Family Law Flashcards
What is a prenuptial agreement?
A contract between fiances about economic or other adjustments to be made if the marriage fails
What are the different methods for challenging a prenuptial agreement?
- Statute of frauds
- No marriage
- Uniform premarital agreement act
- Non-voluntary (i.e., time pressure, surprise)
- Unconscionability
- When executed
- Without disclosure of financial data
- Without waiver of disclosure
What are the requirements for a valid marraige in Virginia?
Marriage must be ceremonial
- Requirements
-
License
- __Requires capacity
- Requires payment
- Expires after 60 days
-
Ceremony
- Requires celebrant (e.g., clergy, minister, etc.)
- Requires exchange of solemn promises
-
License
What is the rule regarding common law marriage in Virginia?
Not permissible in Virginia
But Virginia honors common law marriages from other states (e.g., DC)
What are the methods of terminating a marraige?
- Annulment
- Divorce
An annulment is based on grounds take place…
before the marriage.
A divorce is based on grounds that take place…
after the marriage.
What circumstances make a marraige void?
- Bigamy
- Incest
- Underage
If a marraige is void, there is no defense of…
waiver
i.e. can’t make the marraige valid by staying in it.
What is Bigamy?
Marrying when you’re already married to someone else. It is also a crime.
Bigamy makes a marraige (void/voidable).
Void
Bigamy is subject to the defense of…
Good faith belief that the former spouse died
Incest is (void/voidable) grounds for marraige termination and includes marraige to what types of relatives?
void
- Includes:
- Nephews, neices, ancestors, descendants, etc.
- Excludes:
- Cousins
Marrying someone underage makes the marraige (void/voidable).
void.
For the purposes of making a marraige void, what is “underage”?
- Under 18 is “underage”
- You are allowed to marry at the age of 16 with:
- consent of one parent
- You’re allowed to marry under the age of 16 if:
- You provide proof of pregnancy, and
- Both parents of the underage party consent
If the marraige is void, is it necessary to get an annulment?
No. The marriage is void. But the parties should still get an annulment in order to:
- Clarify the record (and ease burden of proof in future)
- Get judicial assistance in resolving collateral issues
- E.g., division of property, custody of children, etc.
What circumstances make a marraige voidable?
- Mental incapacity
- Duress
- Incurable impotency
- Fraud
For the purposes of making a marraige voidable, what is mental incapacity?
- Mental illness
- Developmental disability
- Intoxication
For the purposes of making a marraige void, what is Duress?
Pressuring another to marry
e.g. shotgun wedding
For the purposes of making a marraige void, what is incurable impotency, and what are its requirements?
Definition:
- Inability to have sex, not conceive
Requirements:
- Must be incurable (i.e., Cialis won’t work)
- Couple must have abstained before marriage
For the purposes of fraud, what is included as an essential aspect of the marraige?
Essential aspects include concealment of:
- Previous felony conviction
- Carrying another’s child
- Having a child with another
- Prostitution
- Religious beliefs
- Sexual predilections
For the purposes of fraud, what isn’t included as an essential aspect of the marraige?
Concealment of:
- Money
- Property
- Social status
How is each type of voidable marraige waived?
Generally, by sticking with the marriage and continuing to have sex (unless impotence grounds) either:
- After impediment is removed (incapacity)
- After marriage entered into (duress)
- After disclosure of impotency
- After disclosure of fraud
What is the statute of limitations for pursuing an annulment?
Two years after marriage
For the purposes of making a marraige voidable, fraud must relate to:
an essential aspect of the marriage.
What court do you go to for a divorce?
Circuit court (i.e., chancery)
(not juvenile and domestic relations)
What is required for a Virginia court to have subject matter jurisdiction in a divorce proceeding?
- 1 spouse domiciled in Virginia
- For at least 6 months prior to filing
What is required for a Virginia court to have jurisdiction in a case requesting something other than a divorce decree (e.g., money)?
Virginia court must have personal jurisdiction, based on normal rules of civil procedure
What are the venue rules in Virginia for a divorce proceeding?
Can file in any county within the Commonwealth
If you file in a non-preferred venue, the court can transfer to a preferred venue, or the other party can move for transfer
Preferred venues include:
- County where parties last lived together
- County where D resides, if in state
- If D resides out of state, county where P resides
What are the different types of divorce proceedings?
- Legal separation
- Absolute divorce
- No-fault
- Fault-based
What are the fault-based grounds for absolute divorce?
- Adultery and sodomy or buggery outside the marriage
- Spouse convicted of felony, sentenced to a year or more
- Cruelty or desertion
What are the affirmative defenses to fault-based divorce?
- Connivance
- Condonation
- Recrimination
- Statute of limitations
What is the evidentiary requirement for testimony evidence in a divorce proceeding?
Testimony must be corroborated (but only slight corroboration)
What are the no-fault grounds for absolute divorce?
Requirements:
- If no kids and separation agreement
- No cohabitation for 6 months
- If kids or no separation agreement
- No cohabitation for 1 year
What is the effect of legal separation?
- All collateral rights are adjudicated
- Marriage still intact (neither party can marry while alive)
- Personal and property rights are protected
- E.g., tax benefits
- E.g., health benefits
What are the grounds for legal separation?
- Cruelty and reasonably apprehension of bodily harm
- Abandonment and desertion
Note: no statutorily required period of time before you can file for separation, so you can get a separation, wait a year, and then get an absolute divorce
What is the process called for dividing property in a divorce?
What are the steps?
Equitable division
Steps:
- Classify every asset
- Distribute the assets
Under equitable division, what are the different classifications of assets?
- Spousal assets (i.e., Spouse A, Spouse B)
- Marital assets
Under equitable division, spousal assets go to…
the respective spouses.
Under equitable distribution, in what form does the court distribute assets?
Either in kind or through an order to pay money
Under equitable distribution, what should the court not consider?
Whether there would be alimony
What are the different types of alimony?
- Temporary alimony
- Post-judgment alimony
What is temporary alimony?
What is the other name for it?
An order of alimony while the case is pending, designed to preserve the status quo
Alimony pendente lite (APL)
What types of post-judgment alimony can a spouse get?
- Periodic and perpetual
- Periodic for a limited time
- Lump sum
What type of marriage termination can give rise to alimony?
Both absolute divorce and legal separation
When is alimony not available?
- If the marriage was void
- If grounds for termination was adultery
- Unless denial of alimony would be manifest injustice
Can a court give alimony when there aren’t grounds for divorce?
Yes
How does a court determine the alimony amount?
- Financial circumstances of spouses
- Age, health, education, and employment prospects of spouses (i.e., ability to earn a living)
- Contributions by spouses to well-being of family
- Duration of marriage and standard of living of spouses
- Wealth of spouses after divorce
- Tax consequences
- Forms of fault for divorce
When can an alimony award be modified?
When there was a bona fide change in circumstances
E.g., loss of job by either party (but not voluntary job change)
Can inflation be grounds for modification of an alimony award?
Yes. The judge cannot simply add a cost of living adjustment to an award. The parties must seek modification each time.
When is alimony automatically terminated?
- Death of either party
- Remarriage of recipient
Is alimony automatically terminated when the recipient cohabitates?
No, not automatically. But if it lasts for more than one year, the court has discretion to terminate alimony
What can the court do to enforce alimony payments?
- Initiate wage reduction order
- Seize assets
- Hold party in contempt
What is the general rule with respect to paternity?
Presumption is that a child born to a married woman is a child of that woman’s husband
How do you establish the paternity of a non-marital child?
- Acknowledgment of paternity
- Mother and man both agree that he is the father
- Paternity suit
What state has jurisdiction to hear a child custody dispute?
Under UCCJEA:
- First 6 months after move
- Prior state
- After 6 months
- New state
- Multiple moves
- State with greatest connection to child
What is the concept of exclusive, continuing jurisdiction?
Once a state court makes a custody determination, other state courts can’t get involved unless either the child or any parent leaves that state
What standard is applied to determine child custody?
Best interests of the child (BIC) standard, considering:
- Age and physical/mental condition of child and parents
- Relationship of child with each parent
- Whether either parent has a companion
- Whether placement with one parent would split the child from siblings or other family members
- Whether child expressed preference (if > 12 years old)
- Whether one parent is more willing to accomodate visitation by other
- Lifestyles of parents
- Domestic violence
What standard is applied to determine joint child custody?
Best interests of the child (BIC) standard, considering:
- Whether parents will cooprate and get along
- Whether parents live near eachother
What standard is applied to determine custody claims by non-parents?
Best interests of the child (BIC) standard, but presumption is in favor of the biological parent.
What does a custodial parent have to do if he wants to re-locate?
- Give the court 30-day notice
- Court holds a hearing
- If moving out of state, court makes BIC determination
When can a custody determination be modified?
When:
- there has been a material change in circumstances and
- it is in the best interest of the child to modify custody or visitation.
If a non-custodial parent fails to pay child support, will he lose visitation rights?
No. Visitation is almost always given to the non-custodial parent
Can non-parents get visitation rights?
Generally no. The US Supreme Court has ruled that the courts should not interfere with the parent’s ability to decide with whom their children should visit with.
Non-parent must show that the detriment from denying them visitation trumps the parent’s due process right to raise the child as he or she sees fit.
Who is resonsible to provide child support?
All biological parents, but support orders are usually directed to non-custodial parents either:
- After divorce
- If there is a non-marital child
How long does a child support order last?
Until the child turns 18 unless:
- If still in high school:
- The earlier of:
- Graduation
- The child turns 19
- The earlier of:
- If child disabled, it doesn’t end
How is the amount of child support determined?
Based on tables that are keyed to the parent’s income, but a judge can depart from this (either up or down) with a written justification
If a non-custodial parent remarries and thus has a new family to support, can the child support be reduced?
No
If non-custodial parent gets an increase in income, does the child support have to increase?
It might. The custodial parent can ask for an increase so that the kid can share in it, under the parental generosity rule
If modifying child support, what can you modify? What cannot be modified?
You can modify future payments
You cannot modify past due payments
What can the court do to enforce child support payments?
Same as alimony:
- Initiate wage reduction order
- Seize assets
- Hold party in contempt
But also under UIFSA:
- Revoke the parent’s professional license (e.g., CPA)
- Enforce the order out of state
- Mail VA order to out of state employer
- Mail VA employer to out of state court
Who must consent to an adoption?
- Both biological parents
- Can be in advance
- Not necessary if:
- Parents are unknown
- Parents do not object to notice
- Parents parental rights are terminated
- Adoptee if 14 or older
How might parental rights be terminated?
When will they not be terminated?
In a TPR proceeding, parental rights can be terminated for:
- Neglect or abuse that cannot be remedied
- Failure to maintain contact with child in foster care
- Inability to remedy conditions that put child in foster care
- Abandonment
Parental rights are not terminated when:
- Child 14 or older objects to termination
What are the procedural steps for adopting a child?
- Obtain the necessary consent
- Investigation of prospective adoptive parents
- Hearing to finalize adoption (using BIC standard)
For the purposes of fault-based divorce, Cruelty or desertion includes:
- Permanent refusal of sex
- Domestic abuse (physical or verbal)
- Constructive desertion (i.e., changing of locks)
- Only grounds after 1 year of behavior
What is the connivance defense to fault-based divorce?
It’s similar to entrapment.
What are the requirements for the condonation defense to fault-based divorce?
Similar to waiver;
Requires:
- Knowledge
- Forgiveness (based on commitment to stop)
- Resumption of sexual relations
What is the recrimination defense to fault-based divorce?
Similar to unclean hands, i.e. both parties engaged in fault-based conduct.
Other states have abolished this because it does not make sense to keep the spouses together
What is the statute of limitations for adultery grounds to fault-based divorce?
5 years
What are the latin terms for legal separation and divorce?
Divorce a mensa et thoro
Divorce a vinculo matrimonii
When distributing marital assets, the court considers:
- Age and health of spouses
- Duration of marriage and contribution of each
- Circumstances giving rise to marriage termination, including fault (even if no fault divorce)
- Liquidity of assets
- Tax consequences
- Anything just or appropriate
What do spousal assets include?
- Anything owned by spouse prior to marriage
- Anything obtained by spouse as gift or inheritance
- Anything obtained by spouse after separation
- Pain and suffering recoveries in tort
- Passive appreciation on the above items
What do marital assets include?
- Anything obtained during marriage that isn’t included as a spousal asset:
- Regardless of who earned it, and
- Reglardless of who has title.
What must you do to rebut the presumption is that a child born to a married woman is a child of that woman’s husband?
Establish evidence that:
- Husband did not have access to the wife at time of conception
- Husband incapable of having children
- Proves husband isn’t the father (DNA)
What is the standard of proof for a paternity suit?
Clear and convincing evidence
What factors are typically used as evidence in favor of paternity in a paternity suit?
Blood test is usually conclusive
Otherwise, external factors:
- Man let child use surname
- Man had close relationship with child
For a non-parent to get custody, how do they rebut the presumption in favor of the biological parent?
Must show significant benefit to child from being with non-parent (hard burden to meet)
What is the rule regarding amendment of alimony and property division in a divorce settlement?
Where parties competently enter into a settlement agreement and there is no indication of unconscionability or fraud, Courts will respect the parties’ rights to be the masters of their own bargain and uphold the contract
What is the rule regarding waiving child support in a divorce decree?
A parent cannot contract away his duty to pay child support for the wellbeing of his child.
What are the effects of an unenforceable divorce settlement provision (e.g. waiver of future child support)?
The term is void under Virginia law, and thus will be stricken from the contract under the blue-line rule (parts of a contract that are invalid may be stricken from the contract if there is a clear means to do so while leaving the rest of the contract intact).
