey has a duty to support Harvey Jr. unless and until a court declares that he is not the child's legal father]
[Harvey could attempt to challenge his status as Jr.'s father by asking the court to make a paternity determination. The best evidence would be a reliable DNA test, but this test would still only be one of many factors for the fact finder to consider]
[Other factors include the fact that Harvey and Wilma openly cohabitated and engaged in sexual intercourse during the probable time that Jr. was conceived. Harvey has lived with the child most his life and has held himself out as Jr.'s father. Jr uses Harvey's first and last names, and Harvey likely claimed the child on his taxes]
[Also, its worth noting that courts are reluctant to leave a child w/o financial support, so Harvey might be well-advised to include the running back in the paternity action]
True
208
The children of valid marriages are marital children, which means
The husband of a married woman is presumed to be the biological father of a child born during the marriage
This is a strong presumption, but can be overcome if sufficient evidence is presented
209
The children of valid marriages are marital children, which means the husband of a married woman is presumed to be the biological father of a child born during the marriage. This is a strong presumption, but can be overcome if
Sufficient evidence is presented
210
The standard of proof in any action to establish parentage is
Clear and convincing evidence
All relevant evidence on the issue of paternity is admissible
211
T/F All relevant evidence on the issue of paternity is admissible
True
212
T/F The CC has jurisdiction over suits for divorce, annulment, or affirmation of marriage
True
213
T/F A divorce action is not maintainable in VA unless one of the parties is and has been an actual bona fide resident and domiciliary of the Commonwealth for at least six months preceding the commencement of the suit
The preferred venue for a divorce in VA lies:
1) Where the parties last cohabitated
2) On the option of the P, at the place where the D resides if it is in the state; or
3) In cases in which an order of publication may be issued against the D, where the P resides
[Here, both parties are VA residents and both are domiciled in \the Commonwealth. The parties last cohabitated in Charlottesville, as it is the location where they last lived together with more or less permanency. Furthermore, Wilma presently resides in Charlottesville, so Harvey could also file in Charlottesville on grounds that it is the place where the D resides]
True
214
A divorce action is not maintainable in VA unless
One of the parties is and has been an actual bona fide resident and domiciliary of the Commonwealth for at least six months preceding the commencement of the suit
215
The preferred venue for a divorce in VA lies:
1) Where the parties last cohabitated
2) On the option of the P, at the place where the D resides if it is in the state; or
3) In cases in which an order of publication may be issued against the D, where the P resides
216
Professional goodwill is considered
Marital property subject to division upon divorce
217
Is professional goodwill considered marital property subject to division upon divorce?
Yes
218
A premarital agreement's invalidity must be proved by
Clear and convincing evidence
219
Premarital agreements must provide
Fair and reasonable disclosure of financial status, including income, assets, and liabilities of all parties
Absent adequate disclosure, a court will generally refuse to enforce the agreement
220
The parties must enter into a premarital agreement
Voluntarily (i.e. free of fraud, duress, or misrepresentation)
221
In making the determination whether the premarital agreement was voluntary, courts consider factors such as
Time pressure
222
A party's insistence on the agreement to a premarital agreement as a condition to marriage is not considered
Duress
223
Is a party's insistence on the agreement to a premarital agreement as a condition to marriage considered duress?
No
224
T/F Under Virginia law, stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage
True
225
Are stock options acquired during the marriage marital property even if they will not be exercised until after marriage?
Yes, under VA law, stock options acquired during the marriage are marital property even if they will not be exercised during the marriage
226
A birth parent may revoke consent prior to the issuance of the final adoption decree in two situations:
(i) The consent was obtained by fraud or duress, or
(ii) The birth parents and the adoptive parents or the agency agree in writing that the consent may be revoked
227
T/F In Virginia, a non-parent requesting visitation in opposition to both of the child’s parents (at least one of whom is fit), or the sole surviving fit parent, must show by clear and convincing evidence that the denial of visitation would cause actual harm to the child
[Since, in the face of the opposition of Camila’s sole surviving parent, the paternal grandparents cannot show that visitation would cause actual harm to their grandson, they should be denied visitation]
True
228
In Virginia, a non-parent requesting visitation in opposition to both of the child's parents (at least one of whom is fit), or the sole surviving fit parent, must show by ________ that the denial of visitation would cause ________
Clear and convincing evidence; actual harm to the child
229
T/F Where, as here, both fit parents, object to an order granting a right of visitation to Grandmother, then BEFORE the "best interest of child" test, Grandmother must prove by clear and convincing evidence that it would cause actual harm to the child's health or welfare without such visitation
If grandmother does overcome that burden, she has the burden of proving by a preponderance of the evidence whether and what visitation is in the child's best interests
True
230
T/F Although generally a non-parent cannot be granted visitation over the objection of the child’s only living parent, parental objection to visitation does not in itself preclude non-parental visitation
True
231
Parental objection to visitation does not in itself preclude non-parental visitation
True
232
TT/F In Virginia, if a non-parent can demonstrate that the denial of visitation will cause actual harm to the child by clear and convincing evidence, then the non-parent may be granted visitation if the non-parent can also demonstrate, by clear and convincing evidence, that visitation would be in the best interest of the child
True
233
T/F Here, even though visitation would be in Camila’s best interest, since the denial of visitation will not result in actual harm to her, the court should deny visitation
True
234
T/F Felony conviction of either spouse can be grounds for an annulment if (i) the felony conviction predates the marriage and (ii) the party seeking the annulment was unaware of the conviction at the time of the marriage
True
235
Felony conviction of either spouse can be grounds for an annulment if
1) The felony conviction **predates** the marriage, and
2) The party seeking the annulment was **unaware** of the conviction at the time of the marriage
236
Irreconcilable differences is/is not a ground for divorce in VA
Is not
237
T/F The increase in value of separate property (residence) is marital property to the extent that marital funds (joint account) increased the value of the property
True
238
T/F Implicit in a grant of joint legal custody is a right to visitation, even i the order did not so provide
True
239
T/F A criminal conviction does not revoke a previous custody order nor the right to visitation, unless it is determined at trial that it is not in the child's best interests
[Unlikely result given Archie's active and positive contacts with Junior]
True
240
Will a criminal conviction revoke a previous custody/visitation order?
No , unless it is determined at trial that it is not in the child's best interests
241
If any party wishes to appeal the decision of the J&DR Court judge, to what court should the appeal be taken?
The appeal from the decision of the JD&R Court judge should be taken to the Circuit Court in the same jurisdiction
242
An ex parte divorce is
In rem
243
A court has in rem jurisdiction if
One of the parties was a bona fide resident of the Commonwealth at the time she filed her suit, and had been for at least six months prior and due process notice or constructive service is given to the absent defendant
Thus the absent D and the state of the marital domicile are not estopped from subsequently questioning the jurisdiction of the divorcing court in the ex parte proceeding
244
T/F Although in rem jurisdiction is sufficient to obtain a divorce, in personam jurisdiction generally is required to create, modify, or extinguish any support or property rights on divorce
Exception: Even if a VA court does not have PJ over the D in an ex parte divorce, the court may adjudicate both parties' rights to marital property located within VA. However, without PJ over the parties, the court cannot order a sale or transfer of the marital property
True
245
In contrast to divorce, spousal support is an ________ right
In personam
[Harry may object to the order regarding spousal support because (in contrast to the divorce) spousal support is an in personam right, the court did not have personal jurisdiction over Harry, and thus, the judgment is void ab initio]
246
Personal rights, which include spousal support rights in divorce cases, may not be adjudicated by a VA court lacking in personam jurisdiction
True
[The mere fact of that Harry is married to Wanda, and she is now a VA domiciliary, was not sufficient to give the court jurisdiction over Harry's person, as the Commonwealth was never the marital domicile]
[Moreover, the separation agreement also does not confer in personam jurisdiction, because it was not executed in the Commonwealth, and Harry was not personally served in any event]
247
T/F In rem jurisdiction may be sufficient to obtain a divorce
True
248
In personam jurisdiction is generally required to
Create, modify or extinguish any support or property rights on divorce; this is sometimes called a divisible divorce
249
A VA court has the authority to make an award regarding property rights and support payments only if has
PJ over both parties
250
A VA court may obtain PJ over a nonresident D in a divorce action through the VA long arm statute in the following ways:
1) If a party executed an agreement in the Commonwealth that obligates him to pay spousal support or child support to the VA domiciliary, but the D must be served in person
2) IF a party has been ordered to pay support pursuant to an order entered by a court of competent jurisdiction in the Commonwealth having an in personam jurisdiction over the payor
3) If a person maintained a matrimonial domicile in VA and certain other requirements are met, including that D is served in person; or
4) IF the D conceived or fathered a child in the Commonwealth
[Here, the court never obtained PJ over Harry. There is no evidence Harry evn set food in VA until after the court isued its decrees. Harry never field an answer or appeared in open court during divorce proceedings. Harry wasn't even aware about the divorce and the $300 spousal support payments until his recent encounter with Wanda's sister]
[Also, VA cannot reach Harry through its long arm statute. Although the parties executed (or at least attempted to execute) a SA, the agreement was executed in San Diego, and it did not obligate Harry to pay spousal support to Wanda. Further, there was no basis for long arm jurisdiction over Harry, and Harry was not served with process'
[Thus, Harry should object to the order based on the fact that the VA court never obtained pJ over his person and, as such, the order requiring him to pay spousal support was void ab initio]
251
T/F Agreements entered between spouses prior to, during, or after the marriage that are otherwise valid as Ks will be recognized and enforceable in VA
True
252
T/F With few narrow exceptions, marital settlement agreements must be in writing
As with other Ks, if a settlement agreement is unconscionable or was entered into under duress or bc of fraud, it is void
True
253
T/F Harry can bring a claim for breach or specific enforcement in the Norfolk CC. Assuming he files the case and serves Wanda appropriately, the court will likely uphold the agreement as a K and enforce the provision entitling Harry to sopusal support paid by Wanda
True
