Domestic Relations Flashcards
When is separation a means for a divorce? (NO FAULT)
Separation without cohabitation for one year and intent to to be permanent OR six month separation period if separation agreement and no minor children
Defenses to cruelty
Condonation; isolated incidents
How does a spouse gain an interest previously acquired property?
Joint payments; any efforts to increase value (entitled to share of increase)
How does a spouse gain an interest previously acquired property?
Joint payments; any efforts to increase value (entitled to share of increase)
Grounds for void marriage
BIN:
Bigamy; incest; nonage (too young)
Only defenses for bigamy
Good faith belief that (1) prior spouse is dead or (2) first marriage was void. Can only raise if spouse has been absent for seven years
Grounds for voidable marriage
Fraud, Duress, mental incapacity or infirmity, intoxication, felony conviction, impotency, concealed parenthood, and prostitution
What are the fault grounds for divorce?
Adultery/sodomy/buggery; Conviction of a felony; Willful desertion; cruelty
Do sexual encounters interrupt the separation period?
No
Factors for best interest of a child
Age and physical and mental condition of child;
Relationship and role of each parent to child;
Needs of the child;
Child’s preferences (sometimes);
Separation of siblings;
DV
When are a child’s preferences considered
when child is deemed mature by court
When can a Virginia court exercise subject matter jurisdiction over a divorce?
When either party has been a resident for six months immediately preceding the action?
Where is venue proper for divorce?
The County or city (i) where the parties last cohabited, or (ii) at the plaintiff’s option, where the Defendant resides; or (iii) where the plaintiff resides, if an order of publication may be issued against the defendant.
Personal jurisdiction over out-of-state defendant (long-arm statute)
For:
1) Paternity matters where child was alleged to conceive or fathered child in Virginia;
2) Orders to pay support properly granted in Virginia;
3) matrimonial domicile in Virginia;
4) Spousal agreement executed in Virginia
Divisible Divorce doctrine
Court with SMJ and PJ over one spouse can grant a divorce, but cannot determine property division, alimony, or child support issues without PJ over other spouse`
Visitation Rights of Grandparents When Both Parents (or only fit parent) Oppose
must prove by clear and convincing evidence that (1) denial of visitation would cause actual harm to the child; and (2) Child’s best interests
Visitation Right of Grandparents when only one parent opposes
Only child’s best interest needs to be shown
Rights of Unwed Biological Father
fundamental right to contact with his child if he demonstrates a commitment to the responsibilities of parenthood
Appeals from decisions in the Juvenile and Domestic Relations Court are heard where
Circuit Court in the same JX
Standard for Reviewing Spousal Support
Material Change in Circumstances
What is the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act?
Vests exclusive jurisdiction for child custody litigation in the courts of a child’s home state. It also establishes a process for determining what court has JX in the event that another state might be a more appropriate forum, and institutes uniform procedures to enforce child-custody orders across state lines
Where is a child’s home state
the state where the child has lived with a parent or person filling
the role of a parent for 6 consecutive months prior to the commencement of the first
custody proceeding or since birth
Third party rights to custody of children
parents are presumptively entitled to custody of their children in cases against third parties.
Exceptions—the parent is unfit, lost or relinquished custody, or abandoned the child
Where is jurisdiction for a divorce proper?
(i) In circuit court of city or county where parties last cohabitated, where, OR (ii) at the plaintiff’s option, where the Defendant resides in VA, OR (iii) where the plaintiff resides, if an order of publication may be issued against the defendant
Failing to Provide for Spouse in Will
If a testator’s will fails to provide for a surviving spouse who married the testator after the execution of the will, the omitted spouse receives an intestate share of the testator’s estate (either 100% or one-third) unless it appears from the will or from the provisions of a premarital or marital agreement that the omission was intentional
when property is acquired prior to marriage, how is the increase in value of the property distributed in a divorce?
The increase in value goes solely to the spouse who owned the property unless the increase in property value is attributable to the efforts of the other spouse
Spousal Support for Adulterous Spouse
No spousal support for adulterous spouse unless denying support would result in a manifest injustice based on (1) the respective degrees of fault and (2) the economic circumstances
Statutory factors for distribution of marital property
Duration of marriage; Contribution to family; contribution to marital property; age, mental/physical condition of parties; grounds and fault for separation; others
Child’s right to support
Each parent, regardless of marital status, is legally required to support their minor children
Method of Calculating Child Support
Income-shared model - A child should receive the same proportion of parental income as if the parents continued to live together
