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33 Cards in this Set
- Front
- Back
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Recrimination
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Both parties come to the court having committed faults.
The parties may not get a fault based divorce if they have "unclean hands" A no fault divorce with 1 year separation is the proper decree. |
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Value of Marital Property
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Property is valued at time of hearing.
FMV is standard for value of the property A party may request a different valuation date prior to the hearing. |
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Character of Marital Property
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Marital property: property that was acquired during the marriage
Separate Property: Property acuqired before marriage, Property acquired during marriage from sources acquired before marriage, Property may be separate property but the spouse grows the separate property and thus the growth may cosidered marital property. Property that is inherited or gifted to one party |
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Spousal Support
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Court may order for:
-defined or undefined time period -or Lump sum Factors considered: -reason for divorce (if adultery then no support) -financial positions of parties -party's contribution to marriage |
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Settlement agreement
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Parties must have a settlement agreement and be separated for 6mos(no kids) or 1 year (with kids)
The settlement agreement is not binding as is pertains to child support |
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Custody of a child
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Factors considered:
-age and physical/mental condition of child -age and physical/mental condition of each parent -relationship between each parent and the child -preference of child if he is of age and ability to provide input |
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Confirmation of award
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Once an award is made the court shall confirm upon application from either party
-judgment is entered and docketed as with any other decree. |
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Arrearages in support
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Court will compel party to pay arrearages in support
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Changes to suport agreements
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Court may change the amount or time of support if moving party can show a material change in circumstances.
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Child support changes
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Court may change child support agreement upon showing of material change in circumstance by preponderance of evidence
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disobedience of court order
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Court make a finding of contempt if party acts in bad faith or willful disobedience to court order.
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TbyE upon divorce
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TbyE changes to TIC upon divorce
-partition by physical division or by sale -physical partition preferred unless impractical. Partitions may be voluntary or involuntary |
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Marriage requirements
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-license
-ceremony |
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Will court change property distribution?
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No, court will make no provision for modification of property distribution.
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Effect of Cohabitation on spousal support
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if ex cohabitates in marriage like situation for more than 1 year then court may terminate support unless K says otherwwise or would be unconscionable.
-must prove by clear and convincing evidence |
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Common Law marriage in VA
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VA does not authorize common law marriage but does recognize common law marriage from other states.
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Consequences of Marriage
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-Reciprocal duties to support each other economically.
-Sexual exclusivity |
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Prenuptial Agreement
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Lays out property distribution upon termination of marriage. Is in writing and Signed before marriage and takes effect upon marriage.
-Spouse must sign voluntarily and the deal must not be unconscionable: ~whether parties were represented by counsel ~was there time pressure ~business sophistication of parties ~whether weaker party understood the nature of rights they were giving up. >Prenup is unenforceable if the person against whom enforcement is sought proves that: -agreement unconscionable -substantively unfair -there was nondisclosure of assets |
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Annulment
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Grounds are:
-impediments prevent a full valid marriage from coming into existence |
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Void marriage
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Void Marriage = not married
-don't need annulment or divorce Grounds for Void Marriage: -Bigamy -Same Sex marriage -Consanguinity -non age (under 18) ~if under age must have parental consent |
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Voidable Marriage
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-Marriage is valid so must get an annulment.
-If voidable can waive defect -if voidable can only be collateraly attacked by one of the two spouses >Grounds: -incapacity -duress -fraud (most often tested) |
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Timing of Annulment
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must file within 2years of being married
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Divorce Jurisdiction
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Court: Circuit court
SMJ: -one spouse domiciled inVA (bona fide resident for 6 mos) Long arm statute: -conceived child in VA -parties lived here as spouses -suppor agreement executed in VA >Venue: -Preffered Venue: where parties last lived -where plaintiff resides or -where defendant resides |
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Kinds of Divorce
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1. Divorce Mensa et thoro (from bed and board)
-must get legal separation -if parties reconcile can get decree revoked 2. Divorce Vinculo Matromoni (from bonds of matrimony) -true and absolute divorce |
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Fault based divorce
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Types of fault:
-adultery -conviction of felony -cruelty or desertion |
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Defenses to Fault based Divorce
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-Condonation (waiver-forgiveness)
-Connivance (entrapment) -Collusion (fraud on court) -Recrimination (unclean hands) |
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No Fault Divorce
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Marriage is irretriveably broken
-bilateral: both parties agree that marriage is broken, settlement agreement is made and separation for 6mos or 1yr(if kids) -Unilateral: 1 party wants divorce or there are kids then separation is 1yr. |
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Property Division
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Marital Property (acquired during marriage)
Separate Property -inherited or gifted -attained prior to marriage |
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Alimony (spousal support)
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Can be lump sum or payments
Can be given prior to dissolution (alimony pendente lite) Court looks at many factors to determine if needed and how much -Modification: if material change in circumstances -Termination: at end of specified period at death at remarriage or cohabitation for more than a year |
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Enforcement of Allimony
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Attach to wages
Seize property and sell it Contempt proceeding |
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Parent Generosity Rule
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Provides that child support changes may be based on ability to pay as well as need.
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Procedure of Divorce Proceedings
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>Testimony
-court may require testimony >Corroboration -divorce cannot be granted on the uncorroborated testimony of one or both parties. -purpose of corroboration is to prevent collusion >Award of Costs -court awards costs as equity and justice require >Right to resume former name -upon decree of divorce from bond of marriage and petition of court by party it must allow them to resume former name. >Mediation -for unresolved civil matter court may order mediation -The order sends the couple to an "orientation session" -if court orders mediation it must give paries notice and opportuntiy to object as expeditiously as possible. >Arbitration -arbitration agreement must be upheld unless against public policy or unconscionable |
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Child support considerations
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A party cannot K out of support.
The court must look at a complex set of guidelines that contain formulas for how much a party must pay. If a court does not make a parent pay it must give reasons for that. "The court must make written findings as to why guidelines are inappropriate." |
