Domestic Relations Flashcards
Where the parties have a minor child, in order to divorce, they must demonstrate that they have…
…lived separate and apart without any cohabitation and without interruption for one year.
[J22]
A party is entitled to a divorce based on willful desertion or abandonment after…
…one year from the date of such act.
Desertion is a breach of matrimonial duty that requires a showing of the actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party.
Matrimonial cohabitation refers to sex, continuing cohabitation, and carrying out of mutual responsibilities of the marital relationship. [J22]
Constructive desertion generally can be established by…
…cruelty on the part of one spouse that justifies the other spouse’s decision to discontinue marital cohabitation. However, in Rowand v. Rowand, 215 Fa. 344 (1974), the Virginia Supreme Court held that a spouse may be free from legal fault in breaking off cohabitation even where the other party’s conduct falls short of constituting a grounds for divorce (e.g., cruelty). [J22]
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…
…a modification rather than a de novo review of a custody determination. Here, nothing in the facts indicate that the parties’ circumstances have changed since the Juvenile Court entered the custody order. [J22]
If the court determines there is a change of circumstances, it should apply the…
…best interests factors set forth in the statute. The most relevant factors are discussed below.
-Age and needs of the child;
-The existing relationship between each parent and the child;
-The role that each parent has played in the upbringing;
-The propensity of each parent to actively support the child’s contact with the other parent; and
-The willingness of each parent to maintain a close and continuing relationship with the child. [J22]
The divorce ground of cruelty typically requires…
…physical harm and on more than just one occasion. [F16]
Condonation is…
A defense against a fault ground for divorce that must be specifically pleaded. [F16]
Spousal support factors
(Need not fault)
- The age and physical and mental conditions of the parties
- The education and training of the parties, and their ability and opportunity to obtain education and training
- The earning capacity, obligations, needs and financial resources of the parties (including pension, profit-sharing, or retirement plans)
- The contributions (monetary and nonmonetary) each party made to the family
- The property interests of the parties (including separately owned real and personal property and tangible and intangible property)
- provisions made regarding the marital property (that is, the results of the equitable division of property)
- The tax consequences to each party
- The standard of living established during the marriage
- The duration of the marriage
- Other relevant factors
Adultery is an absolute bar to alimony unless bar would result in a manifest injustice. Cruelty and abandonment can be bars. [F16]
The increase in value of separate property is marital property to the extent that…
marital funds (joint account) increased the value of the property. [F16]
Divorce jx
Virginia courts can grant a divorce when one of the spouses is a Virginia domiciliary and has been a bona fide resident of Virginia for at least six months.
If the filing spouse wants any collateral remedies beyond a divorce decree (such as alimony or property division), then the court needs personal jurisdiction over the other spouse. This is sometimes called a divisible divorce. [J17]
Separation agreement v. divorce decree.
Even where a separation agreement was not incorporated into the divorce decree, a separated party may institute a suit for breach of contract or specific performance of the agreement. [J17]
Implicit in a joint custody order is…
…the right to visitation.
A criminal conviction does not interfere with this right without a further finding of best interests by a court. [F17]
Where fit parents object to an order granting a right of visitation to Grandmother…
…before application of the “best interests of the child” test, Grandmother must prove by clear and convincing evidence that it would cause actual harm to Junior’s health or welfare without such visitation.
If Grandmother does overcome that burden, then she has the burden of proving by a preponderance of the evidence whether and what visitation is in Junior’s “best interests”. [F17]
Third party custody.
Presumption in favor of parents, but third persons with a legitimate interest may be awarded custody.
Five factors which rebut that presumption:
[1] parental unfitness;
[2] a previous order of divestiture (granting the third party custody);
[3] voluntary relinquishment;
[4] abandonment;
[5] and a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent.
Once the presumption is rebutted, best interests test by preponderance of the evidence. [J18]
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
The UCCJEA vests exclusive jurisdiction for child custody litigation in the courts of 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).
Another state may be more appropriate due to termination of connections with the former home state, or no home state. [J18]
A no fault divorce may be granted if…
the parties lived separate and apart for a period in excess of 1 year without cohabitation and without interruption, with the intent of at least 1 of them that the separation be permanent.
Sex does not reset the clock unless there is intent to resume cohabitation. [F18]
Divorce should be filed in…
the CC of the county/city where: (1) couple last cohabited together as husband and wife, or (2) non-filing party resides in VA [F18]
Court ‘s authority to award or modify spousal support is governed by the property settlement agreement where…
It is signed (effecting waiver of right to claim future support) in exchange for valuable consideration and was incorporated within the parties’ final divorce decree, becoming a term of the decree. Unless fraud or unconscionable.
The parties’ agreement may govern the property and other rights of the parties, but the agreements take subject to the Courts right to make a child support award in the appropriate case notwithstanding an agreement to the contrary. The Court retains continuous jurisdiction to change or modify its order relating to care and maintenance of a child. [F19]
Where one of the parties to a marriage is already married, the marriage is…
…void without any further proceeding.
How to establish paternity?
Paternity must be established by clear and convincing evidence.
Evidence of paternity:
- open cohabitation with mother
- designation on birth record
- approved use of surname
- government documentation claiming paternity
- express admission
- implied admission (e.g. support payments)
- scientific testing
- prior judicial determination
No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized unless, within one year of the date of the death of such parent (i) an affidavit by such child or by someone acting for such child alleging such parenthood has been filed in the clerk’s office of the circuit court of the jurisdiction wherein the property affected by such claim is located and (ii) an action seeking adjudication of parenthood is filed in an appropriate circuit court.
Does VA recognize a presumption in favor of the mother for awarding custody?
No. [J21]
