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VA Essay Rules > Domestic Relations > Flashcards

Domestic Relations Flashcards

1
Q

A marital agreement, including a separation agreement, generally must…

A

…be in writing and signed by both parties.

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2
Q

A marital agreement is not enforceable if:

A

(1) it was not voluntarily executed; or
(2) it was unconscionable when it was executed

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3
Q

A court will generally enforce an agreement regarding property division or spousal support so long as…

A

… it’s not unconscionable

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4
Q

Provisions in a settlement agreement relating to child support or custody [are/are not] modifiable by the court?

A

are

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5
Q

Regardless of marital status, parents [do/do not] have an obligation to support their children.

A

do (duh)

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6
Q

Absent a court order, an agreement among parties modifying or waiving child support…

A

… is not enforceable.

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7
Q

The court may, on its own motion, on a petition of either of the parents, or on a petition from the Department of Social Services, modify a decree of child support…

A

…as the circumstances of the parents and the benefit of the children may require.

Modifications are permissible upon a showing of a material change in circumstances regarding the child’s needs or parents’ financial situation.

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8
Q

Virginia, absent relocation, retains […] to modify a custody order while the child remains a […]

A

subject matter jurisdiction

minor

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9
Q

A custody or child support order is modifiable upon motion or petition by…

A

a party, a Department of Social Services petition, or the court itself.

The party seeking modification of the order has the burden of proof by a preponderance of the evidence.

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10
Q

In determining whether a change a custody or child support order is warranted, the court must find:

A

(1) a change of circumstances since the most recent custody order; and

(2) that the requested modification of the order is in the best interests of the child.

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11
Q

The court consider several factors in determining the best interest of the child, including:

A

(i) age, physical and mental condition of the child

(ii) the age and physical and mental condition of each parent

(iii) the relationship between each parent and the child

(iv) the needs of the child, giving due consideration to the child’s other important relationships, including siblings, peers, and extended family

(v) the role that each parent has played, and will play in the future in the child’s upbringing and care;

(vi) the propensity of each parent to actively support the child’s contact and relationship with the other party

(vi) the relative willingness and demonstrated ability of each parent to maintain a close continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child

(vii) 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

(viii) any history of family, sexual, or child abuse, or an act of violence, force, or threat that occurred within the 10 years prior to the petition

(ix) such other factors the court deems necessary and proper to the determination.

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12
Q

A decree modifying spousal support [can/cannot] operate retroactively.

A

cannot

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13
Q

To justify a change in spousal support, the court must find:

A

(i) involuntary and unforeseen (ii) material change in the parties’ circumstances.

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14
Q

What factors will the court consider in modifying child support?

A

i) the special needs of the child resulting from any physical, emotional, or medical condition
(ii) the standard of living the child enjoyed during the marriage
(iii) the earning capacity, obligations, financial resources, and special needs of each parent.

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15
Q

Willful failure to pay support for a child or spouse is…

A

… a misdemeanor

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16
Q

Upon the petition of […], Virginia courts can modify spousal support orders to increase, decrease or terminate payment, as the circumstances may make proper, unless […].

A

[either party]

[the parties contracted otherwise]

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17
Q

Fault by either party must be considered (felony conviction, adultery, desertion, or cruelty) by a Virginia court determining whether to award […].

A

spousal support

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18
Q

No spousal support may be awarded to a spouse who […], unless the court determines from […] evidence that denial of spousal support to the guilty party would constitute a […] based on the spouses’ respective degrees of fault and their relative economic circumstances.

A

[adultery]

[clear and convincing]

[manifest injustice]

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19
Q

As part of the equitable distribution of marital property, a Virginia court may…

A

…order the transfer of jointly owned marital property, permit one party to buyout the other’s interest and assume any mortgage or indebtedness secured by that property, or order the sale of the property.

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20
Q

What are the 4 steps of equitable distribution?

A

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.*

*The monetary award comes out of the non-jointly owned marital property.

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21
Q

What conditions can terminate spousal support?

A

(1) **remarriage **of the supported spouse, (2) death of the supported spouse, or (3) death of the paying spouse
(4) supported spouse’s habitual cohabitation with another in a marriage-like relationship when shown by clear and convincing evidence, unless (i) the parties stipulated or agreed otherwise, or (ii) the supported spouse proves by a preponderance of the evidence that termination would be unconscionable.

However, cohabitation by the payee spouse does not automatically terminate spousal support, since it is not remarriage.

22
Q

A Virginia court may deviate from the child support guidelines only after making a…

A

…written finding that the application of the guidelines would be unjust or inappropriate based on the relevant evidence of the particular case based upon enumerated statutory factors.

23
Q

Typically when a court awards primary physical custody of a child to one parent, the noncustodial parent is allowed […].

A

[noncustodial visitation]

Because parents have a constitutional right to have contact with their children, the denial of visitation is very unusual and typically only occurs when visitation would seriously endanger the child’s physical, mental, or emotional health.

24
Q

The U.S. Supreme Court has recognized that an unwed biological father has a […] under the U.S. Constitution to have contact with his child.

A

[substantive due process right]

However, this right exists only if the father demonstrates a commitment to the responsibilities of parenthood.

25
Q

In Virginia, a non-parent requesting visitation in opposition to both of the child’s parents, at least one of whom is fit, must show, by […] evidence, that the denial of visitation would cause […] to the child.

A

[clear and convincing]

[actual harm]

If successful, then the non-parent must also show, by a preponderance of the evidence, that the visitation will serve the child’s best interest.

26
Q

Where/how is JDRC custody determination appealed?

A

Appealable to the Circuit Court within the jurisdiction of which the J&DR court sits.

The appealing party must note the appeal within 10 days after entry (signed by the judge) of the order or judgment being appealed.

The noting of appeal must be in writing and received by the clerk’s office within the 10-day period.

The party must also, within 30 days from the date of the judgment, pay the writ tax and court costs for the circuit court.

27
Q

Virginia [does/does not] recognize a common-law marriage.

A

does not

28
Q

In Virginia, a marriage is bigamous if at the time of the second marriage…

A

…either party is validly married to someone else then living.

29
Q

if either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, the latter marriage is…

A

…void.

30
Q

Is there a presumption in favor of the mother in Virginia?

A

No.

In Virginia, neither parent has a legal presumption favoring them as the custodial parent.

31
Q

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?

A

The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is to **prevent jurisdictional disputes **with courts in other states on matters of child custody and visitation.

32
Q

When does a court have subject matter jurisdiction under the UCCJEA?

A

A court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody orders if the state in which the court sits:

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.

33
Q

How can a third party acquire custody over a child?

A

A third party with a legitimate interest in the child can overcome parental preference when, by clear and convincing evidence, the third party shows that the child’s best interest would be served.

This may occur when the parent (i) is unfit, (ii) lost custody in a prior order, (iii) voluntarily relinquished custody, (iv) abandoned the child, or when (v) the circumstances constitute an extraordinary reason for taking a child from its parent or parents.

34
Q

in a custody dispute between a parent and a non-parent, the law presumes that the child’s best interests will be served when in the custody of its […].

A

[parent]

Generally, parents are entitled to the custody and care of their children and will prevail unless unfit.

35
Q

What are the four fault grounds for divorce?

A

(i) adultery
(ii) conviction of a felony (including discovery of a prior felony conviction of which you were not aware)
(iii) willful desertion
(iv) cruelty

36
Q

What is adultery and how does one acquire a divorce from it?

A

Adultery is voluntary sexual intercourse with someone other than one’s spouse.

Adultery is grounds for granting the innocent party an absolute divorce with no waiting period.

Adultery must be proven by circumstantial evidence that is clear and convincing, based upon proven facts and reasonable inferences drawn therefrom.

37
Q

Does the duty of fidelity continue while parties are separated?

A

Yes.

Even when the adulterer is legally separated, the duty of fidelity continues since the marriage is still in existence and the parties cannot remarry.

38
Q

If a plaintiff sues for divorce on fault grounds, the plaintiff must have […].

A

[clean hands]

Recrimination occurs when both spouses committed a marital wrongdoing of like conduct.

39
Q

Constructive desertion exists when…

A

…one spouse leaves the marital home because the other spouse has committed acts of cruelty toward the spouse.

The spouse who leaves may be granted a divorce based on constructive desertion, even though she is the one who left the marital home.

40
Q

Cruelty is a ground for granting the innocent party an […]

A

…absolute divorce after a period of one year from the date of the act.

To prevail, the innocent party must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and makes the continued cohabitation between the parties unsafe

41
Q

Explain whether mental cruelty alone is sufficient to constitute cruelty.

A

Generally, mrntal cruelty alone is not normally a ground for divorce.

HOWEVER, mental anguish, repeated and unrelenting neglect, and humiliation cam, in sufficient degree, amount to cruelty.

Angry words, coarse and abusive language, and humiliating insults can constitute cruelty when they are significant enough to produce mental suffering sufficient to injure health.

42
Q

A “no-fault” divorce can be obtained if…

A

…the spouses have lived separate and apart without any cohabitation and without interruption for one year.

If the parties have entered into a separation agreement and they do not have minor children, they may obtain a no-fault divorce after they have lived separately and apart without cohabitation and without interruption for six months.

43
Q

Recrimination [will/will not] bar either party from obtaining a no-fault absolute divorce.

A

will not

44
Q

Spousal support is awarded if…

A

…one spouse cannot provide for her own needs.

45
Q

[…] by either party shall be considered when determining whether to award spousal support.

A

Fault

46
Q

No spousal support may be awarded to a spouse who commits adultery unless the court determines from […] evidence that the denial of spousal support would constitute a […] based on the spouses’ respective degrees of […] during the marriage and their relative economic circumstances.

A

[clear and convincing]

[manifest injustice]

[fault]

47
Q

How does a court make an equitable distribution of property?

A

In making an equitable distribution of property, the court will (i) determine the ownership and worth of all property, (ii) determine whether all property is marital or separate, or what portion is part-marital and part-separate, (iii) use a set of statutory factors to determine how to determine percentages to each spouse of the marital property, and (iv) award jointly owned marital property and debts to each spouse and, if appropriate, grant a monetary award to one spouse or the other to get the desired percentage split.

48
Q
A
49
Q

When a divorce decree is granted by a circuit court, that court has ___ over the parties in matters …

A

… personal jurisdiction … relating to the enforcement of its divorce decree.

50
Q

When a husband has a child born to someone other than the spouse within […] of the solemnizarían of the marriage, it is grounds for annulment.

A

[10 months]

51
Q

When there are grounds for annulment, but parties cohabitate after learning of the facts supporting annulment, annulment […] be granted

A

will not

52
Q

When is marital property determined?

A

As of the date of the last separation of the parties

VA Essay Rules (21 decks)

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