divorce Flashcards
Jurisdiction and venue for divorce, annulment, and affirmation of marriage claims
JURISDICTION
[1] Chancery side of the circuit court
[NOT JDR]
AND
[2] one spouse is VA domiciliary and has been a bona fide resident of VA for at least 6 months**
** for collateral remedies like alimony, property division, etc. you need PJ over both spouses [“divisible divorce”]
VENUE
Preferred venues
(1) where couple lived
(2) where D lives
(3) if D is out of state, where P lives
– if P choses a venue that is not preferred, the case can go forward in that venue as long as a party does not object or as long as the court does not choose to transfer
bilateral vs. ex parte divorce
BILATERAL
Either:
(a) physical presence of both parties before the court
or
(b) physical presence of one party and voluntary general appearance of the other
EX PARTE
only P is physically present and D is given due process notice or constructive service
rule of “no default divorce”
if D fails to appear within 21 days of service, P must submit evidence so that a record of the grounds for divorce is before the trial judge e
divorce and annulment cannot be resolved by default
Virginia long-arm statute for divorce
A Virginia court may obtain personal jurisdiction over a nonresident defendant through use of the long arm statute.
types of divorce in VA
(1) divorce a mensa et toro [bed and board]
- personal and property rights protected
- neither party may marry
– people want to keep marital relationship intact while being able to not be called a deserter
– when you want a judicial adjudication of collateral matters without ending marriage
(3) divorce a vinculo matrimonii [absolute divorce]
- extinguishes right of survivorship
- estates become T in C
Grounds for obtaining a fault based divorce [vinculo a matrimonii]
(1) adultery, sodomy, or buggery committed outside of marriage
- clear and convincing evidence [since adultery is a crime]
- no waiting period
(2) felony conviction that results in prison sentence of > one year
(3) desertion
– absence from marital home without justification for more than one continuous years
[not mere separation by consent]
– constructive desertion [cruelty forces spouse to leave the marital home]
– willful neglect of marital duties [even if both spouses live together]
– no need to show offer of reconciliation
(4) physical cruelty
– behavior poses danger to life or health of other spouse
(5) mental cruelty
– if endangers life or health of other spouse
– psychological abuse = repetitive conduct / pattern
defenses to fault based divorce
(1) condonation = knowledge, forgiveness, resumption
– innocent spouse was aware of the conduct, forgave it, and resumed cohabitation, AND, guilty spouse indicates repentance and reform
(2) connivance
– spouse petitioning for divorce lured spouse into the misconduct
(3) recrimination
– complaining spouse is guilty of similar offense
(4) SOL for adultery, sodomy or buggery = 5 years since the act
(5) uncorroborated
– P’s uncorroborated testimony is not enough, but courts will accept very minimal corroboration usually
what happens when multiple grounds for divorce exist
trial court has discretion to select the grounds upon which the divorce will be granted.
how to obtain a no-fault divorce [absolute/vinculo a matrimonii]
METHOD 1
IF:
(a) both parties agree that they would like to end the marriage
(b) no children
(c) they can negotiate a separation agreement that resolves the collateral economic issues
THEN they can get a divorce if they separate and live apart for 6 months
METHOD 2
live separate and apart for one full year
[if you can’t meet all three A,B,C conditions]
modification of divorce grounds
A party who asked for a divorce based on a fault ground can, by motion, request a no-fault separation divorce after the requisite statutory waiting period.
grounds for seeking divorce a Mensa et thoro
(1) cruelty or reasonable apprehension of bodily harm
- tends to cause harm, makes cohabitation unsafe
- danger to life, and health
- usually involves successive acts but one act may be sufficient
(2) abandonment or desertion
- intent to desert and actual breaking off of matrimonial cohabitation without justification
- it is not abandonment when there is consent or when the other is filing divorce
** if parties reconcile, they can revoke the divorce decree
how to get absolute divorce after getting Mensa et thoro
(1) you cannot rely on ground they knew about before the decree of Mensa et thoro
(2) motion court to merge a decree of divorce a Mensa et thoro into a vinculo if reconciliation has not taken place and separation continued without interruption
– may take place after 6 months if there is
(a) separation agreement
and
(b) no children
