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MATTERS PRECEDING MARRIAGE
- are typically to address economic issues in the event the marriage fails. But it can address anything.
- H & W enter into the agreement.
- Later they divorce.
- One party wants to challenge the validity of the agreement because he thinks the agreement is stingy, that he would get more from a judge.
- Practically, this person is the poorer spouse. Historically, it
- was the woman.
- If you do a separation agt, you’re supposed to say explicitly that you waive your right to judge equitable distribution
Uniform Premarital agreements Act
- It requires that the agreement be in writing; oral agreements aren’t enforceable.
- The law treats a premarital agreement like any other K.
- The principal ways of challenging are duress, fraud, and unconscionabilty, which can include significant unfairness.
- Beyond that, challenges for unconscionabilty can be for lack of a full financial disclosure.
- Other considerations include whether both parties knew that they were forgoing judge determination of assets, whether only one or neither was represented, if there was time pressure (duress), or if there was a significant difference in business experience.
- To get married in Va, there must be a ceremonial marriage - a license, so the state can ascertain if you have the capacity to marry (age, sound mind, opposite sex); and ceremony - officiant, any CC official can be an officiant, a witness; and an exchange of promises (no precise choice of words).
- Curative statute says any lack of authority in the officiant or defect in the license will not affect the validity of the marriage if the couple acted in good faith
- Annulments relate to a ground that predated the marriage; typically, a defect in capacity. By contrast, a divorce is based on grounds that arose after the marriage; historically, marital misconduct.
- Grounds for annulment are also called impediments.
- Some grounds make it void; other make it voidable.
- Void relationships don’t exist; you don’t need a decree of annulment to walk away.
- Voidable marriages do exist; you’re married until you get the annulment.
- Even if your relationship is void, you might still get an annulment for clarity of the record to third parties or to get a judge to help you with collateral matters, like property division and child custody.
- Grounds that make marriages void cannot be waived.
- Voidable grounds can be waived. Only the spouses have standing to raise voidable grounds.
- Void grounds can be collaterally attacked by a TP, so long as he has a valid interest in the proceeding (eg, brother contesting in intestacy)
Grounds for void marriage
- 1) purported same sex marriage;
- 2) bigamy (if you’re already married, you lack capacity to marry. The second marriage is void, not-waivable);
- 3) consanguinity (ancestors; descendants; siblings—whole, half, or adoptive; lineal relatives up (aunt) or down (niece) one generation; but you can marry your cousin);
- 4) infancy (18, but you can marry at 16 with the consent of one parent and under 16 if the woman’s pregnant and a parent consents)
Grounds for voidable marriage
- 1) mental incapacity (developmental disability, intoxication, insanity), which you waive by staying in the marriage after the incapacity is lifted/you retain your faculties, if ever (the case is litigated by a guardian);
- 2) duress (shotgun wedding), which you waive by staying;
- 3) incurable impotency (Christians/Mormons), and not just on occasion/can’t be fixed with a pill/not just frigid, waivable;
- 4) fraud, which arises when one party misrepresents/conceals information prior to the marriage that goes to an essential aspect of the marriage - failure to mention conviction of a felony, woman lies about paternity or man impregnates another woman, prostitution before marriage, misrepresentation of religion (whether in kind or degree, or upbringing), neglecting to mention infertility, that you’re children will have birth defects, or that you’ll never have sex.
- Lying about money, property, or status is not grounds
Even if you haven’t waived you have to bring your annulment within 2 years of marriage
- Divorce is sought in the chancery side of the CC or the special JDR court.
- For a Va ct to have SMJ to adjudicate a divorce, one spouse must be a domiciliary of Va and have resided here 6 months prior to filing the complaint.
- Divorce proceedings are in rem because the marriage is considered a res.
- For military personnel stationed in Va for 6+ months, there’s a presumption of domicile
Addt'l SMJ Issues
- If you have SMJ, you can get your marriage terminated.
- But if you want property awards, you have to have PJ over the other spouse.
- Long arm statute provides that PJ exists if Va was a previous marital domicile or if a party executed an agreement in Va, or fathered a child in Va.
- Venue is preferred where the parties last lived together, where D lives, or where P lives if D is a non-resident.
- The court can transfer to a preferred venue sua sponte or by motion of the other party.
- Failure to move waives.
Divorce a vinculo matrimonii
- Divorce a vinculo matrimonii (divorce from the bonds/chains of matrimony) - it can be fault based or no fault.
- Fault-based grounds are adultery, sodomy, or buggery with someone not your spouse. It requires proof by clear and convincing evidence. It’s usually stipulated.
- Or if your spouse is convicted to more than a year in prison.
- Finally, there’s cruelty (behavior that poses a danger to the life/health of the innocent spouse - domestic violence, even just one instance; mental cruelty, including persistent abusive language/humiliation, but mere bad temper or an uncongenial temper is not grounds, permanent and inexcusable refusal to have sex) or desertion (intentional and unjustified termination of marital cohabitation that persists for 1 yr)
- connivance (you induced me to engage in that misconduct - your set up to bust me for adultery was like entrapment);
- collusion (fraud on the court - when adultery was the only ground for divorce, couples would agree a party was adulterous, but would chicken out at trial. Now there’s no fault);
- condonation (a form of waiver - showing P knew of the misconduct, forgave D, and resumed cohabitation/sex);
- recrimination (like unclean hands, evidence that P is guilty of offsetting the conduct - “Maybe I am, but so are you.” It typically involves mutual adultery);
- 5 year SoL for adultery
Evidence for fault-based is insufficient if it’s uncorroborated testimony of a party. But only slight corroboration is necessary if there’s no reason to suspect collusion.
Divorce a mensa et thoro (from bed and board)
- Divorce a mensa et thoro (divorce from bed and board) - this is a court order that allows married people to not live, eat together.
- It doesn’t terminate the marriage.
- It’s what other states call a legal separation.
- Pragmatic reasons for doing this - marriage benefits, like health insurance and a preexisting condition; joint tax returns.
- Religious reasons - divorce is wrong, incapable of dissolution.
- Grounds for getting this include 1) cruelty and reasonable apprehension of bodily harm; 2) abandonment and desertion--it doesn’t have to be for 1 y, but you can convert it to a vinculo divorce after 1 yr.
- The mensa can always be transferred to a vinculo, unless the grounds for the divorce were known to you at the time of separation. There have to be new grounds.
- If the parties reconcile, they can ask to have the mensa decree revoked, and they go back to their ex ante marriage.
No fault divorce
- No fault divorce: if it’s by mutual consent, there must first be a separation agreement, where the parties live separate and apart for a continuous 6-month period.
- If it’s not mutual or mutual and there are children, the period of separation must be 1 year.
- During the separation period, you’re a married person, so cohabiting/sex another is adultery.
- Sex with your spouse starts the clock again.
- The 6-month period is therefore state-imposed celibacy.
DIVISION OF PROPERTY
- Va does equitable distribution. The alternative system is community property (8-10 Western states).
- For ED, we categorize all assets owned by the couple as husband’s separate property, wife’s separate property, and marital assets
- Property acquired before the marriage is separate property.
- Any gift/inheritance received by a spouse in her own name is separate property.
- Property acquired after the date of a separation agreement is separate.
- Pain and suffering of a tort recovery is separate.
- Passive appreciation of property of the above is separate
- Marital assets are everything else, regardless of whose name is on title or whose money was used to buy it.
- Appreciation on separate assets due to active effort of either party is a marital asset.
- Ex) owning a restaurant and making it worth a lot more by changing the menu, cultivating, promotion, etc. The pre-marriage value is separate; the appreciation is marital
Dividing Marital Property
- Marital property is divided by a consideration of factors:
- age and health of the spouse (old age, bad health is grounds for more),
- educational/career considerations (the poorer takes more),
- custody of minor children (mom takes the home, the van, and more money),
- the length of the marriage (the longer it lasted, the more a 50/50 division makes sense),
- tax consequences: whether collective liability would be minimized, and
- debts of either party, whether they’re legitimate, and should they be given more as a result
- The court usually expresses division in percentages.
- To implement that division, the court can order division in-kind (you get this; you get that) or order payment.
- There’s no presumption in favor of a 50/50 split of the assets.
- For pensions, payment to the other party cannot exceed 50% of the actual cash benefits received.
- Property division is supposed to be without regard to alimony.
Marital debts can be apportioned like assets, but don’t double count. If you divvy up the equity, don’t then assign the mortgage.
- extremely discretionary
- Alimony pendente lite: You can get alimony while the lawsuit is pending. It’s designed to protect the status quo during a long divorce.
- You can agree to alimony in a separation agreement, or you can ask the court for it.
- You can get it in either kind of divorce.
- The court can award either lump-sum (the wealthier, paying spouse is elderly/sick, so periodic payments might not work) or periodic.
- If the relationship was void, there can be no alimony.
Effect of grounds for divorce on alimony
- Adultery is the only absolute bar to alimony (unless one spouse would be absolutely impoverished) (denial would be a manifest injustice).
- Other grounds for divorce are considerations in determining whether to give and what amount of alimony.
- Alimony can adjust for a bona fide change in circumstances (getting laid off), that’s not engineered for the purpose of manipulating alimony (taking a lower paying job).
- The court isn’t allowed to put automatic escalator clauses in an alimony award (adjust for inflation). It has to be set specifically, and the modifications are litigated.
- If the order has a termination date or it’s indefinite and a party dies or the payee remarries, payments end.
- If the recipient cohabits with another person for 1 yr, the payor can move for a reduction/termination.
PATERNITY, CHILD SUPPORT, CUSTODY
- If a child’s born to a married woman, there’s a rebuttable presumption that she’s the biological offspring of her husband.
- H can rebut by saying that he didn’t have sexual access or is infertile.
- The presumption applies to artificial insemination if the husband consented.
- In that case, the law treats him as the biological father, and the donor has no responsibilities.
- Surrogate parenting is permissible in Va.
- The surrogate mother has a right to end the agreement within 6 months of conception.
- The surrogate mother and her husband are the child’s parents, unless the court approves the surrogacy agreement.
- Call children born to unmarried women non-marital children, not bastards or illegitimates.
- If a father acknowledges his paternity and the mother agrees, paternity’s proven.
- Alternatively, parties can litigate in a paternity suit by clear and convincing evidence - child called D daddy, they had a common first name, physical resemblances.
- The court can order DNA tests, and if there’s a 98% probability, the evidence is conclusive.
- Paternity establishes a duty of economic support. So a paternity judgment will likely also contain support and custody orders.
Uniform Child Custody Jurisdiction and Enforcement Act
- provides that custody is in the child’s home state: where the child has lived for 6 months with a parent prior to the commencement of a proceeding.
- In divorce, this is usually where the couple lived, so the court adjudicating divorce adjudicates custody.
- But say mom goes to jail, and Dad takes the kid to TN. He doesn’t move back to Va when she gets out. Dad refuses to give the kid back. TN gets to adjudicate custody, not Va.
- Once a home state enters a valid custody order, that state has continuing exclusive jurisdiction. If mom petitions a Va state court to get custody later, so long as one parent or the child continues to live in TN, no other state will take jurisdiction.
Determining Child's Best Interests
- Child custody is determined by the child’s best interests (BIC). It can be exclusive in one, or joint/shared between the two. There’s no presumption in favor of one or the other.
- To determine BIC, consider the
- age/physical and mental condition of the parents and the child, the relationship between the child and the two parents,
- whether there’s been a history of violence/abuse,
- placement with one would allow siblings to remain together,
- child’s preferences if he’s over 12,
- placement would allow for relationships with the extended family.
- For joint custody, consider whether parents have a cooperative relationship and live near each other.
- Adultery/gayness are not per se disqualifications. But the court can consider it.
- If either parent is in a new relationship, take the new person into account.
- If a nonparent (aunt, grandmother) and a parent have a custody dispute, there’s a rebuttable presumption that the BIC are with the parent. The nonparent must rebut the presumption that the child’s best interest is with the parent.
- If a custodial parent wants to move, he must give the court 30 days’ advance notice, and the court will only allow removal from the state if there’s a demonstration that the relocation is specifically in the BIC.
- This is to protect the visitation rights of the noncustodial parent and the BIC. Moves can be psychologically troublesome.
- Visitation rights aren’t dependent on payment of child support.
- If the custodial parent interferes, she can be held in contempt of the court.
- The court can provide for grandparent visitation.
- To obtain this right, a grandparent has to show exceptional circumstances or detriment to the child, which establishes a significant state interest sufficient to override the parent’s substantive DP rights to raise their children as they see fit.
- biological parents owe a duty of support.
- The custodial parent fulfills the duty through routine household activities.
- Support’s an issue only with regard to a non-custodial parent.
- In Va, a support order can be made by a judge or state dep’t of social services administrator.
- The obligation lasts until the child’s 18 and can be extended to his 19th birthday or when he graduates HS, whichever comes first.
- It can be extended all the way through the child’s adulthood if the child lacks the ability to provide for himself.
Amount of Child Support
- The amount ordered is fixed according to the Child Support Guidelines, a table based on combined income and number of children.
- The liability is the percentage of the noncustodial parent’s share of combined parental income.
- The court can depart the guideline number but its reasons must be on the record for appellate review.
- Reasons for departure can be special needs of the child
Child Support in Separation Agreement
- The parents can provide for child support in a separation agreement, but it’s subject to judicial oversight and modification.
- The court will approve options to make generous support in a separation agreement.
- If it’s for less than the guidelines, the court will likely reject it.
- Court orders of child support are subject to modification based on material change in circumstances.
- The payor’s remarriage, and the responsibility for after-born children is not considered material changes that are grounds for modification.
- An increase in the payor’s income is grounds for upward adjustment even if the child’s needs are already covered. The rationale is that the child has the right to share in the parent’s good fortune.
- Modifications are prospective. So if you fall behind because you lose your job but don’t petition for modification, the arrears are an enforceable debt
- many of the remedies are identical to those used to enforce alimony: wage reduction order, seize assets, contempt of court.
- In addition, we can take away your license to practice your trade/profession.
- You’re not entitled to counsel when you’re held in contempt if you have an ability to pay and you have the opportunity to respond to your financial status.
- It’s not contempt if you don’t have the ability
- the Uniform Interstate Family Support Act provides for direct enforcement of support orders across state lines.
- The custodial parent can mail the order to the nonpaying out-of-state parent’s employer or a court in that state.
- The court will then haul the nonpayer into court and make him pay.
- The first court to enter the support order has continuing exclusive jurisdiction so long as the child or parent lives in that state
Termination of rights can be pursued on 3 grounds
- 1) Neglect/abuse by clear and convincing evidence. The key issue is whether it poses a threat to the child’s life, health, development, and it’s not likely that the conditions can be corrected or eliminated. The finding has to be made that termination of the natural parents’ rights are in the BIC. Prima facie evidence of neglect abuse include illness rendering him unable to provide for his kid, parent’s addicted to drugs/alcohol, parent has habitually abused the child, and that the parent has failed to respond to the efforts of state agencies to improve the child’s condition.
- 2) Abandonment by clear and convincing evidence that the parent can’t be identified after a diligent effort to locate or that no parent has come forward within 6 months of the parent being placed into child care. This is usually a one-night stand where the father can’t be identified, and the BIC’s clear.
- 3) A child’s been temporarily placed in foster care and the parents fail to make contact with him for 1 yr, fail to prepare for his future, are unable to remedy conditions that led to removal, and it’s in the BIC
We terminate parental rights to make the child available for adoption. Adoption requires consent or its disposal. We’re trying to eliminate an abusive, abandoning parent’s veto power.
- In Va, you need the consent of both biological parents for adoption, unless their rights have been terminated.
- If you’re dealing with a non-marital child, the father’s consent isn’t necessary if his identity’s unknown or he doesn’t object within 21 days of being served with notice that his rights will terminate.
- If the adoptee is over 14, you need his consent too.
- If someone else has legal custody, you need that custodian’s consent.
- Once there’s been consent, there’ll be investigation to see whether the adopter’s suitable, and the child’s turned over.
- To adopt, you have to be 15 years older than the adoptee.
- Once the adoption’s finalized, it’s like any other family relationship.