Domestic Relations Flashcards
Marital Agreement must be
in writing and signed by both parties
Marital agreement writing exception
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
Party can waive right to ___ support but may not waive ___support or __
can waive spousal support but not child support or custody
Court may modify spousal support orders to ___, ____, or ____ payment upon petition by ___ party, as circumstances make proper unless parties have ___ ____
increase, decrease or terminate payment upon the petition of either party, as circumstances may make proper unless parties have CONTRACTED OTHERWISE
Will ct modify seperation agreement not incorporated in ct order?
VA cts are reluctant to remake parties’ K even if it was not incorporated into Ct order
Ct can modify child support if
court finds a material change of circumstances
Child support: If ct finds a material change in circumstances, ct wll look to ___ for guidance
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
If ct deviates from child support guidlines, ct must
make written findings supporting its award based on statutory factors
Determining Income: If parent is voluntarily unemployed or underemployed ct may
impute income to that parent
Marital agreement is not enforceable if the person against whom enforcement is sought proves
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
Premarital agreement is not enforceable if
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
Law of what Jx is Prenup Agreement Governed by
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,
Fault grounds for divorce
1) adultery
2) conviction of felony
3) willful desertition
4) cruelty
Willful deserttion requires
actual breaking off of cohabitation and intent to desert in mind of deserter
Willful deserttion: innocent party may be granted absolute decree of divorce after
1 yr from date of abandonment or desertion
Constructive desertion
D’s conduct is so egregious as to warrant her leaving marital home
Cruelty
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
Incarceration fault ground requires
1) conviction occured after marriage
2) sentence to confinement must be over a year
3) cohabitation not be resumed after knowledge of confinement
All grounds of divorce must be
corroborated
Definition of Marital Property (not types)
Property acquired during marriage and titled in name of both parties
3 Forms of Separate Property
A) Property acquired before the marriage and property acquired during marriage by bequest or devise and
B) Proceeds of seperate property as long as it is maintained as seperate property
Factors for Distribution of Marital Property
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
Ct’s In rem jx over divorce
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
In personam jx over spousal support agreement: Ct must have personal jx over D, if not judgment is
void ab initio
Unwed Father’s Right to Visitation
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
No spousal support may be awarded to a spouse who
commits adultery
Exception to No Spousal Support for Alduterous Spouse
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
What must parties do to wiave spousal Support?
Exchange Valuable consideration and incorporate the waiver agreement into a final divorce decree
Child Support agreement may be modified upon showing of
material change in circumstances regarding child’s needs or parents’ financial situation
How can ct alter terms of custody agreement?
upon showing of material change in circumstances + best interest of child
No fault: Divroce based on seperate and apart for 1 yr
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
Seperation agreement and no minor child
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
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
VA statute recognizes that either party may petition the ct for a no fault absolute divorce
When multiple grounds for divorce exist, ground upon which divorce will be granted is
within discretion of ct
What date is valuation of marital property determined on
date of evidentiary hearing on valuation
Separate property
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
Increase in value of separate property due to efforts of other party will be subject to equitable distribution if
those personal efforts contributed to the increase in value
Are personal efforts applied to separate property subject to equitable distribution?
Yes, personal efforts such as labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity directly applied to seperate property
Fault in Determining Spousal Support
Fault by Either party must be considered when determining whether to award spousal support
In granting/Denying spousal support request, ct must accompany judgment with
written findings and conclusions of ct identifying the
1) STATUTORY FACTORS that support the ct’s order and
2) PROVIDE AN EXPLANATION of its resolution of any significant underlying factual disputes
Income Shares Method for Child Support detemrination
total monthly child support amount divided btwn parents in same proprtion as their monthly gross incomes bear to their monthly combined gross income
What KIND OF INCOME considered in calculating Parent’s Gross Income?
all income from all sources is considered, including spousal support
there is rebuttable presumption in any proceeding for child support that the amount of child support calculated pursuant to the child support guidelines are
correct
A court may deviate from the application of the child support guidelines only after
making a written finding that the application of the guidelines would be unjust or inappropriate.
Test for child visitation
Whether child’s best interests are achieved
Even if ct order did not so provide, Implicit in a Legal Custody Order is
A right to visitation with child even if the order did not so provide.
For grandparent to obtain visitation rights, they must prove
by clear and convincing evidence that it would cause actual harm to child’s health or welfare without such visitation
If grandparent does so, they must prove
by preponderance of the evidence whether visitation would be in child’s best interest
Ct has subject matter jx over custody hearings and may enter or modify custody orders if VA is
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
UCCJEA
Vests exclusive jurisdiction for child custody litigation in the courts of
child’s home state
Primacy of Parent Child Relationship vs 3rd person
Virginia courts are required by statute to “give due regard to the primacy of the parent-child relationship,”
Spousal support terminates upon
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.
Spousal support will also terminate if
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.
Grounds for annulment of marriage
1) One spouse had been convicted of a felony w/o other’s knowlegde
2) Spouse was w/ child by a person other than the other spouse or had conceived a child born to a person other than the other spouse within 10 months after the date of the solemnization of the marriage
3)one spouse was under 18 and no parental consent
4)Prositution
5) incest
6) One spouse was legally married to someone else at the time of marriage, resulting in bigamy
7) One spouse wasnt able to mentally understand marriage
