Domestic Relations Flashcards
What courts have jurisdiction over custody and child support orders?
The Juvenile & Domestic Relations District Court and Circuit Court have concurrent jurisdiction over custody and child support orders
How may a party divest the J&DR court of jurisdiction over “further” (meaning an order already issued) orders to determine custody, guardianship, visitation or support?
when a party files a suit for divorce, in which one or all of those issues are raised by the pleadings, and a hearing, including a pendente lite hearing, is set by the circuit court on any such issue for the docket within 21 days of filing, though such hearing may be held after such 21-day period.
BUT, Nothing in this section shall deprive a circuit court of the authority to refer any such case to a commissioner for a hearing or shall deprive the juvenile and domestic relations district courts of the jurisdiction to enforce its valid orders prior to the entry of a conflicting order of any circuit court
What is contempt?
“Contempt is defined as an act in disrespect of the court or its process, or which obstructs the administration of justice
Explain when a court will issue a contempt order.
The power to punish for contempt in inherent in the court. It is essential to the proper administration of the law to enable courts to enforce their orders. It is within the broad discretion of the court whether to exercise its contempt powers.
Two types of divorces
- Divorce a mensa et thoro
- A divorce from bed and board
- Just a legal separation
- Divorce a vinculo matrimonii
- Complete divorce
Reason for and effect of legal separation
- After legal separation agreement, free to separate and have no desertion claim
- Want to live alone and have economic stuff handled, but have a legally intact marriage.
- typically for economic reasons, like taxes and healthcare
- Also for religious reasons
Grounds for Legal Separation
- same a fault-based divorce
- Also, apprehension of bodily harm. Rational basis to believe incoming violence
- For abandonment, just need circumstantial evidence that spouse left with no intention to return and no reason for leaving.
How to get full divorce from legal seperation or get married status restored from legal separation
- After discovering grounds for absolute divorce
- after lapse of time: the court can merge the separation decree into an absoolute divorce if: (1) reconciliation is not probable, and (ii) the separation has been uninterrupted since the judicial separation was granted. The required time is one year unless no minor children, then 6 months.
absolute divorce
Grounds for Fault Divorce? (4)
- Adultery
- Conviction of a felony involving a sentence of one year or more after the date of marriage
- Cruelty
- Willful desertion and abandonment
Definition of desertion
- absent from the home for at least 1 continuous year with intent to desert
- if you leave for a justifiable reason, not desertion
proved by poe
What does not constitute desertion?
Going into the armed forces
mutual agreement
pending divorce
When does the denial of sexual intercourse constitute desertion?
In short, (1) willful withdrawal of the privilege of sexual intercourse without just cause or excuse when such withdrawal is accompanied (2) with willful breach and neglect of other significant marital duties.
In Chandler v. Chandler, 132 Va. 418 (1922), the Supreme Court explained that desertion could be established where there was willful withdrawal of the privilege of sexual intercourse, without just cause or excuse when such withdrawal is accompanied with willful breach and neglect of other marital duties as to practically destroy home life in every true sense and
to render the marriage intolerable and impossible to be endured. In more recent years, the Virginia Court of Appeals has interpreted Chandler to mean that where sexual privileges are willfully withdrawn, desertion does not require the breach and neglect of all martial duties but only the breach of other significant duties. Jamison v. Jamison, 3 Va. App. 644 (1987).
Emphasis on willful refusal
What is constructive desertion and when can it be established?
Constructive desertion generally can be established by cruelty on the part of one spouse that justifies the other spouse’s decision to discontinue marital cohabitation. However, in Rowand v. Rowand, 215 Fa. 344 (1974), the Virginia Supreme Court held that a spouse may be free from legal fault in breaking off cohabitation even where the other party’s conduct falls short of constituting a grounds for divorce (e.g., cruelty).
Lex bar: Where a spouse engages in exclusively verbal abuse, and that verbal abuse causes the other to become ill and to reasonably fear for her health and safety, a court would most likely find grounds for a Constructive Desertion claim. This claim requires conduct is so egregious as to warrant leaving the marital home, but does not require actual physical abuse or assault. Note that Cruelty requires acts that tend to cause bodily harm.
gotta be intolerable; show something like deterioration of health due to the other’s conduct
Definition of cruelty
- Any behavior that poses a danger to the life or health of the other party
- Domestic violence
- Mental cruelty-discretionary
- repeated and unrelenting neglect and humiliation can, in sufficient degree, amount to cruelty
Courts require continuous pattern of conduct, but a single act can be sufficient if:
1. it is so severe as to endanger life
2. it shows an intention to do serious bodily harm,
3. it causes reasonable apprehension of serious future danger
4. the circumstances are likely to be repeated
One year waiting period applies.
Crueltly generally REQUIRES a PHYSICAL act
what distinguishes cruelty and constructive desertion
Typically Physicality. Mental or verbal cruelty can only be a ground for divorce if it affect and endangers the physical health of the divorce-seeking spouse. Rude words lone will not suffice.
Cruelty justifying divorce must be proved by:
Preponderance of the evidence
