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
No-fault ground?
Parties must live separate and apart for one year. Upon the application of either party, a divorce may be granted–no need for agreement
7 defenses to divorce?
- Provocation
- Res judicata
- Recrimination
- Collusion
- Connivance
- Condonation
- SoL to adultery
Divorce defenses
What is provocation?
If misconduct was provoked by the moving party, it is not a ground for divorce; must be proportional
Divorce defenses
what is Res judicata
Issues adjudicated in an earlier proceeding can bar re-litigation
Divorce defenses
What is recrimination
When both parties have some fault (both cheat)
Divorce defenses
What is collusion
(more common w/ no-fault) When both spouses conspire to fabricate grounds for divorce
Divorce defenses
what is condonation
implied or express forgiveness for marital misconduct. Requires full knowledge of the marital offense as well as forgiveness. Forgiveness for one offense does not bar suit based on other unknown offenses.
Divorce defenses
What is the SoL for adultery
Divorce based on adultery will not be granted if it appears that the parties voluntarily cohabited after knowledge of the adultery, if the act occurred more than 5 years before the filing of the suit for divorce, or the act was committed by the procurement or connivance of the party
What is matrimonial cohabitation
Matrimonial cohabitation refers to sexual relations, continuing cohabitation, and carrying out of
mutual responsibilities of the marital relationship
When may a prior custody order be altered?
when there has been a material change of circumstances
What are the best interest factors for the modification of custody or visitation arrangements? (10)
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs
- the age and physical and mental condition of each parent
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child
- The relative willingness and demonstrated ability of each parent to maintain a close and 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 to be of reasonable intelligence, understanding, age, and experience to express such a preference
- Any history of family abuse or sexual abuse, child abuse, or any act of violence, force, or threat that occurred within 10 years prior to the petition for custody (mandatory factor)
- Such other factors as the court deems necessary and proper to the determination
Generally, what is the non-custodial parent entitled to?
reasonable visitation. Parent’s have a constitutional right to have contact with their children
Does VA recognize a presumption in favor of either parent regarding physical custody?
No, VA has abolished all presumptions in favor of either parent in custody determinations. Rather, the court is directed to determine custody based on the factors set forth in the statute for the best interests of the child.
What effect does an adulterous ongoing relationship have on a custody determination?
The Supreme Court of Virginia has stated that while an illicit relationship to which minor children are exposed cannot be condoned, there is not a per se rule prohibiting awarding custody to a parent involved in an adulterous relationship. Ford v. Ford, 418 S.E.2d 415 (1992); Brown v. Brown, 237 S.E.2d 89 (1977). In determining the best interest of the child, the court must consider all facts relevant to the best interests of the child, including what effect a nonmarital relationship by a parent has on the child. Brown, 237 S.E.2d at 91.
Which terms of a separation agreement incorporated into a final divorce decree may be modified and which may not?
- Property division and spousal support are gnerally not modifiable without fraud or unconscionability. WRONG; No request for modification of spousal support based on a material change in circumstances or the terms of stipulation or contract shall be denied solely on the basis of the terms of any stipulation or contract that is executed on or after July 1, 2018, unless such stipulation or contract expressly states that the amount or duration of spousal support is non-modifiable.
- provisions related to child support and custody are mofiable upon a material change in circumstances
What is legal custody
the right of a parent to make major decisions (health, religion, education etc)
what is physical custody
The right have the child reside with a parent or guardian and the obligation to provide for the routine daily care and control of the child
Subject Matter Jurisdiction for Child Custody
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) vests jurisdiction the home state of a child and establishes a process for determing who has JX in the event that another state is more appropriate, and institutes uniform procedures to enforce child-custody orders across state lines.
1. Exclusive jurisdiction for custody is in the child’s home state. Home state: where the child now lives and has been living there with a parent for at least 6 continuous months (or since they were born if less than 6 months); or was the child's home state in the past six months and the child is absent but one of the parents or guardians continues to live there. 2. If no current home state, VA will be the state with SMJ if the child and at least one parent have a significant connection with VA other than mere physical presence; and there is substantial evidence avilable in Virginia concerning the child's care, protection, training, and personal relatiopnships.
- If no other state has jurisdiction through home state/sig. connection or has declined to exercise JX, then VA has JX.
What third parties have standing to seek custody of a child? what must they show to recieve custody?
those that have a legitimate interest in custody. They may be awarded custody upon a showing by clear and convincing evidence that the best interest of the child warrants it.
What is exclusive continuing jurisdiction?
once a state has made an initial determination, there is continuing, exclusive JX for that court, as long as the child, a parent of the child, or any person acting as a parent of the child continues to live there
What is the legal presumption in favor of parents having custody? what are the five factors which rebut that presumption? Then what?
The law presumes that the child’s best interests will be served when in the custody of a parent. Generally, parents are entitled to cusotdy unless they are determined unfit.
five factors established by clear and convincing evidence:
1. parental unfitness
2. lost custody in a previous order;
3. voluntarily relinquished custody;
4. abandonment;
5. a finding of special facts
and circumstances constituting an extraordinary reason for taking a child from its parent
Once the presumption is rebutted, the parties are before the court on an equal footing, and the court must then consider what arrangement will be in the best interests of the child under Va. Code §20-124.3’s multi fact analysis
What fault-based divorces require a waiting period, and which do not?
For divorces based upon either desertion or cruelty, a one year period of physical separation is required to finalize the divorce. There is no waiting period required for adultery; upon proof of adultery, the court can grant an immediate divorce.
what level of proof is required to prove adultery?
Clear and convincing evidence
Where there are no children and there is a separation agreement, a no-fault divorce may be granted so long as:
A no-fault divorce may be decreed if the parties have lived separate and apart for 6 months, without cohabitation or interruption, if there are no children and the parties have a separation agreement or upon separation of the parties for a period of one year if they have children.
What factors are considered in determining an award of spousal support? (6) Effect of adultery?
In considering spousal support, a court will look to:
1. the existing assets of each spouse,
2. employment of each spouse and relative earning potential,
3. the standard of living that the marriage afforded each spouse,
4. the duration of the marriage,
5. any existing health or extreme financial challenges of each spouse, and
6. each spouse’s relative fault for the breakup of the marriage.
Adultery bars an award of spousal support to an offending spouse, unless the denial of that award will amount to a manifest injustice to that spouse. Manifest injustice is a discretionary standard applied by the judge that is generally not disturbed on appeal
How is a spouse’s share of marital property determined?
Memorize this: At an equitable distribution hearing, the court will determine tha value of all property, real and personal, tangible and intangible, acquired during the marriage. It will consider each spouse’s contribution to the accumulation of that property in deciding how the property will be divided.
Generally know this:The division of the marital property shall consider such factors as:
(1) the contributions of each party in the acquisition of the property;
(2) the duration of the marriage;
(3) the ages and mental and physical condition of the parties;
(4) how and when specific items were acquired;
(5) the debts and liabilities of each spouse;
(6) the tax consequences to each party;
(7) the liquid or non-liquid character of the property;
(8) whether either spouse used marital property to commit a violation of the bounds of the marriage, such as adultery; and
(9) such other factors as the court considers necessary and appropriate to reach a fair award
Memorize this: The court may also consider the fault grounds in determining the equitable distribution.
just have an idea of w
