Domestic Relations Flashcards
Marriage Requirements:
- License by clerk, deputy clerk, or judge of a circuit court; (expires after 60 days if marriage not solemnized); and
- Solemnization (ceremony by someone authorized to perform the wedding) (no residency/witness requirement)
Common Law Marriage
NO COMMON LAW MARRIAGE IN VA, but will recognize Common Law marriage in a another state if its legal there (therefore, can get divorced in VA)
Annulment
Declaration that a marriage is invalid = never existed
Annulment - Void
no judicial intervention required (bigamy + incest)
No spousal support or equitable distribution (except during a pendente lite at the judges discretion).
Annulment - Voidable
Requires judicial decree:
1. Lack of capacity
2. Marriages after July 1, 2016 with an un-emancipated minor
3. Marriages based on undisclosed information (one was convicted of a felony prior to the marriage but never disclosed to other person, or undisclosed prostitution
4. A spouse that gets another (or is pregnant) with other within 10 months of solemnization of the marriage
5. Fraud or duress
–Can request equitable distribution, SS + CS, atty’s fees, costs associated with dissolution of marriage.
Voidable Annulment - If the spouse has cohabitated with the offending spouse AFTER knowledge of the facts, that would have otherwise been grounds for the annulment…
there can be NO annulment.
Voidable Marriage - Defense
- Cohabitation after knowledge of the facts
- Latches - suit must be brought within 2 years of marriage
- Estoppel by conduct
No marriage can be voidable if the marriage has existed for..
At least two years (latches)
Divorce Types: Bed + Board
A. Judicial Separation: Bed and Board -
-Extinguishes each spouses rights in property acquired after separation, no remarriage allowed while spouse is alive, spousal support may be awarded.
Grounds:
1.Willful desertion/abandonment
2. Cruelty, or a reasonable apprehension of bodily harm
-Can be merged into a complete divorce if the parties have been separated for a year + no possible reconciliation.
Divorce Types: Bond of Matrimony
Complete/Absolute divorce:
1. Adultery/Sodomy/Buggery (bestiality)
3. Felony conviction with confinement beyond one year
4. Willful desertion/abandonment/cruelty/reasonable apprehension of bodily harm AFTER one year
5. No fault -
i. Separate and apart for 6 months + separation agreement + without children, or
ii. 1 year living separate and apart if with children.
iii.Separation period need not occur prior to filing, but must be fulfilled before the court can enter a final decree.
-Only disrupted if parties resume cohabitation. Sexual conduct between spouses will not disrupt the separation period if intent to live apart is present.
-Legal separation can be merged into a complete divorce if the parties have been separated for a year.
Defenses to fault-based divorce
Finish this!!
Must be affirmatively pleaded
Recrimination
Collusion
Connivance
Condonation
Statutory Defenses
Divorce - Property Distribution
-Equitable Distribution State
-Not a 50/50 split presumption, considers context =
a. Marital property
b. Separate property
Transmuation
Parties can agree to transform separate property into marital property
Statutory Factors for distribution of marital property
Duration of marriage; contributions to family’s wellbeing, contribution to acquisition, care and maintenance of the property; age, physical, and mental condition of the parties; grounds and fault for divorce; when property was acquired; debts and liabilities of each spouse; tax consequences; dissipation of martial funds in anticipation of divorce, professional goodwill, stock options acquired during marriage even if not exercised until after marriage, etc.
Non-marital property AKA Separate Property
- Property acquired during the marriage by one spouse as a gift or inheritance
- Passive income from, and the increase in value of, separate property
- Real or personal property acquired before the marriage
- Property acquired during marriage in exchange for or from the proceeds of the sale of separate property, if maintained as separate property
Ex: professional licenses/degrees, traceable separate property, a possible future interest in property, social security.
Part-Marital Property and part-separate property
- Substantial increase in the value of separate property due to the personal effects of either party is martial subject to equitable distribution (active appreciation)
- Retirement benefits earned during the marriage - marital share
- Workers comp and personal injury awards that accrued during the marriage.
Marital Debt
-debt incurred in the joint names of the parties before or after marriage;
-in either party’s name after marriage/before permanent separation, unless incurred for a non-marital purpose.
Subject to equitable distribution.
Separate Debt
Debt incurred by either party BEFORE marriage/AFTER permanent separation, unless to benefit the marriage or family
Not subject to equitable distribution
Venue for divorce
- Durational residency requirement - six months before the action
- the city or county where (a) where the parties last cohabited, or (b) at the PLAINTIFF’S option where the D resides in VA, or (c) where the Plaintiff resides, if an order of publication may be used against the defendant.
If the court lacks PJ over the D it can…
grant a divorce and award marital property located in VA, but cannot award spousal or child support OR divide property out of VA.
Spousal Support
Criteria -
Duration of marriage
Standard of living established
Earning capacity
Decision making regarding parenting during the marriage
Monthly or lump sum
Cause of divorce matters. If the spouse committed adultery, the court will bar SS, unless it would constitute a manifest injustice (clear + convincing evidence, based on the varying degrees of fault and economic circumstances of the parties)
Court can go back and revise SS, if there is a substantial change in hardship caused by material circumstances
Child Support
Determined by BIOC
Can be changed if it is in the BIOC + material change in circumstances
Visitation rights cannot be denied for…
nonpayment of support
Child Support - Parental Agreement
Parents can enter into a private agreement regarding child support payments, but cannot agree to a release or compromise that would negatively affect the child’s welfare.
Arrearage
Money that is owed and should have been paid earlier
Spousal Support - cannot be changed between the spouses if the SS is incorporated into the separation agreement/divorce decree, they cannot. Must obtain court approval bc it would be a violation of a court order (penalty for not doing so - imprisonment or additional fines). If responsible spouse did not get court approval, that spouse would have to pay what he owes.
Custody/Visitation Rights
No presumption for either spouse
Every decision is BIOC - Custody considers the age of the child, the child’s relationship to its parents, child’s needs.
Non-marital children may inherit from the father’s estate so long as…
paternity is proved prior to the father’s death
Proving paternity
- reliable genetic testing that affirms 98% probability of paternity
- Voluntarily written statement of the father and mother made under oath acknowledging paternity
- Other evidence: consent to use of surname, open cohabitation, claiming child on govt document
Marital presumption
Child born to married woman is the child of her husband.
Rebutted by a preponderance of the evidence showing another man is the father, impossibility of conception, etc. Burden is on the party claiming illegitimacy
Surrogacy
1.Court approved agreement - intended parents are legal parents
2.If not court approved, parental rights tied with genetics
3. Surrogate can relinquish parental rights to intended parents if at least one intended parent is a genetic parent (without court-approval)
Deviation from child support guidelines
-Rebuttable presumption that the amount calculated pursuant to the guidelines is correct.
-If court deviates, it must make a written finding that application of guidelines would be unjust or inappropriate.
-If parent is underemployed or unemployed, court may impute income to calculate award. Presumptive minimum is $68 a month.
-Cost of providing the child’s medical insurance is part of the child-support award.
Custody - Legal
right of a parent to make major life decisions
Custody - Physical
the right of parent to have a child reside with the patent and the obligation to provide daily care and control of the child
UCCJEA
Prevent jurisdictional disputes on matters of child custody and visitation
-SMJ = home state for 6 months or was the child’s home state in the past 6 months, but a parent or guardian continues to live in the state but the other does not.
-Significant Connection JDX = Can modify/enter order if:
—no other state has or accepts home-state jdx
—the child and 1 parent have connection with state
—in state evidence about the child’s care, protection, training, and relationships
Modification of child custody
Change in circumstances standard + BIOC
1- Relocation = the predominant consideration is the best interests of the child; 30 days advanced written notice to other parent + court
2- Change in custody is generally not granted unless there is a showing that the cohabitation is having an adverse impact on the child
Modification of marital agreements
Valid agreement must be in writing and signed by both parties.
-A provision that prevents modification of property rights, including spousal support, must be enforced
-A provision that prevents modification of the child support is not enforceable.
Putative Father Registry - Adoption
-state-level legal system where a man who believes he may be the biological father of a child born outside of marriage can register his information to be notified if an adoption petition is filed for that child
-Failure to register within 10 days after the birth constitutes a waiver to the right to notice of adoption and. irrevocably implies consent to the adoption.
-Right to object can be denied if the father does not demonstrate a commitment to the responsibilities of parenthood.
Adoption - Involuntary termination of parentage by court
-Abuse, neglect, dependency case, abandonment, termination of parental rights over a sibling, a parent convicted of a felony crime against children, etc.
