Conflict of Laws

Question 1

What law should be applied to determine intestate succession of personal property?

Answer 1

Domicile of the decedent

Question 2

How do you determine which state gets estate taxes upon the estate holder’s death?

Answer 2

Whatever state the decedent was domiciled in

Question 3

In a divorce, which state has subject matter jurisdiction?

Answer 3

The state of domicile (for the moving party)

Question 4

What is required for a state to be someone’s domicile?

Answer 4

The person must have:

• Legal capacity (i.e., ability to fend for themself) when making the domicile choice
• Physical presence in the state
• The intent to remain in the state indefinitely

Question 5

In determining a person’s domicile, what is the rule when a person’s words are different than his actions with respect to their intent?

Answer 5

Actions speak louder than words

Question 6

How many domiciles can a person have?

Answer 6

Only one

Question 7

What happens if a person does not have legal capacity to acquire a domicile of choice?

Answer 7

The person will be assigned domicile by operation of law, which will be:

• Any domicile acquired before becoming mentally incompetent
• The domicile of the person’s parents or guardians
  
  • If the parents are divorced:
    
    • Use the custodial parent that as primary residence with the child

Question 8

What is the state that hands down a judgment called?

What about the state that is called upon to recognize and enforce that judgment?

Answer 8

Rendering state

Recognizing state (i.e., forum state)

Question 9

When should the judgment of a sister state be recognized and enforced?

Answer 9

When the sister state judgment is entitled to full faith and credit, which requires:

1. Valid jurisdiction in the rendering court over both:
   
   • Parties (PJ)
   • Subject matter (SMJ)
2. Final judgment
3. Judgment on the merits

Question 10

When can a defendant argue that the judgment of a sister court should not be recognized because it lacked jurisdiction?

Answer 10

Only if doing so would not violate the one-attack rule, which prohibits litigating jurisdiction more than once

So, a court’s jurisdiction can only be attacked once - either in the rendering court or the recognizing court, but not both

Question 11

When is a judgment not final?

What are examples of such judgments?

What is an example of a final judgment?

Answer 11

When the judgment was modifiable

Non-final judgments:

1. Future spousal support
2. Future child support

Final judgment:

• Judgments (even relating to spousal or child support) for amounts already accrued and in arrears

Question 12

What are considered judgments on the merits for full faith and credit purposes?

What are not judgments on the merits?

Answer 12

Judgments on the merits

1. Default judgments
2. Consent judgments

Not judgments on the merits

• Judgments based on a statute of limitations

Question 13

What law controls the three full faith and credit requirements (i.e., valid jurisdiction, final judgment, on the merits)?

Answer 13

The law of the rendering state

Question 14

What are the defenses/escape devices used to avoid recognition of a sister state judgment?

Split them between good defenses and non-defenses

Answer 14

Good defenses

1. Procedure v. substance
   
   • The forum state will not enforce judgments based on matters of procedure - they are governed by the law of the forum state
2. Penal laws
   
   • The forum state will not enforce the penal laws of another state (i.e., laws designed to vindicate the public justice, rather than provide reparation to an individual)
3. Extrinsic fraud
   
   • The forum state will not enforce judgments that involve extrinsic fraud - i.e., fraud that could not have been dealt with in the earlier decision
     
     • E.g., judge was bribed

Non-Defenses

1. Public policy
   
   • The forum state will not enforce a judgment that violates its strong public policy - i.e., something more than mere conflicting laws
2. Mistakes by the judge
   
   • This won’t work because it should have been raised on appeal in the recognizing state
3. Inconsistent judgments
   
   • If two different states entered two different judgments, either can be enforced by the forum
   • Exception: SCOTUS decision are enforced based on whichever one is most recent

Question 15

Can judgments of foreign countries be enforced in the US?

Answer 15

Yes, provided the two-part comity test is satisfied:

1. Jurisdiction must have been proper
2. Fair procedures must have been applied

This test is applied using the forum state’s law, which means that the forum state’s ideas of due process (i.e., fundamental fairness and minimal contacts) govern

Question 16

What is required for subject matter jurisdiction in a divorce case?

Answer 16

One of the two spouses must be domiciled in the state rendering the divorce

Question 17

What are the different types of divorce?

Answer 17

1. Ex-parte
   
   • Only one of the spouses is validly domiciled where the divorce is granted
2. Bi-lateral
   
   • Only one of the spouses is validly domiciled where the divorce is granted, but both are subject to personal jurisdiction there
3. Consent
   
   • Both spouses want out of the marriage and go somewhere they are domiciled to get the divorce

Question 18

What is the burden of proof in attacking a divorce, and who bears it?

Answer 18

The attacker bears the burden and can introduce any relevant evidence, even if it came into existence after the divorce was granted

Question 19

Who can attack a divorce for lack of subject matter jurisdiction?

Answer 19

Any interested person who is not estopped from doing so

Estoppel situations:

1. Attacker was subject to personal jurisdiction in the earlier divorce proceeding
   
   • E.g., attacker was the spouse in a bi-lateral divorceproceeding
2. Attacker played a meaningful role in the earlier divorce proceeding
   
   • E.g., attacker bought spouse’s plane ticket so she could go to Vegas to get a divorce
3. Attacker is in privity with a party to the divorce
   
   • E.g., children
4. Attacker has remarried in reliance on the earlier divorce

Question 20

Who does a court granting alimony or child support have to have personal jurisdiction over?

Answer 20

The spouse whose property rights are at issue - e.g., the spouse and/or the child

Question 21

Who does a court granting child custody have to have personal jurisdiction over?

Answer 21

The child (i.e., court must be in the child’s home state)

Question 22

What is the divisible divorce doctrine?

Answer 22

If a divorce decree has some valid portions and some invalid portions, simply retain the valid and ignore the rest

E.g., the divorce may be valid due to personal jurisdiction over one spouse, but the alimony and child support may not be

Question 23

Do federal and state courts have to recognize one another’s judgments?

Answer 23

Yes, this is required by statute

Question 24

How do you determine whether it is appropriate to choose a particular state’s law in a case?

Answer 24

The state chosen must have:

1. Significant contact with the parties of subject matter
2. Giving it a legitimate interest in seeing its law applied

Question 25

When choosing a particular state’s law to apply, what do you do if another state may have a stronger interest?

Answer 25

As long as the state chosen meets the contact-legitimate interest requirement, no weighing is required, even if another state may have a stronger interest

Question 26

What are two situations where a state would not meet the significant contact-leigitimate interest test for choice of law?

Answer 26

1. After the event in question a party moved to the state and that move created the only contact with the state
2. The only contact with the parties is that the suit was brought in the state

Question 27

What are the different choice of law approaches?

Answer 27

1. Vested rights approach (1st Restatement & Virginia)
2. Most significant relationship approach (2d Restatement)
3. Governmental interest analysis approach

Question 28

What is the vested rights approach to choice of law?

What is the process?

Answer 28

The law to be applied is the law where the rights of the plaintiff vested and each the law had a rule to answer this

Process:

1. What is the substantive area of law to be applied?
   
   • E.g., torts contracts property, family law, etc.
2. What is the vesting rule for that area of law?
3. Apply the vesting rule
4. State the result

Question 29

What is the vesting rule for tort law?

Answer 29

1. Does the legal issue in question involve a rule regulating loss distribution or conduct?
2. If a rule regulating conduct:
   
   • Apply the law of the place of the conduct
3. If a rule regulating loss distribution:
   
   • Apply the law of the place of the wrong
     
     • This is not necessarily the place of negligence, it may be the place of the injury

Question 30

What is the vesting rule for contract law?

Answer 30

1. Did the parties validly choose the law to be applied in the contract?
   
   • Any law can be chosen for contract construction
   • For contract validity:
     
     • Choice cannot be contrary to fundamental policy of a state with a greater interest
     • Must be substantial relationship between the parties or the transaction and the state chosen
2. If not, ask:
   
   • Does the issue fall under the control of the UCC?
     
     • Apply the forum law assuming it has a sufficient relationship to the transaction
   • Does the issue involve contract construction?
     
     • Apply the law of the place of performance
   • Does the issue involve contract validity?
     
     • Apply the law of the place of execution
   • Does the issue involve contract performance?
     
     • Apply the law of the place of performance

Question 31

What is the vesting rule for real property law?

Answer 31

1. If the issue involves the land sale contract
   
   • _​​_Apply the vesting approach for contract law
2. If the issue involves the deed or conveyance
   
   • _​​_Apply the law of the situs - i.e., property location

Question 32

What is the vesting rule for personal property law?

Answer 32

1. If the issue involves intestacy succession
   
   • Apply the law of the deceased’s domicile at death
2. Otherwise
   
   • Apply the law of the situs - i.e., property location at time of relevant transaction

Question 33

What is the vesting rule for family law?

Answer 33

1. Would the marriage violate the strong public policy of the forum state?
   
   • If so, may not recognize the marriage even if valid
2. Otherwise
   
   • Recognize the marriage as valid

Question 34

What law governs in a divorce?

Answer 34

The law of the plaintiff’s domicile

Question 35

What happens if a marriage is void because it failed to comply with some technical requirement of the state where it was performed?

Answer 35

It may sitll be recognized if it would have complied with the forum state

Question 36

What are examples of procedural, rather than substantive, law?

Answer 36

• Burden of proof
• Statutes of limitations
  
  • Exceptions:
    
    • Borrowing statute
      
      • Forum will apply the shorter statute of limitation of the state where the cause of action arose
    • Time limit contained in statute creating right
    • Adverse possession

Question 37

What are examples of substantive, rather than procedural, laws?

Answer 37

• Contributory v. comparative negligence
• Statute of frauds
• Parol evidence rule

Question 38

What choice of law rules does a federal court sitting in diversity use?

What if a federal court transfers the case to a different venue for the convenience of the parties?

Answer 38

In general

• The choice of law rules of the state in which it sits

Transfer

• Transferee court applies law of state where transferor sits

Question 39

Do courts take judicial notice of the law of other states?

Answer 39

Yes

But the law of a foreign country is a fact that must be proven

If the law of the foreign country cannot be determined, forum state law will apply

Question 40

How would a Virginia court would address a question of capacity to contract where there is a conflict of laws issue?

Answer 40

Under the general common law rule, the law of the place of contracting determines capacity to contract.

However, there are two old Virginia cases that have not been overruled holding that the law of the place of performance governs capacity to contract if it differs from the law of the place of contracting

Question 41

A Virginia resident alleges injury in tort. Virginia is the place of the wrong, but the alleged tortfeasor acted in a second state. In which situation would a Virginia court apply the law of the second state?

Answer 41

A Virginia court will apply the law of the second state if the injury is a result of the alleged tortfeasor’s action in a state where that action was required or privileged.