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72 Cards in this Set

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What are the two types of divorce decrees in Virginia?
Mensa et Thoro (from Bed and Board, Separation); A Vinculo (Absolute Divorce)
What are the grounds for Separation?
Cruelty, Fear of Harm, Abandonment, Desertion
Those hanging CHADS just won't SEPARATE
What must be found for cruelty or fear of harm?
threat of bodily harm; dangerous cohabitation; danger to life and limb
What are some typical activities that (standing alone) will not give rise to a finding of cruelty?
Alcoholism, denial of sexual intercourse (unless permenant and unjustified), eviction, differences in personalty, general unhappiness
PAUSE
PAUSE before acting CRUELY
Is a single instance of bad behavior enough to support a claim of cruelty?
No, usually must be successive unless the act is expecially heinous or threatens serious harm or death
What must be proven to show abandonment?
1) discontinue co-habitation; 2) with intent to desert
How long must one be away from the home to give rise to a claim of abandonment?
It does not matter, any time will matter, the intent at departure is what matters
Will every departure with intent not to return give rise to claim of desertion?
No, if at the time of the departure there are GROUNDS for divorce; the remaining spouse makes remaining intolerable (the raging BITCH); mutual CONSENT; pending DIVORCE
BiG CoD
What do you NOT want for DESSERT, a BiG CoD
How long do you have to wait before filing for separation?
No waiting period
What are the grounds for divorce?
Adultry, Conviction of Felony, Cruelty or Desertion
How long must you wait before filing for divorce based on adulty?
No waiting period
What is the standard for proving adultry?
Clear and convincing evidence
What must occur before a divorce based on conviction of a felony may be had?
1) felony conviction; 2) one year sentence; 3) one year confinement; 4) no co-habitaiton after notice of confinement
What is the difference between cruelty and desertion in the separation and divorce contexts?
In the divorce context must wait one year after relevant act before filing
What is constructive desertion?
Where one spouse through their cruelty forces the other to leave the marital home
How must the desertion period run?
Continuous, though a single sexual iterlude without intent to reconcile doesn't matter
What happens if a spouse fails to follow their spouse to a new residence, is that desertion?
Not if the non following spouse is justified in not following their spouse, because of the departing spouses conduct
What are the pre-requisites to a no fault divorce?
1) a one year uninterupted separation; 2) if no kids and written separation agreement a six month separation
What state of mind must the parties have at the time of the initial seperation in order for availability of a no fault divorce?
At least one party must have intended to be seperated permenantly
How can seperation prior to a no fault divorce be proven?
It must be proven by specific evidence, not only representations of counsel
What are the defense to fault divorce?
Connivance, Collusion, Condonation, Recrimination, Special Adultry Defense
Adultry defensive driving = C3ARs
What is Connivance?
Approval and encouragement of the fault
Waht is Collusion?
A fraud committed on the court by the parties
What is Condonation?
Forgiveness of the specific act without later re-offense
What is Recrimiation?
Two bads don't make a right
What is the special rule relating to Recrimination?
The bad act of the other party must be within the grounds for the type of divorce sought, ie. separation or absolute divorce
What are the special defenses relating to adultery?
wimps, temps, and pimps
1)co-habitation with knowlege of the offense; 2)more than five years ago; 3) the claiming spouse coordinated or encouraged the affair
Who can't claim adultery? wimps, long temps, and pimps
What is the rule of coroboration?
The divorce must be coroborated by either third parties or proof independent of the parties, though where there is no evidence of collusion the proof need only be slight
What is the exception to the rule of coroboration?
Defense to desertion need not be coroborated
How does a separation decree affect an ability to seek a divorce decree?
It does not, unless the party seeking the separation knew of the facts supporting an absolute divorce at the time of filing for separation
Is a separation decree revocable?
Yes at any time, but the parites must formerly request revocation, also if the action is filed and not acted on for five years it is withdrawn
What is the rule of merger?
A seperation request can merge to absolute divorce at request for either party is any time during proceedings they become seperated for one year, without reconciliation, is six months if written separation agreement and no kids
What special rights do servicmen have relative to divorce proceedings?
the court can stay and must stay proceedings upon request of a serviceman unless the court finds that the ability to prosecute or defend is not materially affected by service
Can the court exclude a spouse from their home?
Yes, upon reasonable aprehension of harm to the excluding spouse; if ex parte for 15 days after service on exclude spouse, but can be extended in 15 day increments
What responsibility does the court have in an equitable distribution case?
1) Determine value of property; 2)Catagorize property; 3) Determines rights in marital property; 4) Determine amount of award
VCR-A
The judge distributes VCR-A
What kind of equitable distribution state is VA?
Dual property
What is typically characertized as "seperate property"?
1) Acquired before marriage;
2) Behest or gifts;
3) Property exchanged for seperate property;
4) Property acquired after seperation.
BEGS
He BEGS the court to find that its seperate
How can seperate property become marital property?
Marital effort increases the value
Who bears the burden of proving that increases of value were passive?
The party seeking to classify gains as seperate property
What is marital property?
1) Jointly Titled Property; 2) Property acquired during marriage
What is the effect of classifying property as marital?
It merely indicates that the court must consider whether to divide the property amoung the parties in an equitable manner
What is transmutation?
Changing seperate property to marital property by intermingling
What is the source of funds doctrine?
To the extent that seperate contrinuted to acquire marital property, without donative intent, the contributing spouse retains a proportionate seperate share of the property, if can prove source of funds by a preponderence of the evidence
How does the court deal with jointly held property?
1) convey to one party; 2) order sell to one party; 3) order public or private sale
What factors must be considered when issuing a money award, based upon non-jointly owned property?
1) Contributions to family and value of property;
2) Duration of marriage, ages;
3) Circumstances of divorce;
4) How property was acquired;
5) Parties Debts;
6) Marital share of work benefits;
7) Liquidity of property;
8) Tax effects;
9) Other factors
Pension, Liabilities, Age/Duration, Contributions, Circumstances, Other, how Acquired, Taxes
Give me a MONEY AWARD not that PLAD C2OAT
How does marital debt affect marital assets?
It can be deducted
How can waste of assets be considered?
If one party waste marital assets in anticipation of divorce or for a reason unrelated to marriage, than the waste can count against them
How can pensions be distributed?
In lump sum (immediate offset) or payment over time (deferred distribution)
What part of a pension is distributed?
No more than 50% and that portion earned or vested during the marital course
Are IRAs pensions for equitable distribution purposes?
No
Equitable Distribution of Personal injury awards?
Marital property, except to extent it is proven they are compensation for wholly personal injuries
Equitable Distribution of Professional Goodwill?
Yes
Equitable Distribution of Professional Liscences?
No
What are some factors to look at in connection with divorce settlements?
Are they intergrated?
Duress, Fraud, Unconscionable
What are some examples of void divorce settlements?
A adulturous spouse who plays on their spouses desire to reconcile in order to get an unfair distribution; An attorney who draws up his own unfair divorce settlement
When can a VA court distribute property after a foreign divorce?
1) Domiciliary party;
2) No pj of domicilary by foreign court;
3) within two years of notice of decree;
4) court has pj over parties.
What are the equitable distribution criteria?
1) award factors;
2) no presumption of 50/50 split;
3) may but need not consider marital fault;
4) unclean hand not a bar.
What is the doctrine of economic fault?
A doctrine by which courts have held that signs of bad acts during the marriage do not effect equitable distribution, though noneconomic factors contributing to the downfall of the family can influence distribution
At what time is property valued?
Value at the time of the evidentiary hearing
How is a closely held corporation valued?
A flexible valuation is used but factors considered include:
1) age and hx of biz;
2) outlook of industry;
3) book value of biz;
4) biz earning capacity;
5) dividend paying capacity of biz;
5) value of intangibles;
6) market price of similar stocks
How is goodwill valued?
Discretion of court, if based on competent evidence and acceptable methods
What is a pendente lite award?
An award made during litigation compelling payment for 1) maintenance and support; 2) payment to continue suit; 3) allow for spouse's liberty; 4) support kids; 5) preserve home; 6) preserve estate; 7) compel abidance security
suit, home, estate, kids, abide, liberty, maintenace
Pendente lite makes sure SHE KALM
How is spousal support paid?
Lump, periodic fixed, periodic unfixed, or combination, but not to estate of deceased spouse
How does adultury effect spousal support?
No support unless would result in "manifest injustice" and both adulturous and a "no fault" divorce
What factors are considered when awarding spousal support?
1) earning capacity;
2) needs;
3) financial resources;
4) training;
5) standard of living;
6) Duration;
7) Age;
8) Contributions to family;
9) Property interest;
10) Marital property factors;
11) Others
Spousal support helps you
T E N D F O S C A M P
What is an escalator clause?
A provision that lets support increase with increases in income, not proper, instead must move to modify
What can a judge order relative to life insurance?
Can not require purchase of life insurance, but can require maintenance of life support for benefit of children
When spousal support be not given?
Adultury; Equities do not favor support; Waiver (but can be reserved)
How is child support calcualted?
By refference to support guidelines
Is the court required to adhere to support guidelines?
It is presumed that the guidelines set out the proper support amounts absent a written finding that application would be unjust or inappropriate
What factors must be considered when deviating from the written guidelines?
1) Age;
2) Financial Resources;
3) Standard of living;
4) Earning capacity, etc. of parents;
5) Training of parents;
6) Contributions;
7) Marital property factors;
8) Other
When I call the kids they C O M E F E A S T
When does child suport cease?
18 unless 1) Not HS Grad; 2) at home; 3) no income until, grad or 19