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Domestic Relations Flashcards

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1
Q

Ante-nuptial agreements–are they valid?

A

Yes. In VA, valid, but need to comply w/ SOF signed by parties and in writing AND parties must have subsequently married to make agreement valid.

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2
Q

If you have an ante-nuptial agreement, what challenges may be brought if one of the party wants to set aside the agreement after parties are married?

A

Usually it’s the poorer party that challenges. Two ways:

1) Agreement not entered into voluntarily i.e. physical threats, time issues, one party represented and other isn’t, respective bargaining power.
2) K is unconscionable. Substantively unfair terms that shock conscience and PLUS FACTOR: no disclosure of assets, knowledge of assets, or waiver of disclosure.

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3
Q

Can a pre-nup be modified?

A

New amendment in writing signed by both parties.

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4
Q

How do you get married?

A

Ceremonial marriage, which requires:

1) License
2) Go through a ceremony w/ officiant and an exchange of promises.

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5
Q

Why the license requirement for marriage?

A

Allows an official to ensure parties have capacity to marry. Requirements:

1) get from county clerk
2) good for 60 days

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6
Q

Who is a proper officiant?

A

Clergyman or any person authorized to administer oaths or any other person appointed by courts.

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7
Q

What if there is a defect in license or officiant status?

A

If it’s an honest error, you are still married.

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8
Q

What promises must be exchanged?

A

No magic words. You only have to promise to accept the new legal status.

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9
Q

What is a common law marriage?

A

Not accepted in VA, but if couple enters into valid CL marriage in a place where it’s allowed, the marriage is portable.

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10
Q

Two ways to get out of marriage

A

1) Annulment
2) Divorce
* *Difference: annulment based on grounds that pre-date the marriage.

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11
Q

What are the two kinds of annulment?

A

Some grounds void the marriage and others make it voidable.

1) If marriage is void, you aren’t married. But you can get an optional annulment for clarity AND to resolve collateral issues. If marriage is voidable, you’re married until you get annulment.
2) A ground that makes marriage void can’t be waived; voidable is waivable.

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12
Q

What are grounds that make marriage void?

A

1) bigamy
2) 1 party is underage 18–if 16+, you can get married w/ 1 parent’s consent; if under 16, can get married w/ consent and woman pregnant
3) incest–can’t marry ancestors, descendants, siblings (regardless of adoption), or lineal relatives up or down a generation (aunt/niece).
4) same-sex, but this is in a state of flux.

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13
Q

What grounds make a marriage voidable?

A

1) duress–must marry of own free will; waive this ground if continue to live w/ and have sex w/ spouse
2) mental incapacity at time of marriage–need to litigate this via guardian if dementia,
3) incurable impotency–if you can’t have sex, can’t get married, but if intimate before wedding night, can’t assert this ground
4) fraud–prior to marriage 1 party misrepresents or conceals from other facts that “go to an essential aspect of marriage” i.e. discretion.

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14
Q

What is automatically a grounds for fraud?

A

1) not disclosing a felony conviction
2) carrying another man’s child or impregnating another woman w/in 10 mos. at time of marriage
3) previous work as a prostitute
* *Judges have added misrepresentation concerning religion, lying about procreation or sex, but can argue these. Lying about money, property, or social status not grounds for annulment.

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15
Q

Where do you go to get a divorce?

A

Chancery side of circuit court. Divorce is an equitable remedy. Go to family court if exists.

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16
Q

When does court have SMJ over divorce?

A

At least one spouse is domiciled in VA and has been a resident for 6 mos. Doesn’t matter that other spouse has no contact w/ VA.

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17
Q

Why doesn’t there need to be PJ over both spouses?

A

Marriage is treated as though it is in rem i.e. physically present wherever spouses are.

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18
Q

What remedies are available if there is no PJ over one spouse?

A

Court can dissolve marriage but no collateral remedies.

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19
Q

What venue is appropriate for divorce cases?

A

Preferred venues are:

1) last place where spouses lived together and had a home
2) wherever D lives if lives in state
3) wherever P lives if D doesn’t live in state
* *If no one objects, it doesn’t matter that you get this wrong.

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20
Q

What are the two kinds of divorce?

A

Divorce a mensa et thoro: legal separation that leaves the marriage intact.
Divorce a vinculo matrimonii: legal divorce that ends the marriage.

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21
Q

What are the fault based grounds for divorce in VA?

A

1) Adultery, sodomy, or buggery w/ someone other that his spouse. Must prove by clear and convincing evidence w/in 5 years of adultery.
2) Spouse convicted of felony w/ greater than 1 year sentence.
3) Cruelty or Dessertion

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22
Q

What is cruelty?

A

1) Domestic violence
2) Mental cruelty–persistent course of conduct that endangers life or health or makes life unbearable. This is subjective.

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23
Q

What is dessertion?

A

Unjustified termination of marital cohabitation for at least 1 year. If you move out because of violence, not a problem.

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24
Q

What are defenses to fault based divorce?

A

1) Condonation: knowledge of misconduct followed by forgiveness followed by resumption of sexual relations. Wrongdoer must give up the bad conduct.
2) Connivance: corrupt consent (like entrapment). P spouse lured D spouse into committing misconduct.
3) Recrimination: claim by D spouse that P spouse is committing misconduct too.

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25
Q

What is no fault divorce?

A

If both parties want to divorce and they have no kids, they must enter into separation agreement and live separate and apart for 6 mos.
If only one party wants a divorce or if both want divorce but there are kids, they have to live separate and apart for one year, but no separation agreement needed.

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26
Q

In the separation period of a no fault divorce, what restarts the clock?

A

Can’t have sex w/ spouse or it resets the clock.

Can’t have sex w/ others or it’s adultery.

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27
Q

Why get a legal separation rather than a divorce?

A

1) Practical considerations–health insurance, tax benefits, etc.
2) Moral considerations i.e. marriage is forever.

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28
Q

Grounds for divorce a mensa et thoro?

A

1) Cruelty and reasonable apprehension of bodily harm.
2) Dessertion for any period of time.
* *This can be revoked or you can petition court to give a divorce a vinculo matrimonii after a certain period.**

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29
Q

In dividing up spousal property, what is equitable distribution?

A

1) Go through every asset couple owns and categorize the assets.
2) Distribute assets.

30
Q

What are the three categories of property?

A

1) Husband’s separate property.
2) Wife’s separate property.
3) Marital property.

31
Q

What is separate property?

A

1) Any property owned by one of the spouses prior to the marriage is separate property.
2) Any item that is a gift or inheritance received by one spouse in her sole name.
3) Any pain and suffering damages recovered from a personal injury tort claim.
4) Any property acquired after parties separate.
5) Any increase in value to items in categories 1-4 during the course of the marriage. EX: stock portfolio owned before marriage.

32
Q

What is marital property?

A

Everything that isn’t separate property that is acquired during the marriage regardless of 1) who paid and 2) whose name is on title.
***This includes appreciation on separate property assets that is attributable to active effort of either party during the marital period. EX: H has $50K restaurant at marriage. H continues working on it and at divorce worth $200K. The 150K increase is marital property.

33
Q

What are the equitable factors the court must consider in dividing up marital property?

A

1) age and health of parties
2) degree to which each party contributed to marital wealth–did one party squander assets?
3) earning capacity, edu, job skills of parties
4) how much separate property is each party walking away with?
5) how long did marriage last?
6) tax consequences to any particular distribution
7) anything else that court deems just or appropriate

34
Q

What does court do once it considers factors and wants to distribute the asset?

A

1) Judge tells us who gets what.

2) Require one party to write a check to the other.

35
Q

How do we evaluate marital debts?

A

Can be apportioned and distributed like marital wealth.

36
Q

What can court not consider in property division determinations?

A

Alimony is not a valid consideration.

37
Q

If parties want to negotiate a separation agreement

A

Fine as long as no unconscionability and no fraud and no disclosure issues.

38
Q

Can court order temporary alimony while matrimonial action is pending?

A

Yes. If there’s going to be a problem w/ ends meat until end of case. Called alimony pendente lite (APL). Have to apply for this.

39
Q

Post-judgment alimony forms:

A

1) Lump sum
2) Periodic payments for a period of time or indefinitely. Can get support no matter the kind of divorce sought or whether court denies divorce

40
Q

When may there not be alimony?

A

Void relationships

ADULTERY committer can’t get alimony unless undue burden

41
Q

What does court consider in determining alimony payments?

A

1) Earning capacity, income, edu
2) Age, health
3) duration of marriage and standard of living enjoyed as married couple
4) amount of property each leaves the marriage w/
5) tax considerations
6) any marital fault!!!!

42
Q

When can alimony be modified?

A

If not ordered as a lump sum, alimony can be modified. Must show a bona fide change in circumstances. Almost anything is fine, but can’t game the system.

43
Q

When does alimony award terminate (other than expiration clause)?

A

1) Death of either party
2) Remarriage of recipient
3) Recipient cohabitating w/ someone may cause review and cause end of alimony if cohabit for more than a year

44
Q

How do you enforce alimony?

A

1) Wage reduction order
2) Attach assets (preference for bank accounts, etc.)
3) Contempt of court

45
Q

If mother is married, who is father of her kids?

A

Presumption that husband is biological father of kids. May be rebutted, but need a strong showing.

46
Q

What if child is born via artificial insemination?

A

Legal fiction says that husband of the mother is treated as the father if he consents to procedure.

47
Q

What is a child born to unmarried woman?

A

Non-marital child

48
Q

Who is the father of a non-marital child?

A

1) If a man steps forward and mother confirms, he’s the father.
2) If no consensus, litigate the paternity w/ clear and convincing evidence. DNA testing showing 98% likelihood of match is enough.

49
Q

What state is entitled to enter initial custody order for a child?

A

Uniform Child Custody Jurisdiction and Enforcement Act provides a state entitled to enter initial custody order if it is the home state of child or was home state w/in last 6 mos.

50
Q

What is home state?

A

Where kid has lived for 6 consecutive mos. w/ a parent.

51
Q

Once court turns to merits of child custody decision, what is the standard?

A

Best interest of child–BIC. Very child centric. Don’t give a shit about parents.

52
Q

What are the two kinds of custody?

A

1) Shared–consider whether parents get along well enough to make this sustainable and also consider geography.
2) Exclusive

53
Q

What factors does the court consider in child custody decision?

A

1) Age, physical/mental health of parents and kid;
2) Relationship between parents and kid;
3) Domestic violence or abuse by one parent against other or kid;
4) If either parent has a new companion, this matters;
5) Can we keep kids together or would it be better if the kids are apart;
6) Would one placement allow kids to remain close to extended family
7) Material advantages like school district

54
Q

VA law has considered what other factors in child custody cases?

A

1) Adultery: if adulterer is discrete, fine, but if adulterer likes to parade women around, no good.
2) Gay parent: not a per se DQ but consider relevance to child.

55
Q

Standard for custody disputes between parent and non-parent?

A

Rule: use BIC standard BUT presumption that best interests are served by keeping kid w/ bio parent.

56
Q

What if custodial parent wants to move?

A

This could affect non-custodial parent’s access, so must give court 30 days notice before move. Must also show that move outside of VA is in child’s best interest.

57
Q

How can child custody orders be modified?

A

Showing a change in circumstance that alters the best interest analysis. Mention: stability of child’s arrangement as a factor to be considered.

58
Q

Non-custodial parent’s visitation rights?

A

This can be in the custody order and very specific. BUT presume always in best interest of child to have some contact w/ non-custodial parent.

59
Q

Visitation requests by non-parents?

A

Usually grandparents or siblings. Have to show detriment to the child in denying visitation because this shows a state interest. Why? SCOTUS says parents have due process right to raise kids as they see fit.

60
Q

Parent’s obligation of support of child?

A

If parent and child live together, presume parent is supporting child.
If there’s a non-custodial situation, obligation to pay goes through 18 but may be extended through high school graduation or age 19.

61
Q

What if child has physical or mental disability?

A

Obligation to support extends through child’s lifetime.

62
Q

How much support must a parent give?

A

Keyed to parental income and number of kids. This is done through tables w/ each parent contributing in accordance w/ proportion of total income they contribute.

63
Q

How may child support order by changed?

A

Court order finding material change in circumstances. Can’t game system, and also having more kids/new family won’t alter support.

64
Q

What is the parental generousity rule?

A

If non-custodial parent’s salary increases, child support goes up because child should benefit from this good fortune.

65
Q

If child support is modified it’s prospective. What does that mean?

A

Any changes don’t affect past missed payments.

66
Q

What if you don’t pay child support?

A

1) Wage reduction
2) Seizure of property or assets
3) File w/ IRS or VA tax services and take returns
4) Take license to practice your trade
5) Contempt of court

67
Q

What if deadbeat parent moves out of state?

A

Uniform Interstate Family Support Act: 1) child support orders are enforceable regardless of where parents move to; 2) provides once first order has been obtained all other states must keep hands off.

68
Q

Who must consent to adoption?

A

Get all necessary consents from people who could veto adoption–both bio parents have to consent and if child is over age 14 they must consent. Whoever has custody of child (aunt, state) must also consent.

69
Q

When do bio parents not have to consent to adoption?

A

1) non-marital child’s father doesn’t have to consent if we don’t know who the father is
2) non-marital child whose father is served w/ notice and doesn’t respond in 21 days
3) no consent needed of parental rights have been involuntarily terminated

70
Q

What are grounds for termination of parental rights?

A

Abuse, neglect, abandonment, unfitness (mental illness, drug addiction). Requires clear and convincing evidence and full process.

71
Q

What does the required investigation of adoptive parents entail?

A

Very comprehensive: criminal background check, finances, interviews.

72
Q

What is the last step in adoption?

A

After consents and investigation, need a hearing where judge considers best interest of child. Generally, this is formality.

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