Domestic Relations Flashcards
Upon what grounds can an innocent party get an immediate absolute divorce in VA?
Under Virginia law, adultery is grounds for granting the innocent party an absolute divorce with no waiting period.
When can a VA court have SMJ to preside over a custody hearing when the child does not live in VA?
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.
If you sue for divorce based on adultery, but by the time the case gets to VA court you’ve been separated for a year, can your ex petition the court for a no-fault divorce based on the separation?
YES. 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. Regarding the court’s award of a divorce based on a one-year separation, when multiple grounds exist for divorce, the ground upon which a divorce will be granted is within the discretion of the trial court.
What date does the VA court use to determine the value of marital property?
Generally, the court determines the value of marital property as of the date of the evidentiary hearing on valuation. However, upon motion of either party showing good cause, the court may order that a different valuation date be used.
Explain how a VA court determines what is marital vs separate property.
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 real and personal property acquired by a party before marriage as well as income from and the increase in value of separate property 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 marital property, subject to equitable distribution, 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. 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.
Does spousal support automatically terminate if the ex gets remarried (in VA)?
YES.
Spousal support terminates upon the remarriage of the spouse receiving support, unless otherwise provided by stipulation or contract.
If a 16 yr old has consensual sex with a 14 yr old in VA, has the 16 yr old committed a felony?
NO.
If a person “carnally knows” (which includes sexual intercourse) a child 13 years or older but under 15, he is generally guilty of a Class 4 felony in Virginia. If the child consents to sexual intercourse and the accused is a minor, the crime is reduced to a Class 6 felony if the consenting child is three or more years the accused’s junior, or a Class 4 misdemeanor if the consenting child is less than three years the accused’s junior.
After divorce in VA, what happens to a life insurance policy where the ex spouse is the beneficiary?
If a decedent’s marriage is judicially dissolved prior to his death, then any designation made by the decedent prior to the dissolution providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void. The decedent’s interest in the asset then passes as if the decedent’s former spouse predeceased the decedent.
Can you get an annulment if you have a felony?
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.
Can you get an annulment for fraud?
Yes but the fraud must go to the essence of a marriage and be based on present fact.
Is a marriage voidable t if your wife was pregnant by someone else at time of marriage and you didn’t know?
YES. 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.
In VA, what’s the waiting period between getting a marriage license and the date of the marriage ceremony?
Virginia does not impose a waiting period between the date of the issuance of the marriage license and the date of the marriage ceremony.
In VA, what must a prenup contain?
Marital agreements must provide fair and reasonable disclosure of financial status, including income, assets, and liabilities of all parties. Absent adequate disclosure, a court will generally refuse to enforce the agreement.
Is a VA prenup valid even if you only signed cause otherwise they wouldn’t marry you?
Yes.
The parties must enter into the agreement voluntarily (i.e., free of fraud, duress, or misrepresentation). In making this determination, courts consider factors such as time-pressure. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.
In VA, is a marriage void if your friend w/o legal authority marries you?
No.
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
