VA Domestic Relations Flashcards
While professional goodwill is considered marital property upon divorce, these are not:
While professional degrees and licenses are not considered marital property upon divorce, this is:
This kind of property is not subject to division upon divorce
Separate or pre-marriage acquired property for divorce is not:
Required disclosures for enforceable marital agreements include
Reasonable disclosure of financial status, including income, assets, and liabilities of all parties is required for enforcement of this
This type of individual may have a marriage annulled
An unemancipated minor (under age 18) can do this to a marriage
A marriage may not be annulled/voided solely because this did not occur
A marriage without solemnization under license by a person not legally authorized to solemnize will not be:
A court may modify spousal support orders upon what?
A finding of a “material change in circumstances” may permit the court to do what?
A material change in circumstances can be either:
This can either be 1) something not reasonably in the parties’ contemplation at the time of the original award; or 2) the non-occurrence of some event anticipated by the court in making the award (through no fault of the party seeking change)
A material change in circumstances must not be:
This must not be voluntary or foreseen
A final circuit court decision involving divorce is appealable where?
The Court of Appeals hears these for divorces by right
This type of property is considered marital property, even if it is not exercised until after the marriage:
Unexercised stock options are considered this in a divorce:
These types of property acquired during the marriage are not subject to equitable distribution:
Property acquired 1) by bequest or devise other than the other spouse; and 2) by gift from a source other than the other spouse is considered this in a divorce
A birth parent can revoke consent to a final decree of adoption if either:
If 1) consent was obtained by fraud/duress or 2) the birth parents & adoptive parents/agency agree in writing, this may occur prior to issuance of a final decree of adoption
An absolute, no-fault ground for divorce may be decreed by application of either party to a marriage if:
This may be granted if the spouses have lived separate and apart without cohabitation and interruption for one year
A non-parent requesting visitation in opposition to both of the child’s parents (or sole surviving fit parent) must do what?
This person requesting visitation must show by clear and convincing evidence that denial of visitation would cause actual harm to the minor child
For durational residency requirements, Virginia requires what for divorce?
One spouse must be a bona fide resident and domiciliary for a minimum of six months prior to this occurring?
To retain authority to modify a divorce decree, a circuit court must do what:
A circuit court must specifically state that it retain its jurisdiction to adjudicate a matter and move to do so within 21 days of entry of final order for this to occur:
A spouse may testify against his/her spouse in a criminal case, but:
This person cannot be compelled to testify, but the opposing party may object to disclosure of any confidential communications made while married
Spousal support terminates upon what:
This terminates automatically upon remarriage of spouse receiving support (unless otherwise stipulated)
A felony conviction of either spouse can be grounds for an annulment if:
This can be ground for annulment if it 1) predates the marriage and 2) the party seeking annulment was unaware of this at time of marriage
Types of Divorce: A vinculo matrimonii
This is an absolute divorce
Types of Divorce: A mensa et thoro
This is just a legal separation
Grounds of Divorce: A vinculo matrimonii
For this, the grounds can be 1) adultery/sodomy/buggery; 2) felony conviction - over 1 year; 3) desertion from home w/out justification & continuous for 1 year; 4) physical cruelty -danger to life/health; 5) mental cruelty - endangers life/health
Defenses to Fault-based Divorce: Condonation
Knowledge of fault, forgiveness of fault, and resumption of cohabitation provides this defense to fault-based divorce
Requirements for ceremonial marriage:
To do this, must be 18/emancipated minor, under license and lawfully solemnized
Solemnization requirements:
No witnesses, authorized religious figure/judge/GA member/AG, no residency req., must occur w/in 60 days
Imperfections with marriage:
Strong presumption of validity; defects/omissions do not void if lawful in other respects & parties believed marriage
Common-law marriage requirements:
This requires parties to 1) agree they are married, 2) cohabit as married, and 3) hold themselves out to be married (Not permitted but recognized from other states)
Heart balm action (and what’s permissible):
No civil suits for money damages based on jilted party’s reputation, but gifts in contemplation of marriage are permissible
Void Marriage:
This is treated as if it never happened/no need to judicially dissolve/not legally recognized for any purpose (save legitimacy of children)
Void Marriage: Grounds
Bigamy (former existing marriage; good faith belief defense), Incest, and nonage (underage; party of age cannot sue to annul)
Voidable Marriage: Grounds
Ground for this are: fraud, duress, mental incapacity/infirmity, intoxication, felony conviction, impotency, concealed parenthood, and prostitution
Voidable Marriage: Defenses
Defenses to this are: Cohabitation after knowledge of facts, laches (must be w/in 2 years of marriage), estoppel by conduct, other (lack of jurisdiction, res judicata, collateral estoppel, failure to meet burden of proof)
Judicial separation (from bed and board/a mensa et thoro):
This extinguishes each spouse’s right in property acquired post-separation; no remarriage while other is alive; spousal support may be awarded
Judicial Separation: Grounds
Grounds for this are: cruelty/reasonable apprehension of bodily injury, abandonment/willful desertion
Judicial Separation: Conversion
This may be converted into an absolute divorce after 1 year or 6 months w/no children and a PSA, no hope of reconciliation
Absolute Divorce: No-Fault Grounds
Grounds for this marriage dissolution require: Living separate & apart w/out cohabitation/interruption for one year OR six months with no chidren and PSA
Absolute Divorce: Fault Grounds
Grounds for this marriage dissolution require: adultery/sodomy/buggery, conviction of a felony, willful desertion, cruelty
Absolute Divorce: Defenses
These must be plead affirmatively: Provocation, res judicata, recrimination, collusion, connivance, condonation, statutory these to adultery
Equitable Distribution: Marital Property
This is generally property acquired by either party during the marriage and all property titled in the name of both parties
Equitable Distribution: Nonmarital Property
This is property acquired during marriage by one spouse as gift/inheritance, passive income/increase in value of this property, real/personal property acquired before marriage, property acquired during marriage in exchange for this type of property, if maintained
Part marital/part separate property: Examples
Substantial increase in value of separate property by efforts of either party, retirement benefits earned during marriage, workers compensation & personal injury awards that accrued during marrage
Marital Debt (subject to ED)
This is incurred in joint names of parties pre/post marriage, or either party’s name after marriage/before permanent separation (unless for non marital purposes)
Separate debt (not subject to ED)
This is incurred by either party before marriage/after permanent separation (unless to benefit marriage/family)
Factors to consider for Marital Property Distribution
For this, courts consider: marriage duration, contributions for family well-being, contribution to acquisition/care/maintenance of property, age/physical/mental condition of parties, grounds/fault for dissolution, how/when items were acquired, debts/liabilities of each spouse, character of property, tax consequences, dissipation of marital funds in anticipation of divorce, etc
These are not marital property/subject to ED:
These are not considered for this: Professional licenses/degrees, separate property that is traceable & not a gift, expectancy (possible future interest), social security
These ARE marital property/subject to ED (special)
These are considered for this: Professional goodwill, comingled/retitled in joint names separate property, stock options acquired during marriage
Tax treatment for Equitable Distribution
Property in this is treated as tax free for the parties (same tax basis between the two
Divorce Jurisdiction: Residency Duration
This is six months immediately preceding action
Divorce Jurisdiction: Venue
This is the county/city where parties last cohabited OR where Defendant resides (P’s choice) OR where P resides (if order of publication issued)
Divorce Jurisdiction: Long-arm
This is provided over an out of state D in paternity matters/support orders & agreements; must have VA resident P, with D holding marital domicile in VA at time
Divorce Jurisdiction: Divisible Divorce
If court lacks this over Defendant it can grant divorce & award marital property inside Virginia, cannot award support/divide property outside VA
Divorce Jurisdiction: Out of state Divorce Status
This is given full faith and credit; property and support award are given full faith and credit only if foreign court had this, otherwise VA court decides
Spousal Support: Factors
For this, courts consider: obligations/needs/resources of parties (including pension income, profit sharing, retirement), spouse’s standard of living, duration of marriage, age/physical/mental capacity on spouse, feasibility of seeking work outside home, contributions to family, property interests, ED provisions, earning capacity, education/training/employment/parenting as well as other’s contribution to these
Spousal Support: Fault
This is considered when awarding spousal support; not awarded for adultery unless “manifest injustice”
Spousal Support: Modification
Must find “material change in circumstances of parties”
Spousal Support: Termination
This occurs when either party dies, spouse receiving it remarries or cohabits with another in marriage-like relationship for one year (unless unconscionable)
Spousal Support: Reserve future support
A court may do this for a party to receive in the future, with orders for it entered after July 2020 requiring proof of material change in circumstances
Child Support: Right to support
Each parent is legally required to do this; nonpayment does not deny them visitation; can privately agree so long as no release/compromise that would negatively affect child
Child Support: Nonmarital Children
These cannot be denied child support; may inherit from father’s estate upon proof of paternity; will become marital if parents marry and recognize child
Child Support: Paternity Evidence (no time limit unless sub related to reasonable gov interest)
This can be brought when and requires reliable genetic tests, voluntary statement of father and mother under oath acknowledging, or other evidence (open cohabitation/sexual intercourse, medical evidence, consent to use surname, claiming child on tax return/other filed document)
Child Support: Marital child presumption
This is rebuttably presumed of married woman’s husband; preponderance of evidence showing another father/impossibility of conception by husband rebutts
Child Support: Assisted conception
Considered marital child if of the married woman and husband consents
Child Support: Surrogacy
With court-approved agreement, these are legal parents reflected in birth certificate; if not approved, rights are with genetic parent; can relinquish if at least one of 2 intended parents are genetic
Child Support: Award
This is based on the guidelines, including parental income of any source and applied regardless of marital status; can be retroactive from date of petition, and may also award attorney’s fees
Child Support: Income-sharing model
A child should receive the same proportion of parental income as if parties continued living together;
Child Support: Deviation
Court may deviate from these in written finding that application would be unjust/inappropriate based on statutory factors (custody arrangements with travel, imputed income to voluntarily underemployed parent)
Child Support: Modification
For this to occur, a material change in circumstances regarding child’s needs/parent’s financial situation must be shown; no reduction for voluntary reduction in own pay; not retroactive, only applied as change occurs
Child Support: Termination
This occurs when the child reaches 18/is emancipated, or extended to 19/HS graduation (whichever is first) when living at home and not self-supporting
Child Support: Jurisdiction
A court cannot modify child support order entered in this unless parties no longer reside there or expressly agree to permit another state to exercise this; court granting child support retains this
Child Support: Tax Consequences
These are not income to recipient/deductible by payor, and court has authority to grant parent the right to take this exemption for these purposes
Child Support: Enforcement of Awards
Civil (pay or go to jail)/criminal (go to jail for period of time) contempt for failure to pay this, interception of tax refund/garnishment of wages; UIFSA applies for out of state orders, with issuing state laws governing
Child Custody: Legal Custody
This is the right of a parent to make major decisions about child’s life
Child Custody: Physical Custody
This is the right of a parent to have child reside with parent and obligation to provide routine daily care and control of child
Child Custody: Joint
To have this, both parents must be willing/able to cooperate w/ respect to child’s well being and best interests; legal, neither is superior decision maker; physical, does not necessarily mean 50-50 time sharing
Child Custody: SMJ
VA has this for custody hearings if VA: Is & has been child’s home state for 6months/since birth if >6months, OR was child’s home for 6months, is now absent, but parent still resides
Child Custody: Significant Connection Jurisdiction
VA can do this for child custody if no other state is home jurisdiction, child & parent have at least 1 significant connection to state, and substantial evidence of child’s care/protection/training/relationships
Child Custody: Default Jurisdiction
If there is no home or significant connection, Virginia can do initial this:
Child Custody: Exclusive Jurisdiction
After making initial ruling on this, Court retains this as long as child/parent of child reside in VA
Child Custody: Best Interests of Child Standard Factors
Factors for this include age/physical/mental condition of child & parent, relationship between them and care role, needs of the child.
Child Custody: Declining Jurisdiction
Otherwise competent jurisdiction may do this for inconvenient forum, if party engages in injustifiable conduct, or retain over divorce while still making these determinations
Child Custody: Temporary Emergency
This is available if child is in danger and in emergency; no prior PO - then the emergency stays in place until decision is rendered
Child Custody: Enforcement of Another State’s Order
Registration need not be accompanied with request for this; an expedited one will be held on 1st possible judicial day after service; warrant may be issued for custody if child likely to suffer serious physical injury/removed from state
Child Custody: Parental Kidnapping Prevention Act
This applies to interstate custody disputes and kidnappings, taking precedence over conflicting state law; prohibits parent from removing child from US and obstructing other parent’s custody
Child Custody: Non-Factors
Cannot contemplate Race or Religion, only Parent’s sexual conduct if it has/will have negative effect on child
Child Custody: Third Party Rights
Parents are presumptively entitled to custody of their children against these; EXCEPT when parent is unfit, lost/relinquished/abandoned child.
Child Custody: Child preference
This is generally taken into account if child is of sufficient maturity
Child Custody: Siblings
These are generally not separated from one another in custody hearing
Child Custody: Domestic Violence
History of family abuse, sexual abuse, child abuse or act of violence/threat/force that occurred within 10 years prior to petition are considered for this:
Visitation: Noncustodial parents
This person is allowed reasonable time with child, denied only when they would be serious danger to child’s health; may be restricted supervision/overnights/etc on the basis of adverse impact on child of parent’s sexual relationship/cohabitation\
Visitation: Third parties generally
A fit parent’s fundamental right to care/custody/control of his child must be given “special weight”; court’s prefer parents over these
Visitation: Grandparents
Subject to “Special weight”; if opposed, must show: denial of this would cause actual harm to child (only if opposed by both parents), and that it will serve child’s best interests.
Visitation: Stepparents (excludes)
These are included in “any person with a legitimate interest”; specifically excludes 1) those whose parental rights were terminated, 2) whose rights derive from those that were terminated, or 3 who have been convicted of rape
Visitation: Unwed biological father
This person has fundamental right to contact w/ child if he demonstrates commitment to the responsibilities of parenthood
Child Custody; Enforcement
This may be enforced through sanctions like compensatory visitation, attorney’s fees & court costs, fines, and jail time. Tort damages may be awarded for period of time child is wrongfully out of this
Child Custody: Modification (two types)
To do this, a change in circumstances must have occurred and must be in the best interests of the child; for relocation, notice must be provided to court and other party 30 days prioir; for cohabitation, only changed if having adverse impact on child
Child Custody: Termination
Upon a child reaching age of majority or custodial parent’s death, typically surviving parent is awarded this
Child Custody: Parental Consent Medical Care
This must be obtained regardless of marital status (except emergency); if other won’t do this/ based on religious beliefs contradictory to child and it is life/death emergency, state has right to intervene
Child Custody: Parental Consent Upbringing
A parent holds this right, including decisions related to religion; however, they cannot sterilize a mentally incompetent child unless clear & convincing in best interests
A premarital agreement does this:
This is effective upon marriage (marriage is sufficient consideration, but Virginia does not require consideration for marriage)
A separation agreement does this:
This can define property division, spousal support, child support/custody/visitation, with spousal support/property division enforceable unless unconscionable
A property settlement agreement does this:
This can settle economic issues of marital estate and is entered into prior to final decree of divorce issued
Marital Agreement: Enforceable
This is enforceable if: Parties fair and reasonably disclose financials status, not unconscionable, is voluntary, in writing signed by both.
Marital Agreement: Modification
A provision that prevents this for property rights/spousal support must be enforced; it cannot be enforced for child support
