Domestic Rel. Flashcards
Virginia courts can modify spousal support orders to
increase, decrease, or terminate payment, as the circumstances may make proper, unless the parties contracted otherwise.
when a court modifies a spousal support order, the decree operates
prospectively
To justify a change in spousal support, the court must find an
(i) involuntary and unforeseen, (ii) material change in the parties’ circumstances.
an equity court would need to weigh the evidence to decide whether either party’s change in circumstances warrants
a change—increase or decrease—in the original spousal support award.
Like spousal support awards, child support awards, visitation, and custody agreements can be modified by the issuing court or another court with jurisdiction upon a showing of
a material change in circumstances that was neither voluntary nor foreseeable.
On a parent’s petition, its own petition, or petition of a probation officer or Department of Social Services, the court can modify or make a new decree when
the parents’ circumstances and interests of the children require.
As when granting an original child support award, a Virginia 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 based on the relevant evidence of the particular case based upon enumerated statutory factors.
statutory factors for departing from child support guidelines include:
(i) the special needs of the child resulting from any physical, emotional, or medical condition, (ii) the standard of living the child enjoyed during the marriage, and (iii) the earning capacity, obligations, financial resources, and special needs of each parent.
Willful failure to pay support for a child or spouse is a
criminal misdemeanor.
Upon conviction of failure to pay child support of spousal, the person may be
fined (not exceeding $500), confined in jail not exceeding twelve months, or both.
The purpose of criminal contempt is
to punish an obligor for willful default of the obligations imposed by the court.
In Virginia, judges may issue attachments for contempt, and punish them summarily, for
disobedience of any person to any lawful process, judgment, decree or order of the court, including support awards.
The “best interests of the child” standard governs
awards of custody.
It would be in the best interests of the child to promote
stability and a familiar environment.
court should subordinate childs stated preference to live with a parent to
other factors affecting his welfare.
A parent’s immoral conduct, like adultery, will not affect custody unless
a nexus exists to the child’s well-being.
in determining custody of a child a parents “unmarried” status with a partner
should not affect the court’s custody ruling.
for custody court looks to childs
age, physical and mental condition, and changing developmental needs
for custody court looks to parents
ages and physical and mental condition
Fault by either party must be considered (felony conviction, adultery, desertion, or cruelty) by a Virginia court determining whether
to award spousal support.
No spousal support may be awarded to a spouse who commits adultery, unless
the court determines from clear and convincing evidence that
denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault (payor’s fault) and their relative economic circumstances (extreme economic disparity).
Marital property is any property that
comes into the marriage unit during the marriage itself
passive appreciation from investments is considered separate property if
the value has increased solely due to the passage of time and market forces.
Because Howard has put assets into his pension over the course of the marriage from his wages and employer matching
this was an active investment which will be split between Howard and Wendy.
Upon divorce, each spouse takes their own separate property, which is:
property acquired prior to the marriage, property acquired after the separation, property inherited by the individual, and passive appreciation from investments.
Virginia courts do not presume an even 50/50 distribution of marital assets and instead
may consider any factor that would be just and reasonable.
The court will award alimony based on need and will generally consider the following factors in making this determination:
earning capacity, education, financial resources, and any other relevant factors.
No spousal support may be awarded to a spouse who commits adultery unless
the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
Under Virginia law, a premarital agreement is enforceable if
1) there was fair and reasonable disclosure of the financial situations of the parties,
2) or a voluntary and written waiver of such disclosure,
3) and the parties voluntarily entered into the agreement.
a premarital agreement must be
1) in writing and
2) signed by both parties and
3) must not be unconscionable
Conditioning the marriage on entering into a premarital agreement
does not constitute duress so as to make the agreement involuntary.
there is no requirement that a party to a prenuptial agreement be
represented by counsel in order to make the agreement enforceable.
representation by counsel may make a prenuptual agreement more likely to be
enforced; but its not required
Under Virginia law, adultery is grounds for
granting the innocent party an absolute divorce with no waiting period.
cruelty constitutes grounds for granting the innocent party
an absolute divorce after a period of one year from the date of the act.
on the grounds of separation without cohabitation only if the husband and wife have lived separate and apart without any cohabitation and without interruption for one year
an absolute divorce may be decreed
If the parties have entered into a separation agreement and they do not have minor children, an absolute divorce may be decreed if
the husband and wife have lived separately and apart without cohabitation and without interruption for six months.
willful desertion or abandonment is a ground for granting
the innocent party an absolute divorce after a period of one year from the date of the act.
an absolute divorce (divorce from the bond of matrimony) may be decreed upon the application of either party to a marriage if
the spouses have lived separate and apart without any cohabitation and without interruption for one year.
If a party has filed a suit for divorce based on fault grounds and, while the suit is pending, the parties have satisfied the grounds for a no-fault absolute divorce, a Virginia statute specifically recognizes that either party may petition the court for
a no-fault absolute divorce, and the statute provides that a party may do so even without seeking leave to amend the bill of complaint or cross-bill.
when multiple grounds exist for divorce, the ground upon which a divorce will be granted is
within the discretion of the trial court.
Generally, the court determines the value of marital property as of the date of
the evidentiary hearing on valuation
the court may order that a different valuation date be used that that of the evidentiary hearing on valuation upon
motion of either party; showing good cause
a portion of the increase in the value of a investment portfolio which is attributable to market forces is deemed
separate property
a portion of investment portfolio increased value due to management efforts of financial advisor, prior to divorce is
marital property and subject to equitable distribution
While marital property is subject to equitable distribution by the court as one aspect of an absolute divorce, separate property
is not
Separate property includes
1) real and personal property acquired by a party before marriage
2) income from and the increase in value of separate property
3) for reasons “not attributable to the personal efforts of either party,” such as passive appreciation in the property’s value.
When separate property increases in value due to the personal efforts of either party or contributions of marital property, the increase will be
1) marital property, subject to equitable distribution,
2) if those personal efforts contributed to the increase in value, were significant, and resulted in substantial appreciation.
Personal effort includes
labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional, or marketing activity directly applied to the separate property.
when separate property increases in value
Only the increase in value is subject to equitable distribution; the original value of the property remains separate property.
The non-owner spouse has the burden of proof to show
that contributions of marital property or personal effort were made and the separate property increased in value.
The burden then shifts to the owner spouse to show that
the increase in property value was not caused by personal efforts or contributions of marital property.
In Virginia, the trial court, in disposing of a request for spousal support, must consider 13 factors set forth by statute, including, but not limited to
1) the obligations, needs, and financial resources of the parties,
2) their standard of living established during the marriage,
3) the duration of their marriage,
4) the property interests of the parties,
5) each party’s contributions to the family, 6) the earning capacity of each party,
7) the provisions made regarding marital property, etc.
fault by either party must be considered when determining whether to
award spousal support
No spousal support may be awarded to a spouse who
commits adultery, sodomy, or buggery outside the marriage unless the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
in a contested case, 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.
if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree
no decree ordering spousal support and maintenance or imposing any monetary or nonmonetary condition can be made except in accordance with that stipulation or contract.
because spouse’s adultery was established at trial, the court was required to
deny guilty party spousal support unless there was clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
if an award is challenged on appeal, and the award was not articulated by the court in writing, the appellate court would most likely
remand the case to the trial court to articulate its findings and reasoning
Both parents, regardless of marital status, are legally required
to support their minor children.
Parents cannot bargain away
child support payments
while parents can enter into private agreements regarding the payments, they cannot
agree to any release or compromise that would negatively affect the child’s welfare
Virginia has adopted the income-shares method of computing
the amount of child support each parent must bear.
under the income shares method for calculating child support payments
The total monthly child support amount is divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income.
In calculating a parent’s gross income, generally all income from all sources is considered, including
spousal support
There is a rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines
is correct
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 non-custodial parent actually pays the support amount.
In Virginia, professional goodwill is considered
marital property subject to division upon divorce
In Virginia, professional degrees and licenses are
not property to be divided, even if they were attained during the marriage.
residential property inherited by a spouse is
separate property, not subject to division upon divorce
A Virginia court 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.
absence of a marital relationship between a child’s parents, does not affect
the parental rights of the father, provided he can establish parentage
As part of the equitable distribution of marital property, a Virginia court may
1) order the transfer of jointly owned marital property, or any interest therein, to a party,
2) permit one party to buyout the other’s interest and assume any mortgage or indebtedness secured by that property,
3) or order the sale of the property.
Equitable distribution is a _____-step process
four step process
under the equitable distribution four step process the court determines:
(i) determines the ownership and worth of all property,
(ii) determines whether all property is marital or separate, or what portion is part-marital or part-separate,
(iii) uses the statutory factors to determine how to divide the marital property, and
(iv) awards jointly owned marital property and debts to each spouse and, if appropriate, grants a monetary award (payable in lump sum or periodically) to one spouse to obtain the desired percentage split after it transfers the marital property.
the monetary award granted to one spouse (to obtain the desired percentage split after it transfers the partial property) comes out of
the non-jointly owned marital property
Generally, a court’s equitable distribution award is considered
final and may not be later modified or re-opened.
Virginia courts can modify spousal support orders to increase, decrease or terminate payment, upon the petition of either party, as the circumstances may
make proper, unless the parties contracted otherwise.
Spousal support terminates upon
the remarriage of the supported spouse, death of the supported spouse, or death of the paying spouse, unless the parties stipulate or agree otherwise.
Spousal support will also terminate if
the supported spouse habitually cohabits with another in a marriage-like relationship when shown by clear and convincing evidence, unless:
(i) the parties stipulated or agreed otherwise, or
(ii) the supported spouse proves by a preponderance of the evidence that termination would be unconscionable.
cohabitation by the payee spouse does not automatically
terminate spousal support, since it is not remarriage.
Child support awards, visitation, and custody agreements can be modified by the issuing court or another court with jurisdiction upon a showing of
a material change in circumstances that are neither voluntary nor foreseeable
Child support awards, visitation, and custody agreements can be modified or new decree made upon petition by
parent’s, its own petition or petition of a probation officer or Department of Social Services
On a parent’s petition, its own petition or petition of a probation officer or Department of Social Services, the court can modify or make a new decree when
the parents’ circumstances and interests of the children require.
The new decree operates only
prospectively.
As when granting an original child support award, a Virginia 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 based on the relevant evidence of the particular case based upon enumerated statutory factors.
Two factors are:
(i) a child’s independent financial resources, and (ii) the financial resources and needs of each parent.
Legal custody is the right of a parent to
make major decisions, as contrasted with everyday decisions, regarding the minor child.
Typically, areas of health, education, and religion are encompassed.
physical custody is the right to
have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.
Typically when a court awards primary physical custody of a child to one parent, the noncustodial parent is allowed
reasonable visitation.
Because parents have a constitutional right to have contact with their children, the denial of visitation is very unusual and typically only occurs when
visitation would seriously endanger the child’s physical, mental, or emotional health.
It would be highly unusual for the court to deny
visitation rights to the noncustodial parent
The U.S. Supreme Court has recognized that an unwed biological father has a substantive due process right under the U.S. Constitution to
have contact with his child.
an unwed biological father’s substantive due process right under the U.S. Constitution to have contact with his child exists only if
the father demonstrates a commitment to the responsibilities of parenthood.
A fit parent has a fundamental constitutional right to the
care, custody, and control of the children in relation to grandparent or other non-parent visitation.
In Virginia, a non-parent requesting visitation in opposition to both of the child’s parents, at least one of whom is fit, must show, by clear and convincing evidence, that
(1) the denial of visitation would cause actual harm to the child
if denial of visitation by non-parent would cause actual harm, then non-parent must also show by a preponderance of the evidence, that
visitation will serve the best interest of the child
fitness as a parent may be called into question considering felony conviction and time in jail, but
without more wont be found unfit
Grandmother is not likely to prevail in her argument that she is entitled to visitation rights with Junior, regardless of his best interest, because
she cannot show actual harm to overcome the opposition of both fit parents.
A decision by a J&DR Court judge is appealable to
the Circuit Court within the jurisdiction of which the J&DR court sits.
The appealing party must note the appeal within
10 days after entry (signed by the judge) of the order or judgment being appealed.
The noting of appeal must be
in writing and received by the clerk’s office within the 10-day period.
The party must also, within _______ days from the date of the judgment ___________…
1) 30 days
2) pay the writ tax and court costs for the circuit court.
A marital agreement, including a separation agreement, generally must be
in writing and signed by both parties.
Among the matters a marital agreement may address is
property division, spousal support and child support.
A party may waive the right to
spousal support.
The court may modify spousal support orders to
increase, decrease, or terminate payment, upon the petition of either party, as the circumstances may make proper, unless the parties have contracted otherwise.
A marital agreement is not enforceable if
the person against whom enforcement is sought proves that:
1) she did not voluntarily execute the agreement, or
2) the agreement was unconscionable when it was executed and,
3) before the execution of the agreement, 4) she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party,
5) and did not voluntarily and expressly waive in writing such disclosure beyond the disclosure provided
Both parents, regardless of marital status, are legally required to
support their minor children.
Parents can enter into private agreements regarding the payments of
child support
parents cannot agree to any release or compromise regarding child support payments that would
negatively affect the childs welfare
Absent a court order, an agreement between the parties regarding the waiver or modification of child support is
not enforceable
The court may, on petition of either of the parents or on its own motion or a petition from the Department of Social Services,
revise and alter a decree of child support and make a new decree for child support, as the circumstances of the parents and the benefit of the children may require.
Modifications are permissible upon a showing of
a material change in circumstances regarding the child’s needs or parents’ financial situation.
Once a custody order has been entered, absent relocation, Virginia retains subject matter jurisdiction to
modify the order while the child remains a minor.
All custody orders, including visitation, are
modifiable upon the request of a party, a Department of Social Services petition, or the court’s own motion.
In determining whether a change to the custody order is warranted, the court must find
a change of circumstances since the most recent custody order, and that the requested modification of the order is in the best interests of the child.
The party seeking modification of the custody order has
the burden of proof by a preponderance of the evidence.
The court consider several factors in determining the best interest of the child, including:
*age/physical/mental condition of the child, giving due consideration to the child’s changing developmental needs;
*age/physical/mental condition of each parent;
*relationship between each parent and the child, giving due consideration to the positive involvement with the child’s life and the ability to accurately assess and meet the child’s emotional, intellectual, and physical needs;
*needs of the child, giving due consideration to the child’s other important relationships, including but not limited to siblings, peers, and extended family;
*role each parent has played, and will play in the future in the child’s upbringing and care;
*the propensity of each parent to actively support the child’s contact and relationship with the other party, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
*willingness and demonstrated ability of each parent to maintain a close continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
*the reasonable preference of the child, if the court deems the child of reasonable intelligence, understanding, age, and experience to express such a preference;
*history of family, sexual, or child abuse, act of violence, force, or threat that within 10 years prior to petition;
*other factors court deems necessary and proper to the determination.
*Although the court must consider all these factors, it need not quantify the weight given to each.
A common-law marriage exists when the parties
(i) agree they are married,
(ii) cohabit as married, and
(iii) hold themselves out in public as married.
Virginia does not recognize
a common-law marriage.
if either party has a valid prior existing marriage at the time that the subsequent marriage is entered into
the latter marriage is void
In Virginia, a marriage is bigamous if at the time of the second marriage either party is
validly married to someone else then living.
Spousal support terminates upon
the remarriage of the spouse receiving support, unless otherwise provided by stipulation or contract.
child support obligations do not generally terminate except upon
the child reaching age 18 or becoming emancipated
Child support obligations do not terminate with
the remarriage of the custodial parent and generally only terminate upon the child reaching age 18 or becoming emancipated
A felony conviction of either spouse can be grounds for an annulment if
(i) the felony conviction predates the marriage and (ii) the party seeking the annulment was unaware of the conviction at the time of the marriage.
husband did not reveal his felony conviction to his spouse prior to their marriage. Consequently, she would have grounds to seek
an annulment
A person may marry after attaining the age of 18 or after
being declared an emancipated minor
while fraud can constitute grounds for an annulment, the fraud must go to
the essence of a marriage and be based on present fact.
a marriage is voidable if the wife was pregnant by some person other than the husband at the time of marriage without
the husband’s knowledge
Neither party is required to be a resident or domiciliary of Virginia in order to
marry in Virginia
Virginia does not impose a waiting period between the date of the issuance of the marriage license and
the date of the marriage ceremony.
Marital agreements must provide fair and reasonable disclosure of
financial status, including income, assets, and liabilities of all parties.
Absent adequate disclosure of financial status, a court will generally
refuse to enforce the agreement.
parties must enter into marital agreement
voluntarily (i.e., free of fraud, duress, or misrepresentation)
In making this determination regarding voluntariness of marital agreement, courts consider factors such as
time-pressure
a party’s insistence on the agreement as a condition to marriage is
not considered duress.
a marriage that has been solemnized under a license by a person not legally authorized to solemnize will
not be voided because of that person’s lack of authority
there is no statutory requirement in Virginia that witnesses
be present at the marriage ceremony.
A court may modify spousal support orders upon a finding of
a “material change in circumstances.”
a “material change in circumstances” can be either
(i) something that was not reasonably in the parties’ contemplation at the time of the original award, or (ii) the non-occurrence of some event anticipated by the court in making the award through no fault of the party seeking the change.
The change must not be voluntary or foreseen.
When a spouse’s right to recover workers’ compensation or personal injury damages accrues during the marriage and before the last separation of the parties, the portion attributable to lost wages or medical expenses not covered by health insurance is
the marital share.
In Virginia, separation without cohabitation is
the “no-fault” ground for absolute divorce
An absolute divorce (divorce from the bond of matrimony) may be decreed upon
the application of either party to a marriage if the spouses have lived separate and apart without any cohabitation and without interruption for one year.
husband cannot seek a divorce on the grounds of his wife’s adultery because he himself
has committed adultery
husband cannot not seek a divorce on the grounds of his wife’s adultery because of his
connivance in her adultery
In Virginia, a non-parent requesting visitation in opposition to both of the child’s parents (at least one of whom is fit), or the sole surviving fit parent, must show
by clear and convincing evidence that the denial of visitation would cause actual harm to the child.
although generally a non-parent cannot be granted visitation over the objection of the child’s only living parent, parental objection to visitation does not in itself
preclude non-parental visitation
In Virginia, if a non-parent can demonstrate that the denial of visitation will cause actual harm to the child by clear and convincing evidence, then the non-parent may be granted visitation if
the non-parent can also demonstrate, by clear and convincing evidence, that visitation would be in the best interest of the child.
even though the grandparents are fit caregivers, they cannot be granted visitation over the objection of the child’s only living parent unless they can demonstrate, by clear and convincing evidence, that
the denial of visitation will cause actual harm to the child and also that visitation would be in the best interest of the child.
Virginia law requires at least one spouse to be a bona fide resident and domiciliary of Virginia for a minimum of six months prior to
the commencement of a matrimonial action
While it is true that Virginia does not recognize common law marriage
it will recognize a valid common law marriage from another jurisdiction under the Full Faith and Credit Clause of the Constitution.
There is no requirement that there be a judicial separation prior
to a divorce under Virginia law
Under Virginia law, stock options acquired during the marriage are
marital property even if they will not be exercised until after the marriage.
property acquired during the marriage by bequest or devise from a source other than the other spouse is
separate property
Social Security benefits are
not subject to equitable distribution
property acquired during the marriage by gift from a source other than the other spouse, but not as a gift to both spouses, is
separate property
A birth parent may revoke consent prior to the issuance of the final adoption decree in two situations:
(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.
In Virginia, neither parent has a legal presumption favoring them as
the custodial parent.
In determining child custody and visitation, the court must determine
what is in the best interests of the child, considering the ten statutory factors in Va. Code sec. 20-124.3
the ten statutory factors for whats in the child’s best interest for physical custody
(1) age, physical, and mental condition of the child;
(2) the age and physical condition of each parent;
(3) the relationship between each parent and the child;
(4) the needs of the child;
(5) the role that each parent has played and will play in the child’s upbringing and care;
(6) the propensity of each parent to actively support the child’s contact and relationship with the other party;
(7) the willingness and ability of each parent to maintain a close continuing relationship with the child;
(8) the reasonable preference of the child;
(9) any history of family abuse; and
(10) any other factors that the court may deem necessary and proper.
The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is to
prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.
Almost all states, including Virginia, have enacted
the UCCJEA
Adjudication under the UCCJEA requires that the court possess
subject matter jurisdiction
A court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if the state in which the court sits:
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.
where each parent files a petition for custody in their respective states, the __________ determines which court will exercise JX over custody of child
UCCJEA
Under the UCCJEA, if a child lives with a parent or guardian for at least six consecutive months immediately before the proceeding’s commencement in one state
that state is the child’s home state
For a child under six months of age, the child’s home state is the state where
the child has lived since birth
Under Virginia law, in a custody dispute between a parent and a non-parent, the law presumes that the child’s best interests will be served when
in the custody of its parent.
Generally, parents are entitled to the custody and care of their children and will prevail unless
unfit
A third party with a legitimate interest in the child can overcome parental preference when
by clear and convincing evidence, the third party shows that the child’s best interest would be served.
as between a parent and a third party non parent, the childs best interest would be served with the non parent where the parent
(i) is unfit,
(ii) lost custody in a prior order,
(iii) voluntarily relinquished custody,
(iv) abandoned the child, or when
(v) the circumstances constitute an extraordinary reason for taking a child from its parent or parents.
In Virginia, there are how many fault grounds for absolute divorce?
4
the four fault grounds for absolute divorce are
1) adultery
2) conviction of a felony
3) willful desertion
4) cruelty
Virginia recognizes a “no-fault” ground for absolute divorce based on
separation without cohabitation
When multiple grounds exist for divorce, the ground upon which a divorce will be granted is
within the discretion of the trial court.
Adultery is
voluntary sexual intercourse with someone other than one’s spouse.
Adultery is grounds for
granting the innocent party an absolute divorce with no waiting period.
Adultery must be proven by
circumstantial evidence that is clear and convincing, based upon proven facts and reasonable inferences drawn therefrom
Even when the adulterer is legally separated
the duty of fidelity continues since the marriage is still in existence and the parties cannot remarry
adultery during separation can be the grounds for
absolute divorce
If a plaintiff sues for divorce on fault grounds, the plaintiff must have
clean hands.
Recrimination occurs when
both spouses committed a marital wrongdoing of like conduct.
a party may raise the defense of condonation if
the plaintiff had full knowledge of the adultery and forgave the defendant
Cohabitation following disclosure of the marital offense may be evidence of
forgiveness, but the burden is on the defendant to prove condonation as a defense
the defense of condonation should
bar a divorce based on adultery
Constructive desertion exists when
one spouse leaves the marital home because the other spouse has committed acts of cruelty toward the spouse.
The spouse who leaves may be granted
a divorce based on constructive desertion, even though she is the one who left the marital home
Cruelty is a ground for
granting the innocent party an absolute divorce after a period of one year from the date of the act.
To prevail on grounds of cruelty, the innocent party must demonstrate
a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and makes the continued cohabitation between the parties unsafe.
Mental cruelty alone is
not normally a ground for divorce
mental anguish, repeated and unrelenting neglect, and humiliation
can, in sufficient degree, amount to cruelty
Angry words, coarse and abusive language, and humiliating insults can constitute cruelty when
they are significant enough to produce mental suffering sufficient to injure health
for “no fault” divorce with respect to lack of cohabitation, the party must intend to live separate and apart permanently at
the beginning of the uninterrupted period
Recrimination will not bar either party from obtaining
a no-fault absolute divorce.
Spousal support is
the obligation of the spouse who has the greater financial resources to provide monetary support to the other spouse
Spousal support is awarded if
one spouse cannot provide for her own needs
Fault by either party shall be considered when determining whether to award
spousal support
when determining whether to award spousal support, the court must consider
the circumstances and factors that contributed to the dissolution of the marriage, specifically including adultery, felony conviction, desertion, and cruelty.
No spousal support may be awarded to a spouse who commits adultery unless
the court determines from clear and convincing evidence that the denial of spousal support would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
Virginia follows a system of
equitable distribution relating to the division of marital assets.
The objective of equitable distribution is to
order a fair distribution of all marital property; taking into account consideration all of the circumstances between the parties
An equitable distribution is not necessarily an
equal division of marital assets.
In making an equitable distribution of property, the court will
(i) determine the ownership and worth of all property,
(ii) determine whether all property is marital or separate, or what portion is part-marital and part-separate,
(iii) use a set of statutory factors to determine how to determine percentages to each spouse of the marital property, and
(iv) award jointly owned marital property and debts to each spouse and,
if appropriate, grant a monetary award to one spouse or the other to get the desired percentage split.
The court will consider a number of factors when arriving at an equitable distribution, including
the duration of the marriage,
the age and physical and mental condition of the parties,
the monetary and nonmonetary contributions of each party to the marriage,
and the circumstances and factors contributing to the marriage’s dissolution.
In Virginia, there are four fault-based grounds for divorce
adultery, conviction of a felony, willful desertion, and cruelty.
Willful desertion or abandonment is a ground for granting the innocent party an absolute divorce decree after
a period of one year from the date of abandonment or desertion.
Abandonment or willful desertion requires both
the actual breaking off of cohabitation and the intent to desert in the mind of the deserter.
Separation by mutual consent is not
a desertion by either party.
A separation agreement between spouses for the purpose of settling the rights and obligations of either or both of them is generally enforceable so long as
the agreement is not unconscionable.
Consideration is not required for an separation agreement, but generally the agreement, which is effective upon execution, must be
in writing and signed by both parties.
A valid marital agreement may generally be amended or revoked only by
a written agreement signed by the parties.
amended separation agreement or revocation is enforceable without
consideration.
An exception is made for oral separation agreements that are memorialized in
(i) a court order endorsed by counsel, or (ii) a record made by a court reporter at a deposition or elsewhere and personally affirmed by the parties on the record.
In general, spousal support may be increased, decreased, or terminated as the circumstances may make proper, unless
the parties have contracted otherwise; which the court wont disturb
Virginia recognizes a “no-fault” ground for absolute divorce based on
separation without cohabitation
An absolute divorce may be decreed upon the application of either party to a marriage if the spouses have
lived separate and apart without any cohabitation and without interruption for one year.
A party must intend to live separate and apart permanently at
the beginning of the uninterrupted period.
Virginia law requires that only one spouse to be a bona fide resident and domiciliary of Virginia for
a minimum of six months immediately preceding the commencement of a matrimonial action.
