Bar Flashcards
ln rem JX over divorce–ct has jx to hear divorce when
one parties was a bona fide resident of the commonwealth at time of suit and had been for at least 6 months
In personam Jx over spousal support agreement
spousal support is an in personam right, thus, ct must have personal jx over D…IF NOT JUDGMENT IS VOID
Can personal rights, including spousal support rights in divorce cases, be adjudicated by VA Courts lacking PJ?
No
Spousal Support Despite Adultery
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
Four fault grounds for divorce
Adultery, conviction of felony (more than 1 yr), willful desertion and cruelty
Adultery Ground
clear and convincing evidence of sexual intercourse by a married individual with any person who is not their spouse…no waiting period for divorce
Conviction of felony
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.
Willful Desertion
1) deserting spouse’s intent was to end the marriage, and
2) desertion was against the wishes of the deserted spouse.
over 1 yr
Desertion: if both spouses agree to separate
neither can allege desertion later.
Cruelty
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.”
Not cruelty
- Unlikely that single batter would be sufficient to constitute cruelty
- Victim Party may condone cruelty by resuming the marital relationship/cohabitation
Courts Determination of Spousal Support
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
Non contributing Spouse’s entitled to marital residence if
mortgage as well as household bills were paid w marital funds…
joint bank accounts which both parties’ incomes were deposited
Marital Property? Increase in value of residence
Yes, to extent that marital funds increased value
Separation Agreement (Property and Settlement Agreement) is generally enforceable so long as
it is NOT UNCONSCIONABLE
Is consideration required for separation agreement?
No, but generally the agreement, which is effective upon execution, must be IN WRITING + SIGNED BY BOTH PARTIES
Parties may waive spousal support if
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
Can you waive child support?
No, cannot waive child support even if waiver is supported by consideration
Court retains continuous jx over child support to
Change/modify its order relating to care and maintenance of a child
Is Court precluded from changing terms of custody and visitation agreement?
ct is not preculed by terms of an agreement to change the terms of custody and visitation in the appropriate case even over objection
Ct can alter child support agreement upon showing of
material change in circumstances + best interest of child
Do you need consideration to amend/revoke marital agreement?
No, enforceable w/o consideration
How can you amend/Revoke Marital Agreement
only by a written agreement signed by parties
No Fault Divorce Based on Separate and Apart
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…
Seperation Agreement + No Minor Child
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
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
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
Granting divorce where multiple grounds exist
the specific ground will be granted within the discretion of the trial ct
At what time is the marital property’s valuation determined
date of evidentiary hearing on valuation
Valuation of marital property can be changed upon motion of either party showing
good cause,
the ct may order that a different valuation date be used
What is considered “Separate Property”?
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
When dpes an increase in value of separate property constitute marital property
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
Personal Efforts that may increase value of separate property Include
labor, effort, inventiveness, physical or intellectual skill, creativity, managerial, promotional, or marketing activity directly applied to the separate property
Only the increase in value of seperate property is subject to equitable distribution, original value of property remains
separate property
In marital property dispute, to assert right to marital property, non owner spouse has burden of proof to show
contributions of marital property or personal effort were made and the separate property increased in value.
Burden then shifts to owner spouse to shwo
the increase in property value was not caused by personal efforts or contributions of marital property.
Fault in determining spousal support
Fault by either party must be considered when determining whether to award spousal support.
Any order granting, reserving or denying a request for spousal support must be accompanied by
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.
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
their monthly gross incomes bear to their monthly combined gross income.
What income is used to calculate parent’s gross income
all income from all sources is considered, including spousal support.
A court may deviate from the application of the child support guidelines only after
making a written finding that the application of the guidelines would be unjust or inappropriate.
Although an amount is attributed to each parent, only the ___parent actually pays the support amount.
non-custodial
Test for child visitation
whether child’s best interest is achieved …which supercedes right as child’s father/mother
Implicit in Legal custody order is
A right to visitation with child even if the order did not so provide.
Does a criminal conviction revoke custody order or right to visitation?
No, unless it is determined at trial that it is not in child’s “best interests” for parent to have a right to visitation
Granparent seeking right of visitation must prove
by clear and convincing evidence that it would cause actual harm to child’s health or welfare without such visitation
If grandparent proves first step for visitation, they must next prove
by preponderance of the evidence whether visitation would be in child’s best interest
Premarital agreement is enforceable if
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.
Premarital agreement must be
in writing and signed by both parties …must not be unconscionable
Ct has subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if Virginia
(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
UCCJEA vests exclusive jx for child custody litigation in the courts of
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).
Primacy of Parent-CHild relationship
Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,”
For a 3rd person (not parent) to get custody of a child, they must show
have a legitimate interest to obtain custody and prove by clear and convincing evidence that best interest of child warrants it and that one of the five factors to rebut primacy of parent child relationship are present
After proving such, 3rd party must prove by clear and convincing
evidence circumstances that rebut the legal presumption in favor of natural parents, INCLUDING parental unfitness
Constructive desertion
D’s conduct is so egregious as to warrant leaving marital home / willful neglect of marital duties
Recrimination can be a defense to
All grounds for divorce
Cruelty includes
physical cruelty, mental cruelty or a combo of either that endangers life or health of another
Condonation defense is defeated where
offending party repeats same behavior after victim resumes cohabitation
In determining spousal support, Cts will consider
parties’ relative degree of fault, education, financial status, mental +physical condition, length of marriage, other party’s ability to pay support
Ct may distribute marital property so long as
ct has jx to dissolve marriage based on fault or no fault grounds
Court will distribute marital property so long as property is not
separate property….doesnt matter that spouse did not contribute to purchasing property so long as such property isnt separate property
Arrearages will be assessed for
Payor has not paid support according to ct ordered awards or for K obligations as parties have agreed and reduced to writing
Factors Cts consider in altering spousal support
significant hardship on party and material change in circumstances if support has been duly incorporated into divorce decree
Separate and apart for a year, at least one spouse must
have intent to terminate the marriage
UCCJEA also establishes a process for determining
which ct has jx in event that another state might be a more appropriate forum (due to termination of connections w the former home state or when there is no home state) and institutes uniform procedures to enforce child-custody orders across state lines
five factors rebutting primacy of parent-child relationship
1) parental unfitness
2) previous order of divestiture
3) voluntary relinquishment,
4) abandonment
5) special facts and circumstances constituting an extraordinary reason for taking a child from its parent.
What happens where COurt enters judgment where they dont have personal jurisidiction over D
judgment is void
A person may marry after turnin 18 or being declared an
emancipated minor
Birth parent may revoke adoption when
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.
