Family Law Flashcards
What are the grounds for termination of parental rights?
- NEGLECT OR ABUSE & Condition cannot be remedied
- ABANDONMENT – if parents can’t be found – foster care and no parent has claimed within 6 mos
OR
- Child in Foster care – no contact for 12 mos AND parent hasn’t fixed himself within 12 mos –
What are the grounds for challenging a Pre-Nup?
1) Must be in Writing (SoF)
2) Must actually get married
3) Statutory grounds (lack of voluntariness AND Unconscionable)
What makes a prenup unconscionable?
1) Must be unconscionable when executed AND
2) No disclosure of financial data
AND
3) no wiaver of disclosure
What makes a marriage legal in VA?
License (Capacity + No waiting period + good for 60 days)
+
Cerermony (officiate + exchange of promises)
What are the grounds for Annulment?
VOID
1) Bigamy
2) incest
3) Under 18 (can be 16 w/consent of 1 parent)
VOIDABLE (can be waived)
4) mental incapacity
5) duress
6) incurable impotency
7) Fraud
How do you show an annulment through fraud?
What are some reasons?
misrepresentation or concealment that GOES TO AN ESSENTIAL ASPECT OF THE MARRIAGE
Statutory Reasons:
1) concealment that you were convicted of a felony
2) carrying another man’s child or impregnating another woman
3) concealed fact that you had previously been a prostitute
Other reasons:
Lying about religion, the ability to have kids; sexual odditites;
*LYING ABOUT MONEY, PROPERTY, OR SOCIAL STATUS NOT GROUNDS FOR ANNULMENT - does not got to an essential aspect of the marriage
In Virginia, you must pursue an annulment within______ of marriage.
2 years
what are the jdx, venue and SoP issues regarding VA divorce?
SM jdx: where one spouse domiciled in VA for 6 mos
Venue: any city or county where the parties last lived together, OR D’e residence, OR if D is out of state, P’s city or county or residence
PJ and SoP same as any other VA case
What is “Legal Seperation” called in VA, and what are the grounds and is it revocable?
A Mensa Et Thoro
Cruelty
Abandonment or Desertion
It is revocable if parties reconcile
What is divorce called in VA?
A Vinculo MAtrmonii - absolute divorce
What are the fault base grounds for divorce?
- must wait 1 year after incident
1) Adultery
2) 1 spouse convicted of a felony
3) Cruelty or Dessertion
Cruelty
MERE BAD TEMPERMANT NOT ENOUGH; refusal of sex not enough UNLESS its PERMANENT AND INEXCUSABLE)
Desertion:
Evidence that Cohabitant 1) desert; 2) without justification; 3) w/ an intent to dessert (can be contructive
What are the rules for No-fault divorce in VA?
a. If both parties agree 1) (MUTUAL) and they have 2) no kids – enter into 3) a separation agreement. They move out – live separate and apart for 6 months – no physical intimacy for 6 months. At the end of the 6 month period . Than judge grants divorce
b. If they have kids, or only 1 party wants out, must be separated for 1 full year.
What are the 3 affirmative defenses to fault divorce
i. Connivance – “Entrapment” – lured into behavior that is being cited for grounds of divorce
ii. Condonation – form of waiver – requires 3 things
1. Knowledge of misconduct
2. Forgiveness of misconduct
3. Resumption of sexual relationship
iii. Recrimination – unclean hands – other party guilty of same crime (other states have abolished this defense) – if fact pattern both parties are cheating talk about Recrimination
What is SoL for divorce in adultery based cases?
5 years
What is considered spouses separate property?
a. Prior owned
b. Inheritances AFTER
c. Property acuired after parties SEPARATE
d. settlements or judgment from a tort (and whatever bought w/settlement money
e. Passive appreciation of separate property– increase in value due strictly to market forces
f. Appreciation of a separate property asset due to ACTION during the marriage is MARITAL PROPERTY
What are the statutory factors for distribution of assets?
COURT CONSIDERS ANYTHING JUST AND APPROPRIATE -
- parties can do this separately in an agreement
a. Age and the health of the two spouses – (older spouse might get more of the property, because they will have a harder time accumulating wealth)
b. Duration of the marriage, and the contribution each party made. If marriage shorter, might make more sense to split
c. Are assets liquid or illiquid
d. Tax consequences associated with certain assets
e. Marital debts can be distributed just as assets
f. Property distribution to be made WITHOUT regards to alimony.
While case is pending court can order temporary alimony called________– designed to preserve the _________ while the case is going forward.
(aliomny pendente lite) APL;
Status Quo
What are the factors for determining if alimony should be paid?
a. Financial capacity of the spouses
b. Age, health, education, employment prospects
c. Contribution each party made to the well being of the family
d. Duration of marriage and standard of living enjoyed while couple was together.
e. Amount of property awarded
__________ is an absolute bar to alimony, UNLESS, denial would constitute a ___________.
Adultery;
Manifest Injustice
Allimony awards can be modified IF
Bona fide change in circumstances - can be almost anything (not voluntary leaving high paying job)
How is alimony terminated?
at end of termination period indicated in agreement OR
1) death of either party
2) remarriage of recipient
3) Cohabitation of recipient, DOES NOT result in automatic termination, but if continues for more than 1 year, court CAN reduce in its discretion.’
What are the paternity issues in VA?
REBUTTABLE PRESUMPTION THAT CHILD BORN TO MARRIED WOMAN IS CHILD OF HUSBAND
CHildren born to unmarried woman - “Non-marital child” - mother and man both agree that he is dad, fills out paperwork acknowledging paternity
What is the standard used in a paternity suit?
What is established for the child?
Paternity of dad must be established by Clear & Convincing evidence - DNA tests ok
Establishes for all legal purposes that kid has claim of support and claim of inheritance
What state has jdx in child custody cases?
Uniform Child Custody JDX and Enforcement Act UCCJEA Statute: RULE: for the first 6 mos after move, the prior state retains jdx, thereafter, the new state obtains jdx.
State that entered the first order has continuing and exclusive JDX, so long as a parent or Kid lives in the state.
Custody can be awarded to 1 parent or both parents What are the factors?
BEST INTEREST OF THE CHILD STANDARD
factors:
i. Age, physical and mental condition of child and two parents
ii. Relationship child has with both parents
iii. Does parent have a new companion? (stripper or drug dealer)
iv. Would placement require everybody to stay together
v. Would placement with one parent allow kid to be near extended family
vi. Does child have a preference (at least 12 usually)
vii. Look and see whether one parent is more willing to accommodate visitation by the other.
viii. Look at other lifestyle and morality issues (permiscuity – parade of over night guests)
ix. ANY DOMESTIC VIOLENCE
What are some factors that would lead a judge to grant joint custody of a child?
i. Do parents get along?
ii. Geography: reasonably close to each-other, consider traffic
Custody claim by Non-Parents?
- BIC standard governs – PRESUMPTION IN FAVOR OF BIOLOGICAL PARENTS
- Non-parent must show some substantial benefit or extreme detriment if stays w/biological parent.
What is needed for a valid adoption?
i. Presumption: Everyone who’s consent is required has given consent.
- Biological parents – both must consent
- Non-marital child and identity of father is unknown, don’t need that person’s consent
- If known and father doesn’t object within 21 days, treated as if he consented.
- Don’t need the consent of a parent who’s parental rights have been terminated
- If child is 14 or older, that child must consent
ii. Investigation of prospective adoptive parents
1. Child is turned over to adoption agency
a. Agency places with parents
b. Investigation (finances, interviews etc.)
c. Hearing to finalize adoption. Based in BIC
A support obligation can be enforced by a payroll deduction if the respondent is at least ____________________ days delinquent on the obligation.
15
A court’s determination of child support is based on ______________that when applied create a ______________ of the proper amount of support.
statutory guidelines;
rebuttable presumption
Husband commits adultery and Wife seeks a divorce. May Husband seek spousal support?
No, unless denial of support would constitute a manifest injustice.
After granting a divorce, a court may order spousal support in a lump sum, in periodic payments for a definite or indefinite duration, or in any combination of lump sum and periodic payments. A court cannot order spousal support to be paid from ______________.
the estate of a deceased spouse
What is the doctrine of transmutation?
Separate property may become marital property through commingling with marital property.
Is gifts from one spouse to another during the marriage considered marital property?
YES
On divorce, a court will divide marital property between the spouses under the principles of:
Equitable distribution
One spouse’s cruelty that causes the other to flee the marital dwelling may constitute _________________ by the cruel spouse.
constructive dessertion
In order to maintain a divorce action, at least one of the parties must have been a ____________________ for at least ____________________ preceding the commencement of the suit.
Residency and domicillary;
6 months
Can common law marriage be entered into in Virginia?
No
What are the elements of desertion?
\ 1) ACtual breaking of matrimonial cohabitation 2) with intent to dessert; 3) continuously for one year.
Do spousal support and child support have to be in the seperation agreement? Can they be modified?
SS: Yes. Right to SS is extinguished if not mentioned by the decree or reserved by the courts.
CS: No. court may revise or alter a decree concerning the CARE, CUSTODY and MAINTENANCE of a child, if changed circumstances.
*VA follows “parent generosity rule” child support may be based on ability to pay as well as need. rights cannot be contractually altered by agreement of the parties
When seperate property becomes comingled with marital property and loses its separate identity, it becomes marital property under what doctrine:
Transmutation
Virginia has abolished the common law defense of inter spousal immunity in tort for all causes of actions (T or F)?
True
In a custody dispute where one parent adopted the child and the other is the biological parent, there is a presumption in favor of the biological parent (T or F)?
False
When a suit for divorce grounded in adultery, sodomy, or buggary, the divorce will not be granted in these 3 situations?
1) parties voluntarily cohabited after the knowledge of the fact of adultery
2) it occurred more than 5 years before the institution of the suit
3) it was committed by the procurement or connivance of the party alleging such act.
VA recognizes a hybrid species of property that may be both marital and separate under a ___________ doctrine. Thus, if husband can , by a _____________ show that the property is separate property, only the improve portion would be considered marital property and subject to _____________by the court
source of funds; preponderance of the evidence; equitable distribution
A court must accept the petition of foster parents for the adoption of a child who has resided continuously in their home for at least____and whose parents’ parental rights have been terminated
18 months
VA does not recognize effectuation of __________adoptions within it’s territorial boundaries.
equitable
What law or statute provides the exclusive jdx basis for making child custody determination by a court in Virginia?
Uniform Child Custody Jurisdiction and Enforcement Act
The parent child relationship between a child and a man may be established by scientifically reliable genetic tests, including blood tests, which affirm at least____% probability of paternity.
98%
Newly acquired commingled property is presumed to be marital property unless the property can be traced to its original classification by what standard of proof?
Preponderance of the evidence
The character of property as separate or marital property must be determined ads of the _______________
date the property is acquired
Persons ___ years old and over who have ___________and ___________after providing for their immediate families are obliged to assist in supporting their parents who are in necessitous circumstances
18; sufficient income; earning capacity
Virginia will recognize a common law marriage validly contracted in another state so long as____________
the six-month domiciliary requirement for divorce in Virginia is met
What is constructive desertion?
WILLFUL BREACH AND NEGLECT of marital duties that DESTROYS HOME LIFE. Must be corroborated by third party.
How does a spouse prove adultery for purposes of fault divorce?
1) can be proven by circumstantial evidence, does not require that the cheating party be caught in the act.
2) Must be proven by clear and convincing evidence AND
3) third party corroboration on each ground of divorce.
If a Defendant spouse in an out of state divorce action, living in Virginia, fails to make any appearance in case, what are her rights regarding child and spousal support?
She is in default. The divorce can be granted ex parte, however, an adjustment of support or property rights can obly be accomplished through a bilateral proceeding. The out of
What is a divisible divorce?
under this doctrine, the court may grant an ex parte divorce without determining property rights
Is an out-of-state defendant spouse subject to in personam jdx, if they are properly served, but make no appearence in the divorce proceeding?
No. Even if the out of state spouse is properly served, if they don’t make any appearences, VA lacks in personam jdx and therefore cannot divide marital property.
What is the most important jurisdictional test under the UCCJEA for purpose of child custody?
The child’s home state, which is the state in which the child lived with a parent for at least 6 mos prior to the child custody proceeding.
What standard of proof is required to show that a child was deserted, neglected, abused or not supported by the parent, so their statutory duty to support their parents is excused:
SUBSTANTIAL EVIDENCE
Although the presumption that a child being born during marriage is a marital child is strong, it can be overcome if ________________ is presented.
SUFFICIENT EVIENCE
Biolgical father must consent yo adoption, however, VA can gran an adoption without consent if it finds what?
That consent is being withheld contrary the BIC.
