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Domestic Relations Bar > Bar > Flashcards

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1
Q

ln rem JX over divorce–ct has jx to hear divorce when

A

one parties was a bona fide resident of the commonwealth at time of suit and had been for at least 6 months

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2
Q

In personam Jx over spousal support agreement

A

spousal support is an in personam right, thus, ct must have personal jx over D…IF NOT JUDGMENT IS VOID

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3
Q

Can personal rights, including spousal support rights in divorce cases, be adjudicated by VA Courts lacking PJ?

A

No

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4
Q

Spousal Support Despite Adultery

A

No spousal support may be awarded to a spouse who commits adultery UNLESS ct determines by clear and convicning evidence that denial of spousal support to guilty party would constitute a manifest injustice based on spouses’ respective degrees of fault during the marriage and their relative economic circumstances

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5
Q

Four fault grounds for divorce

A

Adultery, conviction of felony (more than 1 yr), willful desertion and cruelty

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6
Q

Adultery Ground

A

clear and convincing evidence of sexual intercourse by a married individual with any person who is not their spouse…no waiting period for divorce

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7
Q

Conviction of felony

A

1) other spouse is convicted of a felony after the marriage;
2) confinement for at least one year
3) spouses cannot continue to live together after one spouse learns of the other’s confinement.

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8
Q

Willful Desertion

A

1) deserting spouse’s intent was to end the marriage, and

2) desertion was against the wishes of the deserted spouse.

over 1 yr

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9
Q

Desertion: if both spouses agree to separate

A

neither can allege desertion later.

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10
Q

Cruelty

A

anything that tends to bodily harm and thus renders cohabitation unsafe; or, as expressed in the older decisions, that involves danger of life, limb or health.”

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11
Q

Not cruelty

A
  • Unlikely that single batter would be sufficient to constitute cruelty
  • Victim Party may condone cruelty by resuming the marital relationship/cohabitation
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12
Q

Courts Determination of Spousal Support

A

1) Whether party has committed a marital offense that would bar such an award (cruelty, adultery)

2) Physical or mental issues

3) Whether employed or not

4) Need for special training or education

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13
Q

Non contributing Spouse’s entitlement to marital residence

A

party who did not contribute towards marital residence is entitled to it if mortgage as well as household bills were paid w marital funds…joint bank accounts which both parties’ incomes were deposited

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14
Q

Marital Property? Increase in value of residence

A

Yes, to extent that marital funds increased value

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15
Q

Separation Agreement

A

Agreement btwn spouses for purpose of settling the rights and obligations of either or both of them is generally enforceable so long as it is NOT UNCONSCIONABLE

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16
Q

Is consideration required for separation agreement?

A

No, but generally the agreement, which is effective upon execution, must be IN WRITING + SIGNED BY BOTH PARTIES

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17
Q

Parties may waive spousal support if

A

party waives right to future spousal support in exchange for valuable consideration and agreement is incorporated into final divorce decree = ct should not award spousal support

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18
Q

Can you waive child support?

A

No, cannot waive child support even if waiver is supported by consideration

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19
Q

Court retains continuous jx over child support to

A

Change/modify its order relating to care and maintenance of a child

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20
Q

Can you waive custody arraignment

A

ct is not preculed by terms of an agreement to change the terms of custody and visitation in the appropriate case even over objection

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21
Q

Ct can alter upon showing

A

material change in circumstances + best interest of child

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22
Q

Do you need consideration to amend/revoke marital agreement?

A

No, enforceable w/o consideration

22
Q

How can you amend/Revoke Marital Agreement

A

only by a written agreement signed by parties

23
Q

No Fault Divorce Based on Separate and Apart for 1 yr

A

Absolute divorce may be decreed upon the application of either party if the spouses have lived separate and apart w/o any cohabitation and without interruption for one year

24
Q

Seperation Agreement + No Minor Child

A

If parties have entered into a seperation agreement and do not have a minor child, an absolute divorce may be decreed upon application by either party if the spouses have lived seperately and apart w/o cohabitation and without interruption for 6 months

25
Q

What happens if party files suit based on fault grounds and, while suit is pending, parties have satisfied the grounds for a no-fault absolute divorce

A

either party may petition ct for a no-fault absolute divorce

and may do so w/o seeking leave to amend the bill of complaint or cross bill

26
Q

Granting divorce where multiple grounds exist

A

the specific ground will be granted within the discretion of the trial ct

27
Q

At what time is the marital property’s valuation determined

A

date of evidentiary hearing on valuation

28
Q

Exception

A

Upon motion of either party showing good cause, the ct may order that a different valuation date be used

29
Q

What is considered “Separate Property”?

A

Real + Personal property acquired by a party before marriage as well as income from and the increase in value of seperate property for reasons “not attributable to the personal efforts of either party” Ex. passive appreciation in property’s value

30
Q

When increase in value of separate property constitutes marital property

A

when separate property increases in value due to personal efforts of either party or contributions of marital property, the increase will be marital property, subject to equitable distribution, if those personal efforts contributed to the increase in value, were significant, and resulted in substantial appreciation

31
Q

Personal Efforts that may increase value of separate property Include

A

labor, effort, inventiveness, physical or intellectual skill, creativity, managerial, promotional, or marketing activity directly applied to the separate property

32
Q

Only the increase in value is subject to equitable distribution, original value of property remains

A

separate property

33
Q

Non-owner spouse has burden of proof to show

A

contributions of marital property or personal effort were made and the separate property increased in value.

34
Q

Burden then shifts to owner spouse to shwo

A

the increase in property value was not caused by personal efforts or contributions of marital property.

35
Q

Fault in determining spousal support

A

Fault by either party must be considered when determining whether to award spousal support.

36
Q

Any order granting, reserving or denying a request for spousal support must be accompanied by

A

written findings and conclusions of the court identifying the statutory factors that support the court’s order and provide an explanation of its resolution of any significant underlying factual disputes.

37
Q

Income Shares Method for Child Support (adopted in VA)
The total monthly child support amount is divided between the parents in the same proportion to

A

their monthly gross incomes bear to their monthly combined gross income.

38
Q

How to calculate parent’s gross income

A

all income from all sources is considered, including spousal support.
 There is a rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines is correct.

39
Q

A court may deviate from the application of the child support guidelines only after

A

making a written finding that the application of the guidelines would be unjust or inappropriate.

40
Q

Although an amount is attributed to each parent, only the ___parent actually pays the support amount.

A

non-custodial

41
Q

Test for child visitation

A

whether child’s best interest is achieved …which supercedes right as child’s father/mother

42
Q

Implicit in Legal custody order is

A

A right to visitation with child even if the order did not so provide.

43
Q

Does criminal conviction revoke custody order or right to visitation?

A

No, unless it is determined at trial that it is not in child’s “best interests” for parent to have a right to visitation

44
Q

Granparent seeking right of visitation must prove

A

by clear and convincing evidence that it would cause actual harm to child’s health or welfare without such visitation

45
Q

If they do so, the must next prove

A

by preponderance of the evidence whether visitation would be in child’s best interest

46
Q

Premarital agreement is enforceable if

A

there was fair and reasonable disclosure of the financial situations of the parties, or a voluntary and written waiver of such disclosure, and the parties voluntarily entered into the agreement.

47
Q

Premarital agreement must be

A

in writing and signed by both parties …must not be unconscionable

48
Q

Ct has subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if Virginia

A

(i) is the child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or

(ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state. “Home state” is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding

49
Q

UCCJEA vests exclusive jx for child custody litigation in the courts of

A

a child’s home state

(the state where the child has lived with a parent or person filling the role of a parent for 6 consecutive months prior to the commencement of the first custody proceeding).

50
Q

Primacy of Parent-CHild relationship

A

Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,”

51
Q

For a 3rd person (not parent) to get custody of a child, they must show

A

clear and convincing evidence that best interest of child warrants it

52
Q

After proving such, 3rd party must prove by clear and convincing

A

evidence circumstances that rebut the legal presumption in favor of natural parents, INCLUDING parental unfitness

Domestic Relations Bar (1 decks)

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