VA DR Essays Rule Statements Flashcards
divorce a mensa et thoro (legal separation)
no waiting period
cruelty and reasonable apprehension of bodily harm
abandonment and desertion, intent to desert and actual breaking off of cohabitation, can’t be desertion if grounds to leave
divroce a vinculo matrimonii (absolute divorce based on fault)
1) adultery, sodomy, or buggery
2) conviction of felony with confinement more than one year
3) habitual cruelty
4) desertion (or constructive desertion: cruelty forces one spouse to leave or willful neglect of marital duties) after one continuous year
adultery is a ground for divorce, although _____ is a defense
voluntary cohabitation after knowledge of the adultery
recrimination
countercharge in a suit for divorce that the complaintant has been guilty of an offense consititiong a fault-based ground for divorce of the same degree
no-fault divorce
no kids, seperate for 6 months and property agreement,
kids, one year
spousal support considers
1) earning capacity of parties,
2) education and training of the parties,
3) standard of living established during the marriage, duration of the marriage,
4) age and physical and mental condition of the parties,
5) monetary and nonmonetary contributions, property interest, marital property division, taxes
absolute bar to spousal support
adultery, unless the court determines from clear and convincing evidence it would be a manifest injustice
division of marital assets
50/50 or more or less if fair and just
when the divorce is granted, the right to spousal support is extinguished if
it is not mentioned or reserved in the divorce decree, or if it is not reserved by the court
child support after decree of divorce
court may revise or alter a decree concerning care, custody, and maintenance of children, or make a new decree as may be required by changed circumstances
right of children to support from their parents cannot be
privately or contractually altered or modified by agreement between parents or by a property settlement agreement
adultery can be proved by
circumstantial evidence, as long as clear and convincing and proof is strict, satisfactory and conclusive
each ground of divorce must be accompanied by
third party corroboration
condonation
forgiveness of an act that may constitute a ground for divorce bars the right to divorce based on that act unless the forgiveness was conditional
constructive desertion
leaving was made necessary by other’s cruel or offensive conduct, or under same roof but willful breach of and neglect of marital duties that destroys home life
desertion, unlike adultery, which is a crime, need not be proved by
clear and convincing evidence
the court can impute income to a spouse who
voluntarily reduced his income
virginia will give full faith and credit to an ex parte sister state divorce if
a bona fide legal residence has been established
an ex parte divorce is based on the plaintiff’s
physical presence before the court, with due process notice or constructive service given to the absent defendant
bilateral divorce is based on
physical presence of both spouses before the forum court
adjustment of support or property can be accomplished only through
a bilateral proceeding, although, a divorce may be granted ex parte
delinquent spouse on spousal or child support payments
court can order payment of the arrearage in child and spousal support, misdemeanor charges
desertion
actual breaking off of matrimonial cohabitation with intention to desert continuously for one year
marital property the court may
order transfer to one of the parties, permit one party to purchase the interest of the other, or order sale of it
support can be paid either in
periodic payments for defined duration, undefined duration, lump sum, or combo of above
virginia will recognize a common law marriage validly contracted in another jurisdiction, so long as
the six-month domiciliary requirement for divorce in Virginia is met
marital property includes
all property titled in the names of both parties and all other property acquired by each during marriage unless there is a showing it’s separate
child support is based on
gross monthly income of parents, set according to Virginia child support statutory guidelines. Judge cannot deviate unless jusitfied in writing
a parent is not required to pay for child’s higher education absetnt
a marital agreement to the contrary
a virginia court has jurisdiciton over a marriage if
one of the spouses is present in virginia
in a bilateral divorce, ____ is required
in personam jurisdiction
it is only when a court has in personam jurisdiction that it may
modify or extinguish a persons rights in marital property and determine support
if the court does not have jx over one party in marriage, it may still dissolve the marriage, but
any award of support or division of property is subject to attack at a later time
will have p jx over a spouse who doesn’t live in VA if
execute agreement to support child or spouse in VA, matrimonial domicile of the parties, child conceived or born in VA
in adoption cases, natural parents are
favored, but presumption can be rebutted by clear and convincing evidence
to adopt a child, consent is required from
each living parent of child born in wedlock unless rights and responsibilities of parents have been terminated by the terms of divorce or by judicial order that it’s in the best interests of the child
court can terminate parental rights where it finds
parental unfitness, voluntary relinquishment, abandonemnet, special facts and cirumstances
separate property may be transmuted into marital property when
there is appreciation in the vlaue of the property due to the active efforts of either of the parties during the marriage, but if can be traced stays separate
a child’s home state is
the state in which the child lived with a parent for at least 6 consecutive months before the proceeding began
va has jx to enter a child custody orderi
if VA is the child’s home state on the date of the commencement of the proceeding or was the child’s home state within six months beofre the ocmmencmenet of the proceeding and the child is absent from VA but a parent conitnues to live there
divorcing spouses may contract broadly regarding
the buying, managing, alientating, or disposing of property upon divorce
if an obligor moves for a reduction in child support payments, he must prove that
there has been a material change of circumstances that justifies the reduction an that his lack of ability to pay is not due to his own volunary act
virginia has exclusive, continuing jx over child support order as long as
obligee, obligor, or child remains in virginia
support payments are modifiable only
prospectively
for one state to grant full faith and credit to a judicial decision of another state, three requirements must be met
1) the court that rendered the judgment must have had jurisdiction over the parties and the subject matter
2) the jdugment must have been on the merits
3) the judgment must be final
cohabit
parties living together in the same house as married persons live together, or in the manner of spouses
a bill for divorce will not be granted on
the uncorroborated testimony of either party
property is presumed to be marital property if it is jointly owned, unless
there is a title, deed, or other clear indicia that it is not
separate property is
1) acquired before marriage
2) during the marriage by gift or inheritance
3) property acquired during the marriage in exchange for separate proeprty, provided that the property is maintained as separate property
4) acquired after the last separation ofthe party
sources of fund doctrine
marital property and separate property are commingled by contributing one category of property to another, resulitng in loss of identity of contributed property, so tranmustated to marital property. However, to the extent that it is traceable and not a gift, it retains original classification
gift requirements
donative intent, delivery, acceptance
in determining custody and visitation of a minor child,
court gives primary consideration to best interest of the child.
presumption that its in the best interest of the child to award custody to
the parents, but no presumption between them
in determining best interest of child, factors
- age and physical and mental condition of child/developmental needs
2) age and physical and mental condition of each parent
3) relationship between child and parent
4) important relationships like siblings and peers
5) role parent has played in upbringing
6) propensity of each parent to allow other parent to see
7) willingness of parent to maintain close relationship with child
8) preference of the child if he’s old enough to express one
9) history of abuse or force that was less than 10 years ago, then you can ignore 6
10) others
when both spouses are guilty of adultery, the needy spouse may request support, provided
the divorce/separation is on no-fault grounds
a court may affirm, ratify, and incorporate by reference in its decree of divorce any valid agreement between the parties concerning
disposition of proerty and payments for support or maintenance, becomes term of the decree and enforceable as any other provision
court methods for enforcing support payments
withholding from earnings, interception of tax refunds, criminal prosecution, contempt of court
