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Domestic Relations Flashcards

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1
Q

Does Virginia recognize presumption in favor of mother in awarding custody?

A

No

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2
Q

What constitutes a VOID marriage?

A
  1. BIGAMY
  2. INCEST
  3. Defective LICENSING OR SOLEMNIZATION
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3
Q

What constitutes a VOIDABLE marriage?

A
  1. Nonage
  2. Fraud
  3. Duress
  4. Mental Capacity
  5. Incurable Impotency existing at start of marriage
  6. Felony of 1 party b4 marriage unknown to other
  7. Wife pregnant by another man
  8. H fathered another woman’s child within 10 months prior to marriage
  9. 1 party was a PROSTITUTE
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4
Q

How long is a marriage license good for?

A

Must be used within 60 days

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5
Q

What is the effect of a nonauthorized party performing a marriage?

A

Not affected if otherwise lawful and EITHER PARTY BELIEVES they were lawfully joined

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6
Q

Does VA recognize common law marriages?

A

CANNOT BE CREATED IN VA

but will be recognized if entered into in a state where valid

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7
Q

Which concurrent estate can only exist with spouses?

A

Tenants by the Entirety

Includes Right of Survivorship

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8
Q

Minimum requirements for a valid PREMARITAL AGREEMENT

A

In writing and signed by both parties

No CDN needed

Become effective upon marriage

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9
Q

Enforceability of Premarital Agreement when Marriage is VOID

A

Only enforceable to extent needed to avoid inequitable result

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10
Q

How to amend/revoke premarital agreement after marriage

A

Only by WRITTEN AGMT SIGNED BY BOTH PARTIES.

No CDN needed

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11
Q

Who holds spousal privilege?

A

Spouse may prevent the other from testifying against him at trial.

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12
Q

Def’n of DOMESTIC VIOLENCE

A

Any INTENTIONAL OR RECKLESS ACT that causes PHYSICAL OR PSYCHOLOGICAL INJURY to another family member

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13
Q

Where is PREFERRED VENUE for suits for divorce, annulment, or affirmation of marriage?

A

Preferred venue lies:

  1. Where PARTIES LAST DWELLED,
  2. WHERE DEFENDANT RESIDES (P’s option)
  3. where PLAINTIFF RESIDES, IF PUBLICATION NECESSARY
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14
Q

What’s the effect of a divorce granted in a nonpreferred venue (is it valid)?

A

Yes, valid if neither party objects or makes a transfer motion.

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15
Q

What may court do if its nonpreferred venue in divorce/annulment/affirmation action?

A

On its own motion, it may transfer to preferred venue as long as done w/i 60 days after service on all parties.

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16
Q

Does Virginia have “Default Divorce” (i.e., D didn’t answer CMPT w/i 21 days)?

A

No.

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17
Q

In divorce proceeding, what happens if D fails to respond w/i 21 days?

A

No default. P must submit E so a proper record of grounds for divorce is presented to the trial J.

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18
Q

2 Types of Divorce in VA

A
  1. Divorce a MENSA ET THORO (from Bed and Board)

2. Divorce a VINCULO MATRIMONII (From Bonds of Matrimony)

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19
Q

What are characteristics of DIVORCE A MENSA ET THORO?

A

Legal Separation

No waiting period req’d to bring this action

Personal property rights of both parties protected

Neither party may marry during life of the other

May be revoked by both parties

May be merged into divorce VINCULO MATRIMONII

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20
Q

Grounds for divorce A MENSA ET THORO

A
  1. Cruelty and RSN Apprehension of Bodily Harm

2. Abandonment and Desertion

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21
Q

Grounds for divorce VINCULO MATRIMONII

A
  1. Adultery, Sodomy, & Buggery
  2. Felony Conviction w/ sentence of at least 1 year confinement
  3. Cruelty or RSN Apprehension of Bodily Harm (must be going on at least 1 year)
  4. Desertion (must be going on for 1 year)
  5. Separation w/ No Cohabitation (AT LEAST 1 YEAR)
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22
Q

What is NO-FAULT DIVORCE?

A

Means parties have lived SEPARATE AND APART W/O COHABITATION FOR AT LEAST 1 YEAR

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23
Q

Under what circumstances may No-Fault Divorce be granted after 6 months?

A

If NO MINOR CHILDREN, and they have a SEPARATION AGREEMENT

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24
Q

Effect of divorce A VINCULO MATRIMONII on property held jointly (with right of survivorship).

A

EXTINGUISHES RT OF SURVIVORSHIP and converts estates BY THE ENTIRETY to TENANCIES IN COMMON

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25
Q

Def’n of SEPARATE PROPERTY?

A

All property acquired:

  1. BEFORE marriage
  2. DURING marriage by BEQUEST, DESCENT, SURVIVORSHIP, or GIFT
  3. In exchange for or from PROCEEDS OF SALE OR EXCHANGE of separate property, and
  4. AFTER LAST SEPARATION
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26
Q

Def’n of MARITAL PROPERTY

A

All property

  1. titled in BOTH NAMES, and
  2. acquired DURING MARRIAGE

Also, WAGES rec’d during marriage

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27
Q

What happens when separate property is commingled w/ marital property?

A

Becomes marital property

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28
Q

Can spousal support be awarded when marriage is void?

A

NO

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29
Q

Is adultery an absolute bar to spousal support?

A

YES, unless it would result in MANIFEST INJUSTICE

But if both spouses guilty of adultery, needy spouse may request support UNDER NO-FAULT GROUNDS

30
Q

Can spousal support be waived by a party?

A

Yes

31
Q

What causes spousal support to end?

A
  1. DEATH of either party
  2. REMARRIAGE OF PAYEE
  3. end of DEFINED DURATION
  4. Payee COHABITATES W/ ANOTHER FOR 1 YEAR
32
Q

What type of changed circumstances justify modification of spousal support?

A

Changes in payee’s financial needs beyond their control

Changes in payor’s ability to pay that’s beyond their control

33
Q

Can support payments be modified retroactively?

A

no, prospectively only

34
Q

What must moving party show to reduce child support payments?

A
  1. MATERIAL CHANGE IN CIRCUMSTANCES,

2. Inability to pay NOT DUE TO VOLUNTARY ACT

35
Q

Are child support payments based only on need?

A

No, also on ability to pay

36
Q

Can parents privately and contractually modify any terms of child support w/o court approval?

A

NO

37
Q

What is primary consideration in custody cases?

A

WELLBEING OF CHILD

38
Q

Is there a presumption in favor of either parent in custody cases?

A

NO

39
Q

Factors considered in evaluating best interests of the child for determining custody or visitation arrangements

A
  1. Age and physical/mental condition of child
  2. Age and physical/mental condition of parents
  3. Relationship between each parent and child
  4. Needs of the child
  5. Role each parent has played (and will play) in upbringing and care of child
  6. Propensity of each parent to allow the child CONTACT W/ OTHER PARENT
  7. RSN PREFERENCE OF THE CHILD
  8. Any history of FAMILY/SEXUAL ABUSE
  9. Other RVT factors
40
Q

Under what circumstances can custody decree be modified?

A

CHANGE IN CIRCUMSTANCES, or

if change in custody would be IN BEST INTERESTS OF CHILD

41
Q

Can VA court require child be raised in certain religion over objection of other parent?

A

NO

42
Q

Can grandparents, stepparents or other family members get visitation over objections of both parents?

A

Yes –> BUT ct must find that harm to the child would result w/o such visitation

43
Q

Can grandparent, stepparent get visitation over objection of 1 parent?

A

Yes, ct will use BEST INTERESTS OF THE CHILD standard

44
Q

When will wishes of a child be considered?

A

When they reach the AGE OF DISCRETION (though not legally defined)

45
Q

Under what circumstances may minor be granted emancipation?

A
  1. Wants to or has entered into VALID MARRIAGE
  2. ACTIVE DUTY
  3. LIVES SEPARATE FROM PARENTS w/ their consent and is capable of supporting himself
46
Q

Effect of UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

A

Vests EXCLUSIVE JURISDICTION for child custody litigation in the courts of the child’s HOME STATE

Establishes a PROCESS FOR DETERMINING WHICH COURT HAS JURISDICTION in the event that another state might be a more appropriate forum

Institutes UNIFORM PROCEDURES to enforce child custody orders across state lines

47
Q

Def’n of HOME STATE under UCCJEA

A

Where child lived with a parent or person filling role of parent FOR 6 CONSECUTIVE MONTHS prior to the commencement of the proceeding

48
Q

Under UCCJEA, when does VA court have jurisdiction to enter child custody order

A

No other state has jurisdiction, and

CHILD, and AT LEAST ONE PARENT have a SIGNIFICANT CONNECTION w/ VA and SUBSTANTIAL E IS AVAILABLE IN VA re child’s care, protection, training, and personal relationships

49
Q

How can 3rd party (non-parents) show standing to be awarded custody of a child?

A

Must have LEGITIMATE INTEREST, and

show by CLEAR AND CONVINCING EVIDENCE that BEST INTEREST OF CHILD WARRANTS IT

50
Q

When 3rd party files claim for custody, is there presumption in favor of parents?

A

Yes. Courts must give DUE REGARD TO THE PRIMACY OF THE PARENT-CHILD R’SHIP

51
Q

How can a man’s paternity be established?

A
  1. WRITTEN STMT of the father and mother made under oath acknowledging paternity
  2. SCIENTIFICALLY RELIABLE GENETIC TESTS that show at least 98% probability of paternity

OR, if those don’t exist, by CLEAR AND CONVINCING E of:

  1. OPEN COHABITATION at probable time of conception
  2. MEDICAL OR ANTHROPOLOGICAL Evidence
  3. Results of GENETIC TESTS
  4. Consenting to use of SURNAME
  5. Claim child on TAX RETURN or other OFFICIAL DOCUMENT
  6. ACKNOWLEDGEMENT OF PATERNITY under oath by UNWED FATHER
  7. ADMISSION under oath from a MALE between 14-18 REPRESENTED BY GUARDIAN AD LITEM
52
Q

Must a court rule on domestic relations issues (e.g., child custody and visitation) prior to other considerations?

A

YES

53
Q

Does PRIMARY PHYSICAL CUSTODY give that parent the power to prevent visitation by another parent w/ legal custody?

A

No

54
Q

Does LEGAL CUSTODY grant that parent the right to visitation?

A

NO

55
Q

If a court orders joint custody but doesn’t specify visitation, how is visitation determined?

A

Generally up to custodial and non-custodial parents to agree

56
Q

What does LEGAL CUSTODY mean?

A

Refers to parents’ abilities to make MAJOR LIFE DECISIONS for the child (e.g., school, health, religion)

57
Q

What does PHYSICAL CUSTODY mean?

A

Refers to the parent the child lives with, who’s responsible for the child’s daily care and routines

58
Q

Is divorce an IN PERSONEM OR IN REM action?

A

IN REM. Thus, court CAN grant divorce even if other party isn’t present (assuming service was proper–like by publication)

59
Q

Is spousal support an IN PERSONAM or IN REM right?

A

IN PERSONAM (note that this is different from a divorce action). Thus, court CANNOT grant spousal support w/o both parties present (b/c court needs personal jurisdiction over both).

60
Q

Are spousal support agreements entered into in another jurisdiction, not involving courts, enforceable in VA?

A

Yes, if reduced to writing and signed by both parties.

61
Q

Desertion and cruelty justifying divorce must be proved by which legal standard?

A

Preponderance of the Evidence

62
Q

Adultery justifying divorce must be proven by what legal standard?

A

C&C E

63
Q

When spouse engages in exclusively verbal abuse that causes the other to become ill and reasonably fear for health and safety, a court will most likely find grounds for what type of divorce claim?

A

CONSTRUCTIVE DESERTION

Requires conduct so egregious as to warrant leaving the marital home, but doesn’t require actual physical abuse

64
Q

When grounds for divorce is cruelty, what is required?

A

Acts that cause BODILY HARM

Renders spouses living together UNSAFE

65
Q

When grounds for divorce is cruelty, can mental or verbal cruelty be enough?

A

No, but may be enough if conduct is such that it affects and endangers the physical health of the spouse

Rude words will not suffice

66
Q

What does CONSTRUCTIVE DESERTION require?

A

Other spouse’s conduct SO EGREGIOUS as to justify the non-offending spouse leaving the marital home.

67
Q

Can adultery be grounds for divorce when the other spouse also commits adultery?

A

No

68
Q

Under what circumstances will adultery not be granted (even though spouse cheated)?

A

When the other spouse also committed adultery, or

The parties resumed marital relations

69
Q

In a no fault divorce, what factors will court consider as to SPOUSAL SUPPORT?

A
  1. FINANCIAL RESOURCES, obligations of the parties
  2. STANDARD OF LIVING during the marriage
  3. DURATION of the marriage
  4. AGE and PHYSICAL & MENTAL condition of the parties
  5. CONTRIBUTIONS (monetary and non-monetary) of each party to the well-being of the family
  6. PROPERTY INTERESTS of parties
  7. EARNING CAPACITY
70
Q

How will the court distribute property at an equitable distribution hearing?

A

Court will:

  1. Determine VALUE OF ALL PROPERTY, real and personal, acquired during the marriage
  2. Consider value of other spouse’s contribution to the accumulation of that property
  3. MAY consider FAULT GROUNDS in determining equitable distribution
71
Q

When a fault-based divorce is on the grounds of desertion, what period of living separate and apart is req’d before final divorce will be granted?

A

1 year

72
Q

What factors are considered for a request to increase child support?

A
  1. BEST INTERESTS OF THE CHILD

2. SUBSTANTIAL CHANGE OF CIRCUMSTANCES

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