Termination of Marriage Flashcards
1
Q
Two ways to terminate a marriage in VA
A
Annulment and DIvorce
2
Q
Difference between annulment and divorce
A
- annulment is based on a ground that predates the marriage
- pre-existing capacity problem that one or both didn’t know of
- Divorce is based on a ground that occurs after the marriage
3
Q
Anullment is an available remedy for these two types of marriages
A
Void and voidable
4
Q
Effect of a void marriage
A
- if grounds for marriage void, marriage didn’t exist at all, no annulment needed
- Typically people in void marriage still get annulment because:
- Makes it official because you don’t have to explain marriage later, e.g. for future marraiges/loans
- For collateral matters
- e.g. custody and property division
5
Q
Effect of a voidable marriage
A
- if grounds for marriage voidable, you are married until you get the annulment
- You still get the benefits of marriage
6
Q
Waivability of void and voidable marriages
A
- Void marriages are NOT waivable. You can’t consent later and make the marriage valid.
- Voidable marriages are waivable in various ways depending on the circumstances
7
Q
Grounds that make the marriage void
A
- bigamy
- Second marriage is void, first is not
- Also punishable as a crime, unless marriage is entered into under mistaken belief first spouse had died
- Consanguinity
- Can marry first cousins
- Can’t marry all other blood relatives
8
Q
Grounds that make the marriage voidable
A
- Underage
- Duress
- Mental Incapacity
- Incurable impotence
- Fraud
9
Q
Voidable marriage-underage
A
- have to be 18
- 16-17 only with judicial permission
- Ground is waived if you continue to cohabit (living together and sex) after age 18
10
Q
Voidable Marriage-Duress
A
- e.g. shotgun wedding
- Waivable if you continue to cohabit after threat of violence terminates
11
Q
Voidable Marriage-Mental incapacity
A
- Mental illness
- Under influence of drugs/alcohol
- Developmental disability
- Age-related mental issue, like alzheimer’s
- Waived if you continue to cohabit after impediment removed
- Annulment has to be litigated by a guardian b/c incapacitated
12
Q
Voidable Marriage- Incurable Impotence
A
- the inability to have sex, not make babies
- Have to not had sex before marriage , or this is waived
- Can’t be curable, e.g. Viagra/wedding night nerves
- Waived when the other spouse still consents to the relationship
13
Q
Voidable Marriage-Fraud
Most likely to show up on exam
A
- any situation prior to the wedding where one party misrepresented/concealed fact that goes to an essential aspect of marriage
- ultimately a discretionary determination
14
Q
Voidable Marriage-Fraud
Some frauds that have been established by statutes
A
- concealment of a prior felony
- pregnant with another man’s child at time of engagement
- Man impregnated another woman/had other children by another woman
- Spouse had previously been a prostitute
15
Q
Frauds that have been established by caselaw
A
- misrepresentation of religion
- could be what kind of religion or how devout you are
- Lying about procreation
- unable to have kids
- Kids will have genetic birth defects
- Lying about sex
- must be really big, like sexual proclivities, not sexual history
16
Q
When voidable marriage under fraud is waived
A
- Waived if spouse stays in marriage despite the fraud
17
Q
Kinds of misrepresentation that aren’t fraud for the purposes of voidable marriage
A
- Any misrepresentation as to money, property, or social status is not fraud
18
Q
The proper court for a divorce
A
- Go to circuit court-chancery side to get a divorce
- Juvenile and domestic relations court
- in many big cities and counties
- have juris. over child custody and parental rights, but NOT divorce jurisdiction
19
Q
When Virginia has SMJ over a divorce action
A
- one spouse domiciled in Virginia
- spouse is a bona fide resident for 6 months
- Divorce can be granted even if court has no PJ over the other spouse
- But, SMJ is enough to get a divorce only.
- If the spouse wants collateral/economic remedies, must have PJ over defendant spouse.
20
Q
When Virginia has PJ over a nonresident for collateral divorce remedies
A
- General presence in the state
- Or something in the long-arm statute
- These give long-arm basis for PJ in Virginia:
- execution of a prenup
- execution of a separation agreement
- prior residence in Virginia
- a valid spousal/child support order in Virginia
21
Q
Divisible Divorce
A
- If no PJ in plaintiff spouse’s state, no economic remedies
- must litigate those remedies in defendant spouse’s state
- called a divisible divorce, where divorce decree in one state but property agreement in another.
22
Q
Preferred venues for divorce
A
- Preferred venues (none of them are more preferred than the other):
- Where the parties last lived together
- Where the defendant spouse lives,
- or if the D is out of state, the jurisdiction where the P lives.
23
Q
Effect of preferred venues in Virginia
A
- if you don’t file in a preferred venue, court can transfer to a preferred venue sue sponte or upon motion by a party
- if neither party objects, and the judge is okay, divorce can happen in any jurisdiction in the state
24
Q
Two types of divorces
A
- Divorce a mensa et thoro
- A divorce from bed and board
- Just a legal separation
- Divorce a vinculo matrimonii
- Complete divorce
25
Reason for and effect of legal separation
1. After legal separation agreement, free to separate and have no desertion claim
2. Want to live alone and have economic stuff handled, but have a legally intact marriage.
1. typically for economic reasons, like taxes and healthcare
2. Also for religious reasons
26
Grounds for Legal Separation
1. same a fault-based divorce
2. Also, apprehension of bodily harm. Rational basis to believe incoming violence
3. For abandonment, just need circumstantial evidence that spouse left with no intention to return and no reason for leaving.
27
How to get full divorce from legal seperation or get married status restored from legal separation
1. You can seek an absolute divorce later
1. If the grounds for permanent divorce existed before legal separation, can’t claim it for permanent divorce
2. You can also get it revoked if you get back together
28
Fault grounds for complete divorce
1. adultery, sodomy, or “buggery” outside the marriage
2. conviction of a felony involving a sentence of one year or more after the date of marriage
3. Desertion
4. Cruelty
29
Definition of desertion
1. absent from the home for at least 1 continuous year
2. if you leave for a justifiable reason, not desertion
30
Definition of cruelty
1. Any behavior that poses a danger to the life or health of the other party
2. Domestic violence
3. Mental cruelty-discretionary
1. Abusive speech, name-calling
2. But mere bad temper or an uncongenial nature is insufficient
4. Denying sex is cruelty if it is permanent and inexcusable
Courts require continuous pattern of conduct
31
The 4 defenses for fault-based divorce
1. Condonation
2. Connivance
3. Recrimination
4. SoL
32
Condonation
1. form of waiver
2. requires:
1. knowledge of the misconduct
2. forgives it, and
3. resumes cohabitation
3. Only can be used if the offending spouse agrees to not continue the conduct and treats the nonoffending spouse with conjugal kindness
33
Connivance
1. Spouse lured you in and duped you into engaging in the conduct
34
Recrimination
1. Both engaged in offsetting misconduct
2. Criticized because parties better off getting divorced anyway
35
SoL for adultery
5 years
36
Burden of Proof for Fault-Based Divorces
1. There has to be corroboration.
2. If there is no reason to think the injured spouse is colluding, slight corroboration is okay.
37
Types of No-Fault Divorces
1. Bilateral
2. Unilateral
38
Bilateral No-Fault Divorce
1. both parties must:
1. agree on getting a divorce
2. have no kids, and
3. have a separation agreement.
2. If they do these 3 things, all they have to do to get the divorce is live apart for 6 months
39
Unilateral No-Fault Divorce
1. Both parties must live separate for one year for court to grant divorce
40
Effect of separation period
1. still married.
2. can’t have sex with anyone else bc it’s adultery. Can’t have sex with your spouse because it would reset the clock to zero.
