Domestic Relations Flashcards
Annulment
The legal determination that a marriage did not exist.
Void Marriage
A marriage that has no legal effect.
What are the impediments that result in a void marriage?
- Lack of proper license and solemnization;
- Bigamy;
- Consanguinity or affinity;
- Nonage (underage without the required consent)
Voidable Marriage
A marriage that is valid unless annulled by the aggrieved party.
What happens if a voidable marriage is confirmed by the aggrieved party?
The validity of the marriage may not be questioned or attacked by any person.
What are the impediments that can make a marriage voidable?
- Mental incapacity or infirmity;
- Fraud or duress;
- Natural or incurable impotency existing at the time of marriage;
- A felony conviction of either party without the other party’s knowledge;
- Pregnancy by another man at the time of marriage, without the husband’s knowledge;
- Husband fathering a child with another woman within 10 months after marriage, without wife’s knowledge;
- Either party having been a prostitute prior to marriage, without the other party’s knowledge
A marriage is voidable if a husband fathers a child with another woman within _____________ after marriage, without wife’s knowledge.
10 months.
Defense against annulment
An annulment may not be obtained if the party seeking annulment has cohabited with the other after knowledge of the facts giving rise to the grounds for annulment.
What is the statute of limitations for filing for annulment?
An annulment may not be granted if the parties had been married for at least two years prior to filing.
A party who was 18 or older at the time of marriage may not seek annulment if ______________.
the other party was under 18 at the time of the marriage.
What are the effects of annulment regarding alimony and property division?
The court may divide property and/or order support as in divorce cases.
What is the legitimacy status of children from annulled marriages?
Children are considered legitimate.
Divorce
A legal termination of a marriage that did exist.
What is the general principle of property division in divorce?
Equitable Distribution
What constitutes separate property?
- All property, real or personal, acquired by either party before the marriage;
- All property acquried during the marraige by bequest, devise, descent, survivorship, or gift from a source other than the spouse;
- All property acquired during marriage from property maintained as separate property; and
- Any other property classified as separate by the court.
What constitutes marital property?
- All property titled in both parties’ names;
- All property acquired by each party during the marriage that is not separate property; and
- Any other property classified as marital by the court.
Marital property is determined as of _________.
the date of the last separation of the parties.
Commingled Property
Separate property that has been mixed or combined with marital property to the point that it becomes difficult to distinguish one from the other.
Commingled property will remain separate only…
to the extent it can be traced by a preponderance of the evidence (usually via detailed records, such as bank statements or receipts), and if it was not a gift.
Equitable Distribution Factors
- Contributions to the family and marriage (financial and non-financial);
- Length of the marriage (generally, longer = more equal split);
- Age and health of spouses;
- Circumstances of marriage dissolution;
- Character of the property
- Debts and liabilities; and
- Any other factors deemed necessary or appropriate by the court in order to arrive at a fair and equitable monetary award.
Does Virginia recognize marriages entered into prior to the dissolution of an earlier marriage of one of the parties?
No.
Does Virginia recognize common law marriage?
No.
Grounds for Divorce
Adultery;
Felony;
Cruelty;
Desertion;
Separation
Divorce for Adultery
In Virginia, adultery constitutes grounds for divorce, but requires:
- corroboration of evidence of one spouse having intimate relations with a party outside the marriage; and
- both spouses do not voluntarily live together after knowledge of the adultery.
The filing spouse must file for divorce within __________ of learning about the adultery.
5 years
Divorce for Felony
A spouse can file for divorce in Virginia if:
- the other spouse is convicted of a felony after the marriage;
- the conviction results in confinement for at least one year; and
- the spouses do not continue to live together after one spouse learns of the other’s confinement.
Divorce for Cruelty
An individual can file for divorce for cruelty if:
- the spouse’s conduct causes bodily harm or fear of bodily harm; and
- makes living together unsafe.
Conduct resulting in mental anguish and repeated neglect may constitute cruelty if it makes the marriage intolerable.
Divorce for Desertion
A breach of matrimonial duty that requires:
- a showing of the actual breaking off of the matrimonial cohabitation; and
- coupled with an intent to desert in the mind of the deserting party.
A party is entitled to a divorce based on willful desertion or abandonment after one year from the date of desertion.
Matrimonial Cohabitation
sexual relations, continuing cohabitation, and carrying out of mutual responsibilities of the marital relationship.
Constructive Desertion
When one spouse’s misconduct forces the other spouse to leave the marital home, effectively abandoning the marriage. This means that even though the spouse accused of desertion did not physically leave, their behavior made it impossible for the other spouse to continue living in the marriage.
Factors to consider for constructive desertion
emotional and physical abuse, withholding affection and intimacy, refusal to provide financial or emotional support.
Where sexual privileges are willfully withdrawn, desertion does not require…
the breach and neglect of all martial duties but only the breach of other significant duties.
Separation, No Children
Can file for divorce after living separately for 6 months, if both spouses enter into a separation agreement establishing how property will be divided.
Separation with Minor Children
Can file for divorce after living separately for 1 year, if both spouses enter into a separation agreement establishing how property will be divided.
Which courts have jurisdiction over custody and child support orders?
The Juvenile & Domestic Relations District Court and Circuit Court
What happens, with respect to jurisdiction, after a Juvenile Court issues a custody or support order?
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.
Even if the matter had been set for a hearing, the Juvenile Court continues to have jurisdiction to enforce its valid orders prior to the entry of a conflicting order of the circuit court.
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 what?
a modification rather than a de novo review of a custody determination.
Child Custody Standard
Best Interests of the Child
In determining custody, the court must give primary consideration to the best interests of the child.
Relevant Factors for Best Interests of the Child
- Age and needs of the child;
- Existing relationship between each parent and the child;
- Role each parent has played in the child’s upbringing;
- Propensity of each parent to actively support the child’s contact with the other parent;
- The willingness of each parent to maintain a close and continuing relationship with the child.
property settlement agreements
Settlements agreements for the purpose of settling the rights and obligations of either or both spouses.entered into by competent parties upon valid consideration for lawful purposes
These agreements are generally upheld unless there is clear evidence of illegality.
What is required for a settlement agreement to be enforceable?
It must be in writing unless certain conditions are met
The conditions include being contained in a court order or being recorded by a court reporter.
What are the two exceptions to the requirement for a written settlement agreement?
- Contained in a court order endorsed by counsel or the parties
- Recorded and transcribed by a court reporter and affirmed by the parties on the record personally
True or False: Oral modifications of Property Settlement Agreements are binding without a court order.
False
Oral modifications require a court order to be enforceable.
Arrerages
Past-due payments, if a person fails to pay court-ordered support, contractual support, or support agreed to in writing.
What is spousal support awarded based on?
Statutory factors, including:
- significant hardship;
- the incomes and financial needs of both parties;
- the duration of the marriage;
- the standard of living established during the marriage;
- decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential
Contempt of Court
Willful disregard of a direct court order, such as failure to comply with support payments
What remedies are available for contempt of court?
Fines or incarceration at the court’s discretion
A spouse is likley eligible for spousal support (alimony) if:
- There is a demonstrated financial need;
- The other spouse has the ability to pay;
- The marriage and contributions justify it.
Spousal Support Modification
Unless agreement does not provide for, spousal support may be modified upon a material change in circumstances (income, health, etc.).
Child Support Modification
Can be modified if:
- A material change in circumstances occurs; and
- The change is in the best interests of the child.
