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52 Cards in this Set
- Front
- Back
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What are the ways to challenge a prenup?
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1. Duress
2. Fraud 3. Unconscionability |
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What facts will the court look at if a prenup is challenged?
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1. Full financial disclosure
2. Both parties were represented 3. Extreme time pressure 4. Respective level of business experience 5. Knowledge of rights waived |
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What are the requirements for a prenup?
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1. Signed
2. In writing (on oral agreement may be recognized if there is detrimental reliance and part/full performance) |
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May a prenup be amended/revoked after marriage
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Yes, as long as it is signed and in writing.
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If a marriage is deemed void, what happens to the prenup?
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It is enforceable only to the extent necessary to avoid an inequitable result.
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What are the 2 general procedural requirements to get married?
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1. License (lasts 60 days)
2. Ceremony (ceremonial marriage required) |
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What must be done at a wedding ceremony?
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1. Officiant
2. One witness 3. Exchange of promises (Curative statute: any defect in license or officiant qualifications won't affect validity if good faith) |
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What 4 grounds make a marriage void?
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1. Same sex marriage
2. Bigamy 3. Consanguinity 4. Underage |
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Which relatives cannot be married based on consanguinity?
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1. Ancestors
2. Descendents 3. Siblings 4. Aunts/uncles 5. Nephews/nieces |
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What happens if a marriage is void?
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No annulment is needed. Ground cannot be waived.
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What are the age requirements so as not to make a marriage void?
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-At least 18
-At least 16 w/ parental consent -Under 16 if the woman is pregnant |
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What 4 grounds make a marriage voidable?
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1. Mental incapacity
2. Duress 3. Incurable impotency 4. Fraud |
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What is the voidable ground of mental incapacity?
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Mental illness/developmental disability/intoxication. This ground is waived by staying in the marriage after recover faculties.
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When will incurable impotency be a voidable grounds?
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Can only come up if parties didn't have sex before marriage. It is waivable.
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What is the time period for bringing an annulment suit?
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2 years
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What are the statutory fraud-based grounds that make a marriage voidable?
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1. Conviction of 1 party of a felony before the marriage w/o knowledge
2. Woman carrying a child and lies about paternity 3. Man impregnates woman who gives birth within 10 months after marriage 4. One party was a prostitute before the marriage and no knowledge |
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What are other non-statutory fraud-based grounds that make a marriage voidable?
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1. Religious grounds
2. Lies about procreation/sex (and other things that are essential to the marriage) |
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In which court should a divorce be filed?
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Chancery side of CC (or special family court if available)
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How does a court acquire subject matter JX over a divorce proceeding?
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1 spouse is domiciled in VA and resided there for at least 6 months
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What JX is necessary for a person to obtain alimony/property distribution?
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Personal JX. Other spouse must be located in VA or reachable by Long Arm Statute:
-VA was previously marriage domicile -Prenup agreement executed in VA, or -Had a child in VA |
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Which 2 grounds for an absolute divorce don't require a waiting period?
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1. Adultery, sodomy, or buggery
2. Spouse is convicted of a felony and sentenced to more than 1 year in prison |
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What are the 4 grounds for absolute divorce that require a 1 year waiting period?
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1. Physical cruelty
2. Desertion 3. Constructive desertion 4. No fault divorce based on 1 year separation |
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When can a divorce be obtained with only a 6 month waiting period?
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A no fault divorce where there are no minor marital children.
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What is an absolute divorce called?
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Divorce a vinculo matrimonii
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What is a divorce from bed and board called?
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Divorce a mensa et thoro
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What are the grounds for a divorce from bed and board ("a mensa et thoro")?
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1. Cruelty or reasonable apprehension of bodily harm
2. Willful desertion or abandonment |
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What are the 4 affirmative defenses to fault based divorce?
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1. Connivance
2. Collusion 3. Condonation 4. Recrimination |
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What is the defense of connivance?
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P induced D to engage in the conduct (like entrapment)
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What is the defense of collusion?
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(people used to use this to commit fraud on the court)
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What is the defense of condonation?
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The innocent spouse learned of the conduct, forgave D, and resumed cohabitation
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What is the defense of recrimination?
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P is guilty of offsetting misconduct.
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What is the statute of limitations for an adultery case?
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5 years
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Which property is considered separate (non-marital) property?
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1. Acquired prior to marriage
2. Gift/inheritance received in sole name 3. Assets acquired after separation agreement 4. Pain and suffering component of tort recovery (Plus passive appreciation in the above) |
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Which property is considered marital property?
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All other property (plus appreciation on separate property due to active effort of either party)
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What types of factors will the judge look at in distributing marital property?
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1. Age/health
2. Educational/job prospects 3. Length of marriage 4. Debts (etc.) |
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What is it called when alimony is received while the divorce suit is pending?
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Alimony pendente lite
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Is adultery a bar to alimony?
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Generally yes, unless doing so would constitute a manifest injustice.
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How does marital fault affect alimony?
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No form of martial fault other than adultery is an absolute bar to receiving alimony (but fault may be taken into account in determining the distribution).
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When can an alimony award be modified?
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Based on a bona fide change in circumstances.
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When does alimony terminate?
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-Death of either party
-Remarriage of recipient |
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If a child is born of an unmarried woman, how is paternity established?
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-Man acknowledges paternity and mother agrees
-Paternity established through clear and convincing evidence (can be established via DNA test of 98% certainty) |
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Which state has JX over child custody proceedings?
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Child's home state (lived there w/ parent for at least 6 months)
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What must a non-parent show to get custody of a child?
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Best interest + unusual circumstances
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If a custodial parents wants to relocate to another state, what must she do?
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-Give court 30 days notice
-Court will determine whether relocation is in child's best interest |
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When can the terms of a child custody agreement be changed?
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Finding that child's best interest has changed due to new circumstances
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What must be shown to establish non-parent visitation?
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Exceptional circumstances or detriment to the child (establishes a compelling state interest)
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What is non-custodial parent visitation NOT contingent on?
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-Making child support payments
(and custodial parent can get contempt for interfering w/visitation) |
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How is the amount of child support determined?
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1. A total amount is calculated based on both parents' income with reference to the child support guidelines
2. Non-custodial parent pays percent of total support as determined by his income |
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On what grounds may a child support award be modified?
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Non-custodial parent's material change in circumstances
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What are the enforcement mechanisms for non-payment of child support?
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1. Wage reduction order
2. Seize assets 3. Contempt of court 4. Take away license to practice trade/profession |
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Which types of consent are necessary for adoption?
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-Both biological parents unless TPR
-If non-marital child, unknown father's consent not needed -If father of non-marital child is served and does not object w/in 21 days, he loses right to object to adoption -Child must also consent if over 14 -If a third party has legal custody she must consent |
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How are marital debts distributed?
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They are apportioned like marital assets.
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