Divorce

Question 1

What court has subject matter jurisdiction over divorce proceedings?

Answer 1

Circuit Court

Question 2

What is required for Virginia courts to exercise jurisdiction?

Answer 2

In rem–(1) One of the spouses is a Virginia domiciliary and (2) has been a bona fide resident of Virginia for at least six months
* If seeking collateral remedies, court needs PJ over the other spouse (divisible divorce)

Question 3

Where is Venue Proper?

Answer 3

• Preferred venue rules–if you file in venue not preferred, court can transfer to preferred venue on request of either party or on its own motion
• Preferred venues are: (1) where couple lived; (2) where D lives; (3) if D is out of state where P lives

Question 4

Types of Divorce

Answer 4

(1) Divorce a Mensa et Thoro –legal separation
* Personal and property rights of each party are protected
* Neither party may marry during the life of the other

(2) Divorce a Vinculo Matrimonii – absolute divorce

Question 5

What are the fault-based grounds for divorce?

Answer 5

(1) Adultery, Sodomy, or Buggery
* Requires clear and convincing evidence, and no waiting period required

(2) Felony conviction that results in prison sentence of more than one year

(3) Desertion (info in another card)

(4) Physical Cruelty
* Any behavior that poses a danger to the life or health of the other spouse

(5) Mental Cruelty
* Must endanger life or health of other spouse
* Strictly construed, and generally requires psychological abuse (and continuouis/repetitive pattern of conduct)

Question 6

What does a showing of desertion require?

Answer 6

• Absence from marital home without justification for more than one continuous year–separation by mutual consent insufficient
• Constructive desertion–when one spouse’s cruelty forces the other to leave the marital home OR willful neglect of marital duties

Question 7

What is condonation?

Answer 7

• Affirmative defense to fault-based divorce
• Requires knowledge, forgiveness, and resumption of cohabitation, and in effect waives any wrongdoing
• This is conditional on wrongdoer not committing offense again

Question 8

What is connivance?

Answer 8

Analogous to entrapment in criminal law–petitioning spouse lured D spouse into alleged misconduct

Question 9

What is recrimination?

Answer 9

Where complaining spouse is guilty of a similar offense that constitutes a fault-based ground for divorce of the same degree
* Effect is that neither party receives fault-based divorce

Question 10

What is the relevant sattute of limitations for fault-based divorce

Answer 10

Only one is adultery, sodomy, or buggery, and it is five years

Question 11

How must a plaintiff show the defendant’s fault?

Answer 11

Through corroboration
* P’s uncorroborated testimony is not sufficient; however, courts will accept fairly minimal corroboration if no reason to suspect collusion

Question 12

When can a no-fault divorce be granted?

Answer 12

(1) If:
* (a) both parties agree (b) there are no children and (c) they negotiate a separation agreement that resolves collateral economic issues
* If these conditions are met must live separate and apart for six months

(2) If any condition missing, must live separate and apart for one full year
* Watch for conduct indicative of fault during this time because they are still married

Question 13

What are the grounds for divorce a mensa et thoro

Answer 13

• Curelty or reasonable apprehension of bodily harm (i.e., anything that tends to cause harm and renders cohabitation unsafe)
• Abandonment or Desertion–no time period, but intent to desert and breaking off of cohabitation are necessary
• Parties are not precluded from later seeking a divorce a vinculo matrimonii and after one year either spouse can motion court to merge decree if reconcilliation has not taken place and separation continued without interuption