Domestic Relations Flashcards
License Marriage
(1) apply for license from the clerk, deputy clerk, or judge of a circuit court of any county/city; (2) be 18 years or older
When must solemnization occur
Within 60 days of the issuance of the marriage license
Exceptions to confidential communications
(1) adverse parties (2(a)) crime or tort against the other spouse or (2(b)) crime or tort against the minor child of either spouse
How does a marriage end
(1) divorce (2) annulment (3) death
Who has jurisdiction over domestic relations matters
Circuit courts
Annulment
Voids a marriage and declares it has having never been valid, grounds for annulment must exist at the time of entry into the marriage
What are void marriage
Bigamy, Incest, Nonage
Define Enoch Arden statute
Defense to bigamy where the defendant can demonstrate one of the following (1) spouse of the first marriage has been absent for 7 years and is not known to the spouse seeking remarriage to have been living during that time (2) party remarrying reasonably believed in good faith the first spouse is dead (3) first marriage was void
Who bears the burden of proof in bigamy action
Person attacking the marriage, the second marriage is presumed to be valid
Voidable Marriages
One spouse seeks to legally void the marriage through a judicial decree.
What makes a marriage voidable
(1) fraud/duress; (2) mental incapacity/infirmity; (3) intoxication; (4) felony conviction; (5) impotency; (6) concealed parenthood; (7) prostitution
What happens if a party files for a fault divorce and, while the suit is pending, the parties satisfy the grounds for a no-fault absolute divorce?
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.
When is the value of the marital property determined
At the date of the evidentiary hearing, can be changed upon the motion of either party
What is included in separate property
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.
What happens when separate property increases in value during teh marriage
When the increase is 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. Only the increase in value is subject to equitable distribution; the original value of the property remains separate property.
What precludes spousal support
Adultery, sodomy, or buggery unless denial of spousal support would constitute a manifest injustice based on the degree of fault during the marriage and their relative economic circumstances
How is child support calculated
The total monthly child support amount is divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. In calculating a parent’s gross income, generally all income from all sources is considered, including spousal support. There is a rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines is correct.
When can a court deviate from the child support guidelines
When they make a written finding that following the guidelines would be unjust or inappropriate
What is the process for equitable division
The court (i) determines the ownership and worth of all property, (ii) determines whether all property is marital or separate, or what portion is part-marital or part-separate, (iii) uses the statutory factors to determine how to divide the marital property, and (iv) awards jointly owned marital property and debts to each spouse and, if appropriate, grants a monetary award (payable in lump sum or periodically) to one spouse to obtain the desired percentage split after it transfers the marital property. Generally, a court’s equitable distribution award is considered final and may not be later modified or re-opened.
When can a court modify child support payments
Upon a showing of a material change in circumstances that are neither voluntary nor foreseeable (discussed above).
What is the evidentiary standard for spousal support when there has been adultery
Clear and convincing evidence
When is a premarital agreement enforceable
When there was a fair and reasonable disclosure of the financial situations of the party, or a voluntary waiver of such disclosure, and the parties voluntarily entered into the agreement
Are professional degrees and licenses property to be divided
No
