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30 Cards in this Set

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TRUE/FALSE:

After divorce from bed and board, neither party may marry again during the other's lifetime.
TRUE!

After divorce from bed and board, neither party may marry again during the other's lifetime.

DIVORCE FROM BED AND BOARD = DIVORCE A MENSA
Following an ABSOLUTE DIVORCE, property acquired as TENANTS BY THE ENTIRETY becomes property owned by ________ IN __________.
Following an ABSOLUTE DIVORCE, property acquired as TENANTS BY THE ENTIRETY becomes property owned by TENANCY IN COMMON.

T/E----->T/C
DIVORCE: JURISDICTION

________ COURT (chancery side) has jurisdiction for suits:

o __________ marriage;

o AFFIRMING marriage; and for

o __________.

In other words, divorce is IN _________.
DIVORCE: JURISDICTION

CIRCUIT COURT (chancery side) has jurisdiction for suits:

o ANNULLING marriage;

o AFFIRMING marriage; and for

o DIVORCE.

In other words, divorce is IN EQUITY.
DOMICILE + RESIDENCE BOTH REQUIRED

For a divorce / annulment to be valid, at least _____ party MUST be:

o Bona fide _________ + ___________ of VA;

o For ____ MONTHS preceding suit.

HOWEVER, there is no 6 month waiting requirement for suits to ________ marriage!!!
DOMICILE + RESIDENCE BOTH REQUIRED

For a divorce / annulment to be valid, at least ONE party MUST be:

o Bona fide RESIDENT + DOMICILIARY of VA;

o For 6 MONTHS preceding suit.

HOWEVER, there is no 6 month waiting requirement for suits to AFFIRM marriage!!!
Upon separation, a wife can establish her own _________ DOMICILE.
Upon separation, a wife can establish her own SEPARATE DOMICILE.
VENUE

Preferred venue lies in ONE of three places:

(1) Where parties LAST __________ as husband + wife;

(2) At the option of ___, WHERE ___ RESIDES; and

(3) If D is OUT OF ________ or his WHEREABOUTS _________, WHERE ___ RESIDES.

HOWEVER, a court on its _____ _________, w/ proper _______ to the parties, can __________ the case to a preferred venue w/i _____ DAYS, but it is _____ obligated to do so.
VENUE

Preferred venue lies in ONE of three places:

(1) Where parties LAST COHABITED as husband + wife;

(2) At the option of P, WHERE D RESIDES; and

(3) If D is OUT OF STATE or his WHEREABOUTS UNKNOWN, WHERE P RESIDES.

HOWEVER, a court on its OWN MOTION, w/ proper NOTICE to the parties, can TRANSFER the case to a preferred venue w/i 60 DAYS, but it is NOT obligated to do so.
SERVICE OF PROCESS ON D

D may be served process in a DIVORCE / ANNULMENT action by:

(1) _________ SERVICE;

(2) SIGNING ________ OF SERVICE BEFORE ________ _________; or

(3) BY FILING GENERAL __________ BY COUNSEL in the suit.

NOTE: _______ compliance is necessary; otherwise, divorce / annulment will be ________.
SERVICE OF PROCESS ON D

D may be served process in a DIVORCE / ANNULMENT action by:

(1) PERSONAL SERVICE;

(2) SIGNING PROOF OF SERVICE BEFORE NOTARY PUBLIC; or

(3) BY FILING GENERAL ANSWER BY COUNSEL in the suit.


NOTE: STRICT compliance is necessary; otherwise, divorce / annulment will be INVALID.
DEFINITION

ore tenus
ORE TENUS: In court under oath.
CHILD SUPPORT

Upon divorce, it is determined by the court according to VIRGINIA CHILD SUPPORT GUIDELINES.

Amount of child support is calculated based on:

(1) COMBINED ________ GROSS _________ of BOTH parents; and

(2) NUMBER OF __________.

These guidelines are a __________ PRESUMPTION in any judicial proceeding.
CHILD SUPPORT

Upon divorce, it is determined by the court according to VIRGINIA CHILD SUPPORT GUIDELINES.

Amount of child support is calculated based on:

(1) COMBINED MONTHLY GROSS INCOME of BOTH parents; and

(2) NUMBER OF CHILDREN.

These guidelines are a REBUTTABLE PRESUMPTION in any judicial proceeding.
"PARENTAL GENEROSITY RULE"

This provides that _______ SUPPORT awards are _____ based solely on _______, but on PARENT'S _________ TO PAY.

Example: If parent's income increases, child support will also increase.
"PARENTAL GENEROSITY RULE"

This provides that CHILD SUPPORT awards are NOT based solely on NEED, but on PARENT'S ABILITY TO PAY.

Example: If parent's income increases, child support will also increase.
MARRIAGE LICENSE

A marriage license expires after _____ DAYS.
MARRIAGE LICENSE

A marriage license expires after 60 DAYS.
VOID AB INITIO MARRIAGES

This includes:

(1) ___________ MARRIAGE (LAST-IN-TIME REBUTTABLE ____________)

(2) _____________ MARRIAGE

(3) SAME-SEX MARRIAGE/CIVIL __________

(4) __________ MARRIAGE (16-18 w/o parental consent, under 16 w/o BOTH consent + doctor's certificate of pregnancy)
VOID AB INITIO MARRIAGES

This includes:

(1) BIGAMOUS MARRIAGE (LAST-IN-TIME REBUTTABLE PRESUMPTION)

(2) INCESTUOUS MARRIAGE

(3) SAME-SEX MARRIAGE/CIVIL UNION

(4) UNDERAGE MARRIAGE (16-18 w/o parental consent, under 16 w/o BOTH consent + doctor's certificate of pregnancy)
When Both Spouses are Guilty of Adultery
When BOTH spouses are guilty of adultery, the needy spouse may still request spousal support under no-fault separation divorce grounds.
Are SPOUSAL SUPPORT and MAINTENANCE to be considered in making an equitable distribution award?
NO!
A mother and father CANNOT alter, modify, or waive any child support terms in a PRIVATE CONTRACTUAL AGREEMENT w/o court approval.
Child support + custody are always MODIFIABLE.
SPOUSAL SUPPORT STATUTORY FACTORS

It is REVERSIBLE ERROR for the trial judge NOT to consider ALL the statutory factors in determining spousal support:
1. Earning capacity, needs, + financial resources

2. Education + training of parties

3. Standard of living established during marriage

4. Duration of marriage

5. Age, physical + mental condition of parties

6. Monetary + nonmonetary contribution of parties to marriage

7. Property interests

8. Provisions made in division of marital property
ADULTERY IS ABSOLUTE BAR TO SPOUSAL SUPPORT


UNLESS:
Adultery is an ABSOLUTE BAR to spousal support UNLESS the court determines BY CLEAR AND CONVINCING EVIDENCE that a denial of spousal support would constitute "manifest injustice."
How can SPOUSAL SUPPORT be paid out?
The court may decree, in its discretion, that SPOUSAL SUPPORT may be made in:

o PERIODIC PAYMENTS for a DEFINED DURATION;

o PERIODIC PAYMENTS for an UNDEFINED DURATION;

o In a LUMP SUM AWARD; or

o Any combination thereof
MODIFICATION OF DIVORCE GROUNDS
Either party who asked for a fault-based divorce can by motion, [w/o amending his bill of complaint], request a no-fault separation divorce after the requisite waiting period.
The parties CANNOT fix or waive child support or child custody obligations in a marital agreement.

* These are ALWAYS MODIFIABLE by the court!
However, H + W can contractually fix or waive SPOUSAL SUPPORT or MARITAL PROPERTY RIGHTS.
On annulment, a voidable marriage becomes a void marriage (but NOT void ab initio).
IMPORTANT DISTINCTION: Voidable marriages that are annulled, [but NOT void ab initio marriages], have MARITAL PROPERTY + SUPPORT RIGHTS.
SPOUSAL SUPPORT

Pendente lite awards: May be ordered by court during pendency of suit

ADULTERY is an absolute bar to spousal support (EXCEPT when both parties guilty, in which case needy party can still request spousal support)

STATUTORY FACTORS-------->
STATUTORY FACTORS FOR SPOUSAL SUPPORT:

- Earning capacity of spouse

- Education, age, physical condition of parties

- Duration of marriage

- Monetary/nonmonetary contributions
5 DEFENSES TO FAULT-BASED DIVORCE

o CONNIVANCE: Consent by a spouse to the offense of the other

o COLLUSION

o CONDONATION: Conditional forgiveness w/ understanding that it will not reoccur

o RECRIMINATION: Both equally guilty

o STATUTORY DEFENSE TO ADULTERY/SODOMY
Each action based on fault must be corroborated by third party
A void ab initio is an absolute nullity and CAN/CANNOT be ratified by any party.
CANNOT

Ex. Bigamous, incestuous, + underage marriage
Uniform Interstate Family Support Act (UIFSA)
Provides a method to enforce support duties across jurisdictional lines.
Premarital agreements are VALID in VA.

Requirements:
- Must be in writing

- Can cover anything

- Must be voluntary
Divorce a mensa et thoro (divorce from bed + board)
This is a legal separation.

Neither party may marry during the lifetime of the other.
Divorce a vinculo matrimonii (absolute divorce)
It extinguishes the right of survivorship + converts estates by the entirety to T/C.
Statutory grounds for divorce -

Divorce a mensa et thoro (from bed + board)
(1) Cruelty + reasonable apprehension of bodily harm

(2) Abandonment + desertion

- Intent to desert

- Actual breaking off of marital cohabitation
Statutory grounds for divorce -

Divorce a vinculo matrimonii (from bonds of matrimony)
(1) Adultery, sodomy, buggery

- Evidence must be clear + convincing

(2) Conviction of a felony

(3) Cruelty or desertion

- One continuous year

(4) Separation w/ no cohabitation

- Must live separate + apart w/o cohabitation for 1 year