Domestic Relations

Question 1

Arrearages

Answer 1

Arrearages will be assessed for court ordered awards or for contractual obligations or as the partied have agreed and reduced in writing when the payor has not paid accordingly.

Question 2

Spousal support

Answer 2

Spousal support is awarded according to several factors under Virginia law, including significant hardship, and may be changed upon a showing of a material change in circumstances.

In considering spousal support, a court will look to the existing assets of each spouse, employment of each spouse and relative earning potential, the standard of living that the marriage afforded each spouse, the duration of the marriage, any existing health or extreme financial challenges of each spouse, and 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.

Question 3

Modifying child support

Answer 3

Child support may be modified based on the best interests of the child and a showing of a material change of circumstances.

Question 4

Contempt

Answer 4

Contempt of court is appropriate to enforce a direct court order. It generally allows for fines and incarceration as the court deems appropriate when a willful disregard has been shown for the authority of the court. It is generally considered a punitive remedy useful for the court to assert its authority.

Question 5

Grounds for annulment

Answer 5

Void marriage - mnemonic BIN
(1) Prior existing marriage - bigamy
(2) Incest
(3) Nonage

Voidable marriage
(1) Fraud or duress
(2) Mental incapacity or infirmity
(3) Intoxication
(4) Felony conviction
(5) Impotency
(6) Concealed parenthood
(7) Prostitution

Question 6

Void marriage - prior existing marriage

Answer 6

If either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, the latter marriage is void.

Defenses
(i) The spouse of the first marriage has been absent for seven years and is not known to the spouse seeking remarriage to have been living during that time;
(ii) The party remarrying reasonably believed in good faith that the first spouse is dead; or
(iii) The first marriage was void.

Presumption of validity
There is a rebuttable presumption that the second (or latest) marriage is valid. The party who attacks the second marriage has the burden of producing evidence of its invalidity

Question 7

Void marriage - incest

Answer 7

Incest is marriage or sexual relations between people related within the prohibited degree of kinship.

In Virginia, marriages between ancestor and descendant or siblings are prohibited, whether the relationship is by whole blood, half blood, or adoption.

Marriages between uncle or aunt and nephew or niece are prohibited if the relationship is by whole blood or half blood.

Virginia does not prohibit marriages between first cousins.

Question 8

Void marriage - nonage

Answer 8

A person may marry after turning 18 or being declared an emancipated minor.

If either or both of the parties are under 18 and have not been emancipated, the marriage is void from the time it is so declared by a decree of divorce or nullity.

If one party was capable of consent at the time of the marriage, that party cannot sue for annulment based on the other party’s being underage.

Question 9

Voidable - fraud or duress

Answer 9

Fraud must go to the essence of the marriage

Question 10

Voidable - felony conviction

Answer 10

A felony conviction of either spouse can be grounds for an annulment only when (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.

Question 11

Voidable marriage - impotency

Answer 11

A marriage is voidable if one party is “naturally and incurably” impotent at the time of entering into the marriage contract, unless the other party knew of the condition before the marriage.

Question 12

Voidable marriage - concealed parenthood

Answer 12

A marriage is voidable if either spouse, at the time of marriage, was pregnant by some person other than the other spouse without the spouse’s knowledge.

A marriage is also voidable if a spouse conceived a child born to a person other than the spouse within 10 months after the date of marriage without the spouse’s knowledge.

Question 13

Voidable marriage - prostitution

Answer 13

A marriage is voidable if either spouse was a prostitute prior to the marriage and the other spouse was unaware of the prostitution at the time of marriage.

Question 14

Date of determining marital property

Answer 14

Marital property is determined as of the date of the last separation of the parties

Question 15

Marital property

Answer 15

In determining a share of marital property, a court must determine the value of all property, real and personal, tangible and intangible, acquired during the marriage.

The value of the property shall be determined on the date of the equitable distribution hearing.

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.

Question 16

Jurisdiction for child support and custody

Answer 16

The Juvenile & Domestic Relations District Court and Circuit Court have concurrent jurisdiction over custody and child support orders.

After a Juvenile Court issues a custody or support, it is divested of jurisdiction when a party files a suit for divorce asking for custody and support to be decided but only after a hearing is set by the circuit court for a date certain or the matter is on the motions docket to be heard within 21 days of filing.

Where a Juvenile Court has properly issued a custody order, a subsequent request for a custody order accompanying a suit for divorce in Circuit Court should be treated as a modification rather than a de novo review of a custody determination.

Question 17

Grounds for divorce

Answer 17

Fault
(1) Adultery
(2) Felony conviction
(3) Cruelty
(4) Willful desertion and abandonment
(5) Constructive desertion

No-fault

Note: Irreconcilable differences is not a ground for divorce in Virginia

Question 18

Adultery

Answer 18

Adultery may be found where a spouse cheats on another, so long as the other spouse does not resume cohabitation after learning of the adultery, or recriminate by committing adultery of their own.

There is no waiting period required for adultery; upon proof of adultery, the court can grant an immediate divorce.

Adultery must be proved by clear and convincing evidence.

Question 19

Cruelty

Answer 19

A one year period of physical separation is required to finalize the divorce.

The standard of proof is a preponderance of the evidence.

Cruelty requires acts that tend to cause bodily harm.

Question 20

Willful desertion of abandonment

Answer 20

A one year period of physical separation is required to finalize the divorce.

The standard of proof is a preponderance of the evidence.

Question 21

Constructive desertion

Answer 21

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.

Question 22

No fault

Answer 22

Where the parties have a minor child, they must demonstrate that they have lived separate and apart without any cohabitation and without interruption for one year.

If there are no children and the parties have a separation agreement, a divorce may be decreed if the parties have lived separate and apart for 6 months, without cohabitation or interruption.

For separation, intent of at least one person has to be that separation would be permanent.

Question 23

Presumption for custody

Answer 23

Virginia has abolished all presumptions in favor of either parent in custody determinations.

However, there is a legal presumption in favor of the natural parents.

Question 24

Waiving right to support

Answer 24

A spouse can waive right to spousal support but cannot waive the child’s right to support or prevent the court from modifying the terms of custody and visitation.

Question 25

UCCJEA

Answer 25

The UCCJEA vests exclusive jurisdiction for child custody litigation in the courts of a child’s home state (the state where the child has lived with a parent or person filling the role of a parent for 6 consecutive months prior to the commencement of the first custody proceeding).

The UCCJEA also establishes a process for determining what court has jurisdiction in the event that another state might be a more appropriate forum (due to termination of connections with the former home state, or no home state), and institutes uniform procedures to enforce child-custody orders across state lines.

Question 26

Custody - third parties

Answer 26

While Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,” third persons with a legitimate interest may be awarded custody upon a showing by clear and convincing evidence that the best interest of the child warrants it.

There is a legal presumption in favor of the natural parents. Factors which rebut that presumption:
[1] parental unfitness;
[2] a previous order of divestiture;
[3] voluntary relinquishment;
[4] abandonment;
[5] and a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent

Question 27

Custody - factors

Answer 27

(1) age and physical and mental condition of the child
(2) age and physical and mental condition of each party
(3) relationship existing between each parent and each child
(4) the needs of the child, including important relationships of the child
(5) role that each party has played and will play in the upbringing and care of the child
(6) propensity of each party to actively support the child’s contact and relationship with the other party
(7) ability of each parent to maintain a close and continuing relationship with the child, and cooperate in and resolve disputes regarding the child
(8) preference of the child
(9) family abuse

Question 28

Visitation

Answer 28

The test for visitation is whether it is in the best interests of the child

Implicit in a grant of joint custody is a right to visitation even if the order did not so provide.

A parent’s criminal conviction does not revoke the custody order nor the right to visitation, unless it is determined at trial that it is not in the child’s “best interests” for the parent to have a right to visitation.

Where both fit parents object to an order granting a right of visitation to a third party, then before application of the “best interests of the child” test, the third party must prove by clear and convincing evidence that it would cause actual harm to the child’s health or welfare without such visitation.

If the third party does overcome that burden, then she has the burden of proving by a preponderance of the evidence whether and what visitation is in the child’s “best interests”.

Question 29

Appeals

Answer 29

Appeals from the J&DR Court go to the Circuit Court in the same jurisdiction

Question 30

Separation agreements

Answer 30

Virginia law permits married persons to enter into agreements settling the rights between them, including the right to spousal support, and such agreements become valid, enforceable contracts once reduced to writing and executed by both spouses.

This is true even if the separation agreement is not incorporated into the divorce decree