Marriage

Question 1

Grounds for challenging premarital agreement

Answer 1

duress

unconscionability at time of execution -

Question 2

duress for premarital agreement

Answer 2

time pressure, surprise, whether parties had equal degrees of economic education or sophistication, whether both were represented by counsel

Question 3

unconscionability for premarital agreement

Answer 3

must show lack of economic disclosure.

• never explicit disclosure by other party about wealth or assets
• lack of independent knowledge of other party’s wealth
• did not waive economic disclosure

Question 4

marriage license

Answer 4

need license - as you must have capacity and be of sound mind, suitable age. state official inquires into capacity. license is good for 60 days

Question 5

marriage ceremony

Answer 5

ceremony - need valid officiant, who is member of clergy of any religion, judges, or other appointed official, if everyone of some religion counts, no one of that religion can be officiant.

need to exchange promises - declaration of entering into new status

Question 6

curative statute

Answer 6

any defect in license or lack of authority in officiant will not affect validity of marriage as long as acted in good faith

Question 7

marriage requirements

Answer 7

license and ceremony

Question 8

annulment

Answer 8

based on any ground predating marriage - look backward before marriage. available if marriage is void or voidable

Question 9

void marriage

Answer 9

if void, not married at all and don’t need annulment. annulment is not necessary but helps to have clarity of the record - establish marriage does not exist in databases and resolve collateral issues like money and kids

Question 10

grounds for void marriage

Answer 10

bigamy - cannot marry if already married.

consanguinity - incest. cannot marry ancestors, descendants, siblings, lineal relatives up or down one generation

can marry first cousins

Question 11

grounds that make marriage voidable

Answer 11

one party was under 18 at time of marriage - waived if continue to cohabit after party turns 18

duress- force someone into marriage. waived if cohabit after duress is over

mental incapacity - mental illness, under influence of drugs or alcohol at time of marriage, advanced age, developmental disabilities - waive if cohabit after incapacity passes (age and developmental disabilities cannot be waived)

incurable impotence - inability to have sex. waive if you decide to stay married despite impotence

fraud - misrepresentation of essential aspect of marriage - lying about sexual relations/ability to have kids - concealment only grounds if not obvious to other party

failing to disclose you were previously convicted of felony

failing to disclose you are carrying another man’s child/another woman is carrying your child

failing to disclose you previously worked as a prostitute

Question 12

voidable marriage

Answer 12

actually married, need annulment

Question 13

civil procedure of divorce

Answer 13

go to circuit court, need subject matter jurisdiction to allow entry of decree to dissolve marriage. one spouse. must be domiciles in Va. and be a bona fide resident of the state for 6 months. SMJ is only sufficient to allow adjudication of divorce, but alimony and property require personal jurisdiction over those things

Question 14

divisible divorce

Answer 14

decree of divorce in one state where P spouse is domiciled, property division in state B because that’s only place to get personal jurisdiction over that spouse

Question 15

venue for divorce

Answer 15

preferred venue rules - so if file in venue not preferred, court can transfer to preferred venue on request of either party.

wherever they last lived together, wherever defendant spouse currently lives, or where plaintiff spouse lives if defendant spouse lives out of state.

Question 16

divorce a vinulo matrimonii

Answer 16

divorce from bonds of matrimony - absolute divorce

Question 17

grounds for fault based divorce

Answer 17

adultery, sodomy, buggery outside of marriage

conviction of felony involving sentence of 1 year or more occurring during marriage

desertion - unjustifiable departure of at least 1 continuous year

physical and mental cruelty - cruelty that poses danger to life or health of other spouse. mental cruelty can include persistent humiliation, abusive speech, mockery/ridicule, but mere bad temper is not enough

Question 18

defenses to fault based divorce

Answer 18

condonation
connivance
recrimination
statute of limitations

Question 19

condonation

Answer 19

waiver, requires innocent spouse to be aware of conduct, forgive conduct, and resume cohabitation - requires spouse to have commitment to not repeat injurious conduct

Question 20

connivance

Answer 20

spouse lured you and duped you into engaging in the alleged misconduct

Question 21

recrimination

Answer 21

offsetting conduct - basically if spouse 1 tries to get fault based divorce because spouse 2 engaged in adultery, but spouse 1 has also engaged in adultery

Question 22

statute of limitations in adultery

Answer 22

5 year limitation on adultery action

Question 23

fault based divorce

Answer 23

divorce for certain enumerated faults. to get fault based divorce, must have sufficient corroboration - cannot get based on uncorroborated testimony of plaintiff spouse

Question 24

no-fault divorce

Answer 24

if both parties want divorce, they have no minor children, and they can negotiate separation agreement resolving collateral issues on their own, they must only separate for 6 months to get divorced

if any of those conditions are missing, must be separated for one full year.

Question 25

divorce a mensa et thoro

Answer 25

divorce from bed and board - legal separation

judicial permission to live out of home without accusation of desertion.

does not preclude from later seeking absolute divorce. but f ground that s basis for absolute divorce existed at separation, cannot rely on that ground again to get fault based divorce

if you reconcile, can get decree revoked

Question 26

grounds for divorce a mensa et thoro

Answer 26

physical or mental cruelty - rational basis to believe violence will occur

desertion - abandonment does not have to be full year, just no intent to return

Question 27

separate property

Answer 27

anything acquired before marriage, gift or inheritance received after date of marriage by either spouse in their sole name, property acquired after separation, pain and suffering component of any tort recovery awarded, passive income on any assets that are separate property

Question 28

marital property

Answer 28

everything acquired after marriage outside of separate property. does not matter whose name is on title, who earned money to buy it.

increase on value of separate property from active efforts of a party is marital property, not separate

Question 29

rules of division of property

Answer 29

each party keeps own separate property. marital assets are divided by equitable distribution. court considers age and health of spouses, duration of marriage, circumstances contributing to breakdown of marriage (marital fault, even if no-fault divorce), whether assets are liquid/nonliquid and if it makes sense to give one type of asset to one of the spouses, respective income, custody, tax consequences, and whatever else is appropriate to consider

Question 30

division of debts

Answer 30

treat debts like assets that have negative value, can have separate debt or marital debt.

Question 31

division of pension

Answer 31

dictated by ERISA

requires order from court conforming to certain things outlined by statute

Question 32

alimony/spousal support

Answer 32

duration has been getting shorter, amounts smaller, etc.

lump sum - can have one lump sum of spousal support. makes sense if age disparity when one spouse is older and in poor health

periodic payment can be indefinite or time limited

can get in divorce a mensa or divorce a vinculo

Question 33

factors considered in determining amount and length in spousal suppport

Answer 33

age and health of parties, job skills, educational attainment, respective income, contribution to family wealth (being stay at home spouse counts), property each party has, fault in divorce, anything else the court considers

Question 34

can you receive alimony if you committed adultery

Answer 34

generally, adultery is an absolute bar to alimony unless denial would result in manifest injustice

Question 35

modifying spousal support payment

Answer 35

show change in circumstances - like change in payer’s circumstances (lost job), change in payee’s circumstances

modification is prospective only, cannot change past due alimony

Question 36

termination of alimony

Answer 36

death of either party, remarriage of recipient

Question 37

enforcement of alimony

Answer 37

go after paychecks through garnishment, go after assets through asset seizure - go to court that issued order and go after assets - first for liquid assets, then tangible personal property, then real property, petition to hold someone in contempt of court