divorce

Question 1

jurisdiction and venue

Answer 1

divisible divorce: va courts can grant a divorce when one of the spouses is a Virginia domicilliary and has been a bona fid resident for at least six months

if divorcing spouse wants any collateral remedies (alimony or property division) then court need personal jurisdiction

Question 2

bilateral v. ex parte

Answer 2

bilateral: based on the phyiscal presence of both parties before the court or the phyiscal presence of the p and voluntary general appearence by the d
ex parte: p is physically present and the d is given due process notice or constructive service

Question 3

no default divorce

Answer 3

if defendant fails to appear within 21 days of service, the plaintiff must submit evidence that a proper record of the grounds for divorce is before the trial judge

Question 4

Venue

Answer 4

preferred venue rules (start at first then if thats not satisfied go to second)

-where the couple lived

where d lives

if the d is out of state, where the p lives

Question 5

types of divorce

Answer 5

divorce a mensa et thoro: divorce from bed and board-legal seperation
used when the parties want judicial permission to live apart without being found to be a deserter and want a judicial adjudication of collateral matters

divorce a vinculo matrimonii (absolute divorce)5

Question 6

Fault based grounds for divorce a vinculo martimonii

Answer 6

adultery, sodomy, buggery: evidence clear and convincing–statute of limitations: 5 years

felony conviction (after marriage) if felony is a year or more

desertion: absence from marital home without justification for more than one continous year (must be continous cant tack together pools of time)
separation by mutual consent or in anticipation of a divorce is not unjustified absence

constructive desertion: cruelty forces the other spouse to leave the martial home or willful neglect of marital duties

physical cruelty: any behavior that poses a danger to the life or health of the other spouse.

mental cruelty: grounds if it endangers the life or health of the other spouse–pretty strict requires psychological abuse no just being mean, usually require continous or reptitives pattern of conduct

Question 7

affirmative defenses to fault based divorce

Answer 7

condonation: forgiveness waives the right of divorce for that offense. requires showing that the innocent spouse was aware of the other spouses misconduct, forgave the misconduct, and resumed cohabitation. knowledge, forgiveness, resumption. predicated on the wrongdoer not wrongdoing again

Connivance: the defense of connivance is similar to entrapment. petitioning spouse lured the defending spouse into the alleged misconduct.

recrimination; unclean hands. complaining spouse guilty of similar offense. neither gets fault based divorce

Question 8

no fault based grounds

Answer 8

can be granted if:
both parties agree that they would like to end the marriage
there are no children and
they can negotiate a separation agreement that resolves the collateral economic issue

if one of those conditions is missing, the couple can still obtain a no fault divorce, but they need to live separate and apart for one full year

Question 9

grounds for divorce a mensa et thoro

Answer 9

cruelty or reasonable apprehension of bodily harm-single act can be enough but usually consists of successive act

abandonment or desertion: no time period is specifid, but intent and actual breaking of matrimonial cohabitation