FAMILY LAW

 

 CHAPTER 1 - THE FAMILY, THE LAW AND THE PARALEGAL

 

1. The marital relationship - primarily contractual

 

Marriage is a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential.

 

The law is very uncomfortable in this area.  The family is traditionally a private area, which the law enters only when serious problems have arisen.

 

Marriage is a status, originally formed by contract.  But the state also has added obligations which the parties have never considered...such as what happens when the contract is breached or voided.

 

The parties do have the power to modify these state-imposed obligations by agreement -- as long as the modifications do not violate public policy.

 

2. The role of law in the marriage

 

The state sets rules as to the creation of the marriage, the mutual obligations of the parties, sexual relations, parenthood and the dissolution of the marriage.

 

The principle issues of family law are primarily concerned with divorce: child custody and support, spousal support and equitable distribution.

 

Another major area of family law includes the parent-child relationship: paternity, legitimacy, adoption, etc.

 

3. State power over domestic relations law

 

The validity of the marriage is determined by the state of celebration (unless it is against the public policy of the state determining its validity).

 

But the legal incidents of the marriage (including divorce, annulment, property division, etc.) are determined by the state in which at least one of the parties is domiciled and a resident.

 

4. Federal power over domestic relations law

 

Although domestic relations is primarily considered under state law, some federal issues have arisen.

 

Religious freedom - Reynolds, v. U.S., 1978, S.Ct. - held that the public interest preventing polygamy outweighed the interest of the Mormons in practicing that aspect of their religion.

 

Thus, while a state cannot infringe on a person=s freedom of religion, it can regulate the practice of that religion when it affects public policy.

 

Equal protection

 

Interracial marriages were illegal in Virginia until 1967 when Loving v. Loving, S. Ct. found that law unconstitutional and found that marriage was a fundamental right guaranteed under the equal protection clause.

 

The Supreme Court also struck down a Wisconsin statute which conditioned the issuance of a marriage license on compliance with prior support obligations.

Zablocki v. Redhail, 98 S.Ct. 673 (1978)

 

In Turner v. Safley, 107 S.Ct. 2254 (1987), the court struck down a penal statute which allowed a prisoner to marry >only for compelling reasons= (which were not specifically defined).  It found that such a statute had no reasonable relationship with legitimage penal objectives.

 

The Illinois Supreme Court held that a state cannot discriminate in the issuance of a marriage license on the basis of sex (ie. older age for males than females).  Phelps v. Bing, 316 N.E. 2d 775 (1975)

 

And the Colorado Supreme Court held that a statute which prohibited a marriage between adopted brothers and sisters (which Virginia still has) violated the equal protection clause since it did not further any legitimate state interest in family harmony.  Israel v. Allen, 577 P. 2d 762 (1978)

 

5. Marriage as a partnership

 

It truly is a partnershiparrangement, with both sides giving towards a common goal.  It is not spelled out, however, and serious problems arise as to how to end the relationship economically.

 

6. The law=s interest in protecting children

 

The law=s duty to protect children puts it in the middle of conflicting approaches, dealing with marriage strictly as a partnership and also watching out for the children (in loco parentis).

 

The problems associated with surrogate motherhood demonstrate this problem.

 

7-8. Family law and the adversarial process

 

Lawyers are supposed to look out for the best interests of their clients.  However, ethically, they are also supposed to work toward a fair determination of the situation.  This is not always practical.

 

Ex.: Should a lawyer advise his client that the other party would be a better parent for the children?

 

From the text (p. 10) - ..=divorce attorneys see good people at their worst.... Both the lawyer and the paralegal risk burnout from the emotional problems constantly being delivered to their doorstep.  Clients may be pitiable one day and exasperating the next.  Attorneys and paralegals must learn to deal with this problem by mixing sympathy with objectivity.=

 

9. The paralegal role in family law

 

The paralegal, under the attorney=s supervision, may perform any of the following tasks:

 

a) initial interview (building a rapport with the client)

b) preparation of pleadings

c) drafting motions and orders

d) investigation and discovery

e) trial management

f) post trial tasks and appeals

 

CHAPTER 2 - ETHICS AND FAMILY LAW   

 

10. Confidentiality

 

The attorney-client privilege protects the client and applies not only to attorneys but to the law office staff as well.

 

It can only be waived by the client.

 

11. Conflict of interest

 

An attorney is not prohibited (for some reason unknown to me) from representing both sides in a domestic case, but it is inadvisable. Even though both sides feel they have worked their problems out, it does not really always work out that way.

 

And even if the property and child interests are worked out, the agreement may later turn sour and invite court action.

 

Ex.: the amount of alimony awarded may be thought insufficient -- or the way one party is raising a child may cause concerns to the other party.

 

12. Attorney=s fees

 

Contingency fees are considered unethical in domestic relations cases.

 

Hourly rates are probably best -- but they encourage >busy work= and needless court hearings on questionable motions.

 

Courts still have the ower to charge one party=s attorney=s fees to the other.

 

Time records must be meticulously kept.

 

13. Communication with the other side

 

It is unethical to communicate directly with the opposing party if that party is represented by counsel.  You must go through the party=s attorney.

 

If the party calls you, it is probably all right to talk to him, but it is questionable.

 

If the party is not represented, it is best to communicate in writing so as to keep a paper trail that will show he was not taken advantage of.

 

14. Unauthorized practice of law

 

Merely providing >do-it-yourself- kits with no accompanying advice on a particular case is probably all right ----- but there is a huge danger that advice will be sought by the party about options raised by the kit.

 

CHAPTER 3 - FAMILY LAW IN HISTORICAL PERSPECTIVE

 

While we follow the English common law in relation to property rights, the concept of adoption and divorce were created here.

 

15. Remnants of the medieval approach to marriage

 

It was a patriarchal society.  Men had the legal authority.

 

Women could not own property or make contracts.  Marriages were arranged for political or economic reasons.

 

Remnants of the medieval scheme: heartbalm statutes; seduction, criminal conversation (the tort action for damages for adultery -- injury to the spouse), breach of promise to marry, alienation of affections (malicious interference with the marriage by a third person)-- were all based on the economic/family alliance view of marriage.

 

The idea that the engagement ring belongs to the wife still remains and seems to follow this concept.

 

The common law principle that a husband could not legally rape his wife also follows this idea.

 

16. Annulment and divorce -- based on different approaches

 

Terminating the marriage was a religious matter under common law.  And this was often profitable for the church (creating the opportunity for substantial abuse).

 

 

Eventually, the idea of annulment (based on a premarital problem) was linked to divorce (for problems which arose after the marriage.

 

The divorce concept follwed the pattern of tort law (fault) and defenses (such as recrimination) whereas annulment was more in the nature of breach of contract

(due to some impediment).

 

>No fault= came about as the idea that the partners were equal and free to choose for themselves, gained acceptance.

 

17. Treatment of children

 

The common law was harsh as to illegitimate children, probably to protect the financial and economic interests of the male children within the family.

 

This did not follow in America which legitimized children born of any kind of marriage (even illegal ones) and supported the idea of adoption.  20-31.1: >The issue of marriages prohibited by law, deemed null and void or dissolved by a court shall nevertheless be legitimate.=

 

The tender years doctrine (now gone) of the 19^th century further reduced the paternalistic approach, giving the mother more rights than the father.

 

Eventually, the best interests of the child replaced the property rights/paternalistic approach of early times.

 

18. Rights of women

 

At common law, married women could not sue or be sued in their own name, or own property.  There was one unit and the man spoke for the unit.

 

Married women=s property acts of the 19^th century granted women the same legal status as men.  They couild own land, sue and be sued, and contract and do business in their own name.

 

55-36 - gives women the rights taken at common law by the marriage relation.  It specifically precludes a husband from claiming loss of consorium based on the wife=s injuries and has eliminated the defense of interspousal tort immunity.

 

It permits the parties to sue each other and the wife to sue or be sued in her own name.  The husband is exempted from liability for his wife=s torts and neither is held liable for the debts of the other.

 

19. Devolution of separate property upon death

 

64.1-1 - When a spouse dies intestate, all property goes first to the surviving spouse, unless there are children of the deceased spouse (who are not also children of the surviving spouse) in which case all property goes to such children subject to the dower or curtesty rights of such surviving spouse.

 

If there is no surviving spouse, all the deceased=s children share equally.

 

20. Changing lifesyles

 

The idea of the family is changing.  Homosexual marriages, surrogacy, single person adoptions, artificial insemination, sex-change operations -- all these are in need of legal clarification.

 

CHAPTER 4 - CURRENT ISSUES IN FAMILLAW

 

21. Rights of homosexuals

 

Will homosexual marriages be accepted? Or will they be granted rights normally associated with marital rights?

 

Do the laws, originally written to deal with traditional marriages, fairly apply to homosexual marriages?

 

22. Child abuse

 

Very hard cases --- extremes show up at both ends -- innocent parents accused of child abuse years after the alleged incidents -- and social services ignoring legitimate allegations of child abuse.

23. Mediation

 

8.01-581.21-.23

 

Uses a neutral third party (selected by the parties) to assist the parties regarding alimony, property disposition, child custody and support.  The parties will normally take a proposed settlement back to their attorneys for modification or approval.

 

A lawyer cannot act as a mediator and lawyer at the same time.

 

A mediator is not a therapist and is not trying to save the marriage.

 

Mediation is much cheaper than litigation.

 

Mediators must avoid giving legal advice (except as to that which relates to the legality of the agreement).

 

The materials and communications are considered confidential and are not subject to compelled testimony.

 

Even the mediated agreement can be kept confidential if both parties agree in writing.

 

Mediation allows the parties to work out their problems themselves rather than standing by and watching their lawyers do battle.

 

Mediation programs are immune from civil suit unless bad faith, malice or wilful and wanton conduct can be shown.

 

Virginia has no licensing requirement for a person to be a mediator.

 

Fairfax requires that both parties be sent to a mediation service before the case goes to trial although there is no requirement that the parties agree to use a mediator.

 

24. Marriage counselling

 

Some jurisdictions give the courts power to order marriage counselling prior to a divorce action.

 

Sometimes marriage counselling can in fact help the parties prepare for a divorce if the marriage cannot stay together.  Divorce is an emotional trauma that few people are really ready to cope with.

 

CHAPTER 5 - ANNULMENT

 

25. Annulment defined

 

The process of making something invalid.  It denies the validity of the marriage (whereas divorce terminates a valid marriage).   It is condidered void

ab initio.

 

26. Annulment and divorce distinguished

 

Annulment is based on a problem which existed when the marriage was formed (such as one spouse still being married) whereas a divorce is based on a problem which arose after the marriage was formed (such as adultery).

 

Annulments are theoretically retroactive (although most states, including Virginia, do not distinguish them from divorces as to the legitimacy of children, right to alimony, etc.)

 

27. Dirty hands doctrine

 

The equitable doctrine that a party must come into a court of equity with clean hands in order to claim relief.

 

Does not always apply here as the law is interested in determining the true relationship between the parties.  So that if the marriage does not exist, it does not matter who attempts to establish that fact.

 

In Virginia, fraud, duress and mental incompetency (all voidable) are not governed by the dirty hands doctrine.  The rest of the voidable grounds are covered. And all the void grounds (except for non-age which appears to be a mistake) are not governed by the doctrine.

 

28. The Void-Voidable distinction

A void marriage never existed.  There is no legal need (or in realtiy no legal possibility) to annul it.  Such an annulment is in fact merely a statement of nullity.

 

A voidable marriage, on the other hand, is valid until annulled.

 

29. Beginning of the void list - invalid without a license and ceremony (#1)

 

Solemnization is required in Virginia.

 

But there is no longer a requirement for a blood test and there is no waiting period.

 

A marriage license can be issued by the clerk of the circuit court in any county or city (20-14) and is valid for 60 days.  This cannot be extended.

 

The clerk is required to disseminate information to the parties about birth control, genetic disorders, AIDS and family planning centers.(20-14.2)

 

30. Marriage evasion statutes

 

Virginia makes it a misdemeanor (Class 2) to be married and to leave Virginia with intent to marry elsewhere and return to Virginia and cohabit with your new >spouse.= (18.2-363)

 

31. Persons authorized to perform marriages

 

Includes ministers of established religions, clerks of court (and those appointed by the clerks), and Virginia judges (including retired judges). (20-25)

 

32. Marriage valid in spite of lack of authority in person performing the ceremony

 

Provided it is otherwise lawful and the parties were acting in good faith.

 

33. Proxy marriages

 

Not statutorily recognized in Virginia, although there is no apparent reason why such marriages are invalid.

 

34. Common law marriages (#2)

 

 

Really a part of #1 -- a marriage without a license or ceremony.  It is formed when two persons, legally capable of marrying, hold themselves out as husband and wife, and in fact intend to be married.

 

Some states require a certain period of time elapse before they become valid.

 

35. When Virginia will recognize a common law marriage

 

Virginia does not recognize such marriages formed within the state, but will recognize those formed elsewhere.

 

They are not against Virginia=s public policy -- as this is merely a procedural requirement.

 

36. Same sex marriages (#3)

 

Not only are illegal when formed in Virginia but also when formed elsewhere and brought here (20-45.2)

 

Transexual marriages (a marriage after one party has a sex-change operation) was found valid in New Jersey, but probably won=t be in Virginia.

 

37. Bigamous marriages (#4)

 

Bigamy is a Class 4 felony for a married person either to marry in Virginia or marry outside Virginia and thereafter cohabit with that person in Virgina (18.2-362)

 

Stewart c. Commonweatlh, 11 Va. App. 216 describes 20-38.1 as making it a misdemeanor to marry someone who is already married.

 

Bigamous marriages are void in Virginia.

 

38. Enoch Arden

 

64.1-105 - allows a person to rely on the presumption of death after 7 years have passed if there is no indication during that time that the person is alive.

 

This would amount to a defense to a criminal prosecution - but in Virginia, the second marriage would still be considered invalid.

 

39. Incestuous marriages (#5)

 

Incest is a crime in Virginia.  It is defined as sexual intercourse with someone with whom the law forbids you to marry.

 

Virginia prohibits a marriage between an ancestor and a descendant, an uncle and a niece (and aunt and nephew), between brother and sister (whole blood, half blood or adoption).

 

You are therefore allowed to marry your first cousin in Virginia.

 

But not your adopted brother or sister (which makes no logical sense and is probably unconstitutional).

 

Note that when one is adopted, he is still considered a blood relative to his originally family, and the prohibition still applies to them.

 

 

 

40. The aunt/nephew - uncle/niece limitation

 

Virginia prohibits an aunt or uncle from marrying a niece or nephew unless the original marriage between the aunt and uncle is considered void.

 

20-39 - In the cases mentioned in the preceding section (the one describing ancestors, siblings) in which the relationhsip is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.

 

The statute adds confusion by using the word >divorce= to describe a void marriage.

 

41. No limitation as to >steps=

Virginia does not prohibit >steps= from marrying.  A stepmother, etc. is a description, not a legal status.     

 

42. What about former in-laws?

 

You are allowed to marry your former brother or sister-in-law.  Scholars have reached this conclusion because >affinity= was not included in the original prohibition about siblings.

 

43. Nonage (#6)

 

Persons can marry without parental consent at age 18.

 

The earlier age differentiation (males - 21/ females - 18) was found unconsitutional as a violation of equal protection.

 

Persons can marry in Virginia at 16 with parental consent (requiring only one parent=s consent).

 

And if the female is pregnant (or was pregnant during the prior 9 months), either side can marry under 16, with parental consent.  20-48 requires the presentation of a doctor=s certificate to the clerk of court.

 

44. Limitation as to which party can bring the action in Virginia

 

In Virginia, a marriage in which either party is underage is void.  But only the underage party is allowed to bring the action for annulment.

 

As this makes no sense (if it is void, what difference does it make who brings it?), it is believed that the legislature really intended to make it voidable at the option of the underage party rather than void.

 

This in some ways is the opposite of the dirty hands doctrine, allowing only the guilty party (the underage one) to bring the action.

 

Some states allow ratification (and therefore validation) of an underage marriage after the underage party comes of age --- Virginia does not.

 

Suit to affirm a marriage

20-90 - Virginia allows either party to a marriage to bring an action to establish its validity.

 

 

Voidable marriages

 

45. Fraud (#1)

 

Must go to the essentials of the marriage.  The representation must be material and be relied upon.

 

Misrepresentations as to religious beliefs, the desire to have children, etc. do go to the heart of the marriage.  But not representations as to wealth.

 

In Virginia, misrepresentations as to the lack of a former marriage was not considered to go to the heart of the marriage.  And a wife=s representation that she had been married only once when in fact she had been married and divorced 5 times was not sufficient for annulment. Sanderson v. Sanderson, 212 Va. 537 (1972)

 

According to the opinion, this follows the majority view (that prior marital status does not go to the essentials of a marriage).

 

The text cites a New Hampshire case which found it voidable, however.

 

Entering into a marriage with the previously formed intent never to consummate it through sexual intercourse would be grounds fpr annulment.

Pretlow v. Pretlow, 177 Va. 524 (1941)

 

46. Duress (#2)

 

Must have been sufficient to take away a person=s free will.

 

Virginia=s definition: >that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness.=

 

47. Incurable impotency (#4)

 

The inability to engage in sexual intercourse  -- not the same as sterility --

unknown to the other party.

 

48. Sham marriage (#5)

 

 

This is a marriage in which neither party intended it to be a marriage.  It was  in reality a joke.

 

Such a marriage should be called voidable rather than void.  -- The Virginia statute does not include it, but it is logical that if there is no intent to contract, then no contract comes into existence.

 

Query - suppose the parties only intend to be married to as to satisfy an immigration requirement or to legitimize a child?  Would that be called a sham?

 

49.  Mental incompetency (#5)

 

For some strange reason, Virginia calls this voidable rather than void, although it is arguable that there can be no meeting of the minds which is required in a contract when one of the parties is mentally incompetent.

 

Virginia prohibits the clerk of court from issuing a marriage license to a person who is insane.

 

A mentally retarded person may be able to enter into a valid marriage.

 

20-45.1 - All marriages solemnized when either of the parties lacked capacity to consent to the marriage at the time the marriage was solemnized, because of mental incapacity or infirmity, shall be void from the time they shall be so declared by a decree of divorce or nullity.

 

It is unclear in Virginia whether mental incapacity caused by drugs or alcohol would be included. Either position is arguable.

 

50. Annulment for conviction of a felony (#6)

 

It must have occurred prior to the marriage and the other party must have been unaware of it.

51. Annulment due to pregnancy or fatherhood (#7)

 

The female was pregnany by another man -- or if the male had impregnated another woman (and the child was born within 10 months of the marriage).

 

 

The innocent party must have been unaware of the situation at the time of the marriage.

 

52. Annulment due to prostitution (8)

 

Either party had been a prostitute prior to the marriage (unknown by the other party).

 

53. Consequences of an annulment

 

Virginia allows a court to decree as to any aspect of the marriage even though the marriage has been declared void.

 

And alimony, stopped due to remarriage (which is later voided), will not begin again.  But if the second marriage was void, a different result would likely occur.

 

Confidential communications, made during a voiddable marriage, are still considered privileged -- but not if made during a void marriage.

 

54. Statute of limitations as a defense to an annulment

 

In Virginia, an action to annul a voidable marriage may not be brought if 2 years have passed since the marriage was formed.

 

DIVORCE (not in text)

 

55. Virginia residency requirements

 

Virginia requires that either party have been both a resident and domicile of Virginia for at least 6 months prior to the filing of the action.

 

Military people, who have been here for 6 months, are presumed to have established both residency and domicile here.

 

56. Venue

 

The action may be brought:

 

 

a) where the parties last lived together as husand and wife (not where they last had sexual intercourse)

b) where the defendant resided

 

c) if the defendant lives out of state (or his whereabouts are unknown), then it may be brought where the complainant lives

 

57. In rem jurisdiction and ex parte divorce

 

Virginia can grant a divorce with only in rem jurisdiction.  This is known as an ex partedivorce.

 

It has power only over the status of the marriage and cannot award alimony, etc. with that kind of limited jurisdiction.

 

58. The divisible divorce doctrine

 

When a divorce is granted with only in rem jurisdiction, another court, later on, which has personal jurisdiction, may then rule on the traditional incidents of a divorce (alimony, property division, custody and child support).

 

In Virginia, under the divisible divorce doctrine, an action for property division must commence within 2 years of the receipt of notice of the foreign ex parte divorce.  This is not true if the action is for alimony.

 

59. Effect of improper venue

 

Cannot be claimed if neither party objected.  Improper venue is not jurisdictional.

 

60. Personal service of process

 

a) personal service - handing it to the respondent

b) substituted personal service

i) first, by leaving it at the home of the respondent with a family member (other than a sojourner or guest) of age 16 or older and by giving information of its import to the person accepting it      

ii) second, by taping it to the door of the respondent=s home

 

 

They must be attempted in the above order for substituted personal service.

 

Substituted personal service is just as valid as personal service - but personal service must be attempted first.

 

61. Service by publication

 

This is available only if the respondent is a non-resident or when due diligence has been exercised unsuccessfully in trying to locate where he lives. 20-104  

 

So if you know where he lives out of state, you may still serve him by publication.

 

An order of publication (which includes a basic initial pleading in the case) must be published once a week for 4 consecutive weeks in a newspaper designated by the court -- and it must be posted on the front door of the courthouse as well as being mailed to the last known address of the respondent (8.01-317)

 

Ten days must elapse after publication before depositions can be taken.

 

Service by publication will give the court only in rem jurisdiction.

 

Out-of-state personal service has the same effect as service by publication.

Out-of-state substituted personal service can be accomplished by leaving it with a family member over 16 who lives there, but not by taping it to the door.

 

62. Long-arm statutes

 

Virginia has a statute which gives it personal jurisdiction over out-of-state defendants. 8.01-328.1 - Personal jurisdiction may be exercised:

 

8. Having executed an agreement in Virginia which obligates a person to pay alimony or child support to a domiciliary of Virginia

 

Having been ordered to pay alimony or child support pursuant to a court order entered by a Virginia court which had personal jurisdiction over the respondent.

 

9. If the parties maintained their matrimonial domicile in Virginia when the separation and ground for divorce arose -- provided the complainant lives in Virginia.

 

Provided that service of process by made by sheriff or someone authorized to service process be made out of state.

 

GROUNDS FOR DIVORCE (not in text)

 

64. Grounds for divorce a vinculo matrimonii - need for clear and convincing evidence

 

All grounds for divorce and annulment must be established by clear and convincing evidence.  Between civil and criminal standard of proof.

 

And all such grounds must also be corroborated.

 

65. Adultery (#1)

 

Voluntary intercourse with someone other than your spouse (or by an unmarried person with a married person).

 

It can be established by circumstantial evidence alone (including inclination and opportunity).  Mere suspicious circumstances are not enough.

 

 

66. Felony conviction with penitentiary time (#2)

 

The respondent must actually enter the penitentiary and begin serving his sentence.

 

This differs from the felony conviction as a ground for annulment, which must have occurred prior to the marriage and does not require any particular sentence.

 

67. Cruelty + one year separation (#3)

 

For an absolute divorce, it requires that one year pass from the separation which follows the cruelty.

 

The cruelty which justifies a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe, or that involves danger to life, limb or health.

 

Cruelty normally consists of successive acts of ill-treatment, if not personal injury.  However, a single act of cruelty may be sufficient if (i) it endangers life, (ii) it is done with an intent to do serious bodily harm, (iii) there is a reasonable apprehension of serious danger in the future, or (iv) it is apparent that the act is likely to be repeated.

 

Unruly tempers, lack of patience and uncongenial natures are not grounds for divorce.

 

In Virginia, condonation will wife out the ground -- but a repeat of an act of cruelty will revive the ealier acts.  The latest act will not be looked at in a vacuum.

 

The unreasonable denial of sexual intercourse has been found not to be an act of cruelty.

 

68. Desertion for one year (#4)

 

Leaving against the will of the other party with the intent to stay gone permanently.

 

One year must pass before it becomes a ground for an absolute divorce.  And there can be no cohabitation during that time.

 

A single act of intercourse will not amount to cohabitation.

 

In Virginia, proof of this ground need only by by a preponderance of the evidence (not clear and convincing).

 

It is a misdemeanor for a spouse to desert or wilfully neglect his or her spouse or child under 18 (or any age if unable to earn a living) if such person is in necessitous circumstances.

 

Such cases are held in JDR court. 20-67

 

69. Constructive desertion

 

One spouse makes life so miserable for the other that he or she is forced to leave.  The spouse who stays is the deserter.

 

69A. Leaving the marriage without provocation but still free from legal fault

 

In Virginia, one may leave without being a deserter on less provocation that would amount to a ground for divorce.  This is a change in the law, which used to require that, in order to be a constructive deserter, one must have committed at least enough to amount to cruelty.

 

 

During the pendency of a divorce

 

A person who leaves during the pendency of a divorce will not be considered a deserter.

 

70. Effect of an offer of reconciliation

 

Virginia does not require the desertee to offer to reconcile before claiming desrtion.   However, if the deserter does make a good faith offer to reconcile, and the other side refuses, he or she will be deemed the deserter.

 

71. Insanity during the separation

 

In Virginia, if a person deserts and goes insane during the desertion period, the time will continue to run in spite of the insanity.  The deserter will be deemed to wish to continue to live apart. 20-93

 

 

 

 

 

 

 

 

 

 

 

 

 

72. The >no fault= divorce (#5)

 

Living apart for one year when at least one of the two parties desires it.

 

This is not mutual separation.  Only one party need want it.  In fact, that one party can be running away from the other party and the marriage.

 

And the time does not run while the parties are in fact living apart until at least one of them desires to be living apart.  The law wants the parties to be contemplating an end to the marriage during the period of separation.

 

The time has been reduced to 6 months if the parties have entered into a separation or property settlement agreement and there are no minor children of the parties.  20-91

 

It is called >no fault= because the defense of recrimination is not available for this ground.  It does not mean to imply that neither party was at fault in causing the breakup.

 

Insanity during the separation will not stop the time from running.

 

 

DIVORCE A MENSA ET THORO

 

73. Grounds

 

Virginia allows a limited divorce from bed and board for cruelty and desertion (20-105).

 

74. Merger

 

This then can be merged into an absolute divorce one year after the original separation (not from the granting of the limited divorce) has occurred.  Either party may move for the merger.   But notice to the other side is required when the guilty party is asking for it -- or if the injured party is raising new matters (not merely when seeking a merger). 20-121

 

The time requirement has been reduced to six months if there is a property settlement agreement between the parties and there are no minor children of the parties.

 

The court must find that no reconciliation is possible (or in fact has taken place) and that the separation has continued without interruption and without cohabitation since the granting of the a mensa decree.

 

If a party seeks a divorce from bed and board -- and during the pendency of the action the statutory period for merger elapses --- the court can simply enter a decree for an absolute divorce instead.

 

75. Revocation of a limited divorce

 

Upon the application of both parties, the court which issued it can revoke the limited divorce -- 20-120 -- such a revocation would reinstate the marriage without the necessity of another ceremony . Stewart c. Commonwealth, 219 Va. 887 (1979)

 

76. A limited divorce not a procedural requirement - simply an option

 

There is no need for a party to obtain such a limited divorce, however.  He or she can simply wait the statutory time and then seek an absolute divorce.

 

77.  Effect of sexual intercourse outside the marriage on a limited divorce

Sexual intercourse outside the marriage during this separation period is still considered adultery.  And the other side could still countersue for an absolute divorce on that ground.

 

But the only time the other side could sue for an absolute divorce after the granting of a limited divorce is when the ground sued upon was not existing and known about at the time of the granting of the limited divorce.

 

A limited divorce will have the same effect as an absolute divorce as to the power of a defendant-spouse in a criminal case to block the testimony of the spouse against him.  -- They are not considered married and the defendant-spouse cannot block the testimony.  Stewart v. Commonwealth, 219 Va. 887 (1979)

 

20-116 - Property acquired after the granting of a limited divorce is considered separate property.

 

78. Separate maintenance

 

Virginia allows a suit for separate maintenance and also allows the court to order it when the grounds for a divorce or annulment fail (unless the marriage is deemed void).

 

Such a suit can be brought in the JDR court.  And there are no domicile or residency requirements for this action.

 

TRADITIONAL DEFENSES TO DIVORCE (not in text)

 

79. Collusion

 

An agreement between the parties to procure a divorce.

 

This would include the commission of an act with the consent of the other spouse in order to obtain the ground. Such a scenario would not work anyway since a ground has to be against the will of the other party.

 

This is seldom seen as the parties are the only ones who would normally speak up.

 

80. Recrimination

This is the defense in which the complainant is alleged to also have committed a fault ground (not necessarily the same one which is the ground of the divorce action).

 

Note that the respondent using this defense need not also countersue on that ground for a divorce -- it can be used merely as a defense to the divorce action.

 

81. Provocation

 

One side provokes the other into committing the offense.

 

This is really a form of the dirty hands doctrine.

 

The action must be in reasonable relation to the provocation.

 

82. Connivance

 

>One who has consented to misconduct is not injured by it.=

 

The complainant must have actively created an opportunity for the other to commit the marital offense.  Mere acquiescence is not enough.

 

This would include hiring another to seduce your spouse, and then claiming adultery.

 

83. Condonation

 

Forgiveness of a marital wrong.  In Virginia, cohabitation after knowledge

constitutes forgiveness.

&nbs