Domestic Relations

Question 1

Marital Agreement must be

Answer 1

in writing and signed by both parties

Question 2

Marital agreement writing exception

Answer 2

1) oral seperation agreements

memorialized in a ct order endorsed by counsel or

2) a record made by a ct reporter at a deposition or elsewhere

and personally affirmed by parties on the record

Question 3

Party can waive right to ___ support but may not waive ___support or __

Answer 3

can waive spousal support but not child support or custody

Question 4

Court may modify spousal support orders to ___, ____, or ____ payment upon petition by ___ party, as circumstances make proper unless parties have ___ ____

Answer 4

increase, decrease or terminate payment upon the petition of either party, as circumstances may make proper unless parties have CONTRACTED OTHERWISE

Question 5

Will ct modify seperation agreement not incorporated in ct order?

Answer 5

VA cts are reluctant to remake parties’ K even if it was not incorporated into Ct order

Question 6

Ct can modify child support if

Answer 6

court finds a material change of circumstances

Question 7

Child support: If ct finds a material change in circumstances, ct wll look to ___ for guidance

Answer 7

VA child support guidlines which create a rebuttable presumption as to the amount of support, based on te gross income of both parents and number of children

Question 8

If ct deviates from child support guidlines, ct must

Answer 8

make written findings supporting its award based on statutory factors

Question 9

Determining Income: If parent is voluntarily unemployed or underemployed ct may

Answer 9

impute income to that parent

Question 10

Marital agreement is not enforceable if the person against whom enforcement is sought proves

Answer 10

1) she did not voluntarily execute agreement;

2) agreement was unconscionable when it was executed;

3) she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party and did not voluntarily and expressly waive in writing such disclosure beyond disclosure provided

Question 11

Premarital agreement is not enforceable if

Answer 11

1) not voluntary or

2) agreement was unconscionable whne it was executed and before exucution of agreement contesting party was

A) not provided a fair and reasonable disclosure of property or financial obligations of the other party and

B) COntesting party did not voluntarily and expressly waive, in writing, any right to disclosure beyond disclosure provided

Question 12

Law of what Jx is Prenup Agreement Governed by

Answer 12

validity of agreement is governed by laws of jx where agreement was executed, unless substantive law of that jx is contrary to VA’s established policy

or unless parties clearly intended for prenup to be governed by laws of a specific jx,

Question 13

Fault grounds for divorce

Answer 13

1) adultery
2) conviction of felony
3) willful desertition
4) cruelty

Question 14

Willful deserttion requires

Answer 14

actual breaking off of cohabitation and intent to desert in mind of deserter

Question 15

Willful deserttion: innocent party may be granted absolute decree of divorce after

Answer 15

1 yr from date of abandonment or desertion

Question 16

Constructive desertion

Answer 16

D’s conduct is so egregious as to warrant her leaving marital home

Question 17

Cruelty

Answer 17

acts that tend to cause bodily harm and render spouses’ living together unsafe
Mental or verbal cruelty alone is not a ground for divorce in VA. Hwoever, if conduct is such that it affects and endangers physical health of divorce seeking spouse, it may be sufficient to establish grounds for divorce

Normally, rude words will not suffice

Question 18

Incarceration fault ground requires

Answer 18

1) conviction occured after marriage

2) sentence to confinement must be over a year

3) cohabitation not be resumed after knowledge of confinement

Question 19

All grounds of divorce must be

Answer 19

corroborated

Question 20

Definition of Marital Property (not types)

Answer 20

Property acquired during marriage and titled in name of both parties

Question 21

3 Forms of Separate Property

Answer 21

A) Property acquired before the marriage and property acquired during marriage by bequest or devise and

B) All property acquired during marriage in exchange for or

C) Proceeds of seperate property as long as it is maintained as seperate property

Question 22

Factors for Distribution of Marital Property

Answer 22

1) contributions of each party in acquisition of property

2) duration of the marriage

3) age and mental/physical conditions of parties

4) how and when specific items were acquired

5) debts and liabilities of each spouse

6) tax consequences of ech party

Question 23

Ct’s In rem jx over divorce

Answer 23

ct’s jx to hear divorce when one of parties was bona fide resident of Comm at time of suit and had been for at least 6 months prior

Question 24

In personam jx over spousal support agreement: Ct must have personal jx over D, if not judgment is

Answer 24

void ab initio

Question 25

Unwed Father’s Right to Visitation

Answer 25

Father has substantive due process right under constitution to have contact w his child

However right exists only if father demonstrates a commitment to responsibilities of parenthood

Question 26

No spousal support may be awarded to a spouse who

Answer 26

commits adultery

Question 27

Exception to No Spousal Support for Alduterous Spouse

Answer 27

Ct determines from clear and convincin evidence that denial of spousal support to guilty party would constitute a manifest injustice based on spouses’ respective degrees of fault during the marriage and their relative econ circumstances

Question 28

Spousal Support can be waived if

Answer 28

in exchange for valuable consideration and agreement is incorporated into final divorce decree

Question 29

Child Support agreement may be modified upon showing of

Answer 29

material change in circumstances regarding child’s needs or parents’ financial situation

Question 30

How can ct alter terms of custody agreement?

Answer 30

upon showing of material change in circumstances + best interest of child

Question 31

No fault: Divroce based on seperate and apart for 1 yr

Answer 31

an absoluet divorce may be decreed upon the application of either party if spouses have lived seperate and apart w/o any cohabitation and w/o interruption for one yr

Question 32

Seperation agreement and no minor child

Answer 32

If parties have seperation agreement and no minor children, an absolute divorce may be decreed upon application of either parties who have lived seperate and apart for 6 months

Question 33

If party has filed suit for divorce based on fault grounds and while suit is pending, parties have satisfied grounds for no fault absolute divorce

Answer 33

VA statute recognizes that either party may petition the ct for a no fault absolute divorce

Question 34

When multiple grounds for divorce exist, ground upon which divorce will be granted is

Answer 34

within discretion of ct

Question 35

What date is valuation of marital property determined on

Answer 35

date of evidentiary hearing on valuation

Question 36

Separate property

Answer 36

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 of property’s value

Question 37

Increase in value of separate property due to efforts of other party will be subject to equitable distribution if

Answer 37

those personal efforts contributed to the increase in value

Question 38

Are personal efforts applied to separate property subject to equitable distribution?

Answer 38

Yes, personal efforts such as labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity directly applied to seperate property

Question 39

Fault in Determining Spousal Support

Answer 39

Fault by Either party must be considered when determining whether to award spousal support

Question 40

In granting/Denying spousal support request, ct must accompany judgment with

Answer 40

accompany judgment w written findings and conclusions of ct identifying the statutory factors that support the ct’s order and provide an explanation of its resolution of any significant underlying factual disputes

Question 41

Income Shares Method for Child Support detemrination

Answer 41

total monthly child support amount divided btwn parents in same proprtion as their monthly gross incomes bear to their monthly combined gross income

Question 42

How is Parent’s Gross Income calculated?

Answer 42

all income from all sources is considered, including spousal support

Question 43

there is rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines are

Answer 43

correct

Question 44

 A court may deviate from the application of the child support guidelines only after

Answer 44

making a written finding that the application of the guidelines would be unjust or inappropriate.

Question 45

Test for child visitation

Answer 45

Whether child’s best interests are achieved

Question 46

Even if ct order did not so provide, Implicit in a Legal Custody Order is

Answer 46

A right to visitation with child even if the order did not so provide.

Question 47

For grandparent to obtain visitation rights, they must prove

Answer 47

by clear and convincing evidence that it would cause actual harm to child’s health or welfare without such visitation

Question 48

If grandparent does so, they must prove

Answer 48

by preponderance of the evidence whether visitation would be in child’s best interest

Question 49

Ct has subject matter jx over custody hearings and may enter or modify custody orders if VA is

Answer 49

1) child’s home state and has been the home state for period of 6 months or sinxe birth if child is less than 6 months old or

2) was child’s home state in past 6 months and child is absent from home state, but one of parents continues to live in the state

Home state is where child lived w parent for at least 6 consecutive months immediately before commencemnet of child custody hearing

Question 50

UCCJEA
Vests exclusive jurisdiction for child custody litigation in the courts of

Answer 50

child’s home state

Question 51

Primacy of Parent Child Relationship vs 3rd person

Answer 51

Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,”

Question 52

Spousal support terminates upon

Answer 52

1) the remarriage of the supported spouse,
2. death of the supported spouse, or
3. death of the paying spouse, unless the parties stipulate or agree otherwise.

Question 53

Spousal support will also terminate if

Answer 53

the supported spouse habitually cohabits 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.