West Virginia Bar - Family Law

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Is there any breach of the promise to marry in WV?: No, like most states, WV has abolished "heart-balm" statutes
Must gifts in contemplation of marriage be returned? (engagement rings, etc...): Yes, but the intent of the donor will be considered to determine if the gift was made in anticipation of marriage
What are the age limitations on marriage in WV?: - 18
- between 16 & 18 with parental consent
- under 16 will parental consent and judicial approval (best interest standard)
- marriages in violation are voidable, not void
What is the standard for mental capacity?: To comprehend and voluntarily agree
What effect does physical impotency have on validity of the marriage?: It is a voidable marriage
What status is a marriage that is performed without a license?: Void
Are medical exams or blood tests required in WV?: No
Is there a waiting period for a marriage license?: 2 days must elapse from the time the application is filed
- unless emergency or extrordinary circumstances, the judge can order the clerk to issue a license
How long is the license good before it must be solemnized?: 60 days or the license is void
Are proxy marriages permitted in WV?: No
What if the official is not authorized to perform marriages in WV?: If the parties have a belief that the marriage is valid, it will be deemed valid if it is lawful in all other respects and has been consumated
What level of consent is necessary?: to enter fully into the marriage contract;
no trial marriage
What are 2 ways that a marriage can be deemed void or voidable?: - Fraud, duress, nonage, etc

- where public policy dictates that the marriage was improper: bigamy, impotence
Is a sham marriage considered valid?: Courts will determine: taking into consideration intent, public policy,
Does WV have common law marriage?: No, but will recognize one if it is valid in that state
Can the court divide property between unmarried cohabitants that hold themsleves out to be married in the community?: Yes, as long as if a party was married, the division does not adversly affect the spouse or children of that party
Are pre-martial contracts/antenuptial contracts valid?: Yes, if neither party is a minor
Do antenuptial agreements fall within the Statute of Frauds?: Yes, they must be written and signed by the party to be charged
Can there be an amendment or revocation after the marriage?: Yes, must be written and signed by both parties
How will the court enforce an antenuptial agreement if circumstances have changed during the marriage?: Courts examine the birth of children, a change of position based on reasonable reliance of the performance
What are 3 requirements of antenuptial agreements?: - Voluntariness
- Full and Fair Disclosure: both parties of their financial worth
- Fair and reasonable economic provision
Do both parties need to retain independent counsel?: No, still valid even if only one retains legal counsel at the time the agreement was executed
Is the concept of Tenancy by the Entirety recognized in WV?: Yes
What does Tenancy in the Entirety include?: - if spouses take title to property in both their names, Tenancy in the Entirety is presumtively created
- Includes a right of survivorship
- Prohibits the conveyance or encumberance of the property by one spouse
What becomes of a Tenancy in the Entirety when the marriage is dissolved?: The parties become Tenants in Common by operation of law
What kind of discretion is used in WV courts to determine the property division when a marriage dissolves?: Very broad;
Does WV allow for a husband to contractually relieve himslef of the common law duty to provide for his wife?: No (may be of questionable validity under Equal Protection analysis)
In WV, spouses are not liable for each other's debts unless the debt is:: - medical services, while residing together as married
- medical services for minor children while residing in the family
- the rental of property occupied by spouses while married
Purchases by one spouse can hold both spouses liable if they are for:: - support of the family

- joint benefit of both spouses

- reasonable services of domestic worker or any other person from which the family benefitted

- reasonable apparel for spouses or minor children
Can the husband be held liable for reasonable support of the wife and children while they are abandoned by the husband?: Yes
Must a woman change her name after marriage?: No, it's not required
Is there a martical exception for rape in WV?: No
Are spouses responsible for each other's torts in WV?: no, each is liable seperately
Are contracts enforceable between spouses?: Yes, as long as the contract is written and signed by the party to be charged
What is the only area of family privacy that can be regulated by the government?: Abortion
If the government wishes to regulate a fundamental right (other than abortion) what governmental interest must be shown?: a narrowly tailored, compelling state interest
Why is abortion regulated by the government?: Because the state has a compelling interest in protecting the health of both the woman and the fetus
What is the pre-viability rule?: If the fetus is not yet viable outside the womb - state may adopt regulations protecting the woman or the fetus if the regualtion does not impose an undue burden on the woman's right to the abortion
Must a husband be notified prior to a wife's abortion?: No, it is an undue burden
May the state ban all partial-birth abortions?: No, that would not make any exception for the woman's health
May children be educated in the home?: Yes, subject to the state's right to prescribe reasonable standards
What is Spousal Immunity in testimony?: One spouse may not be compelled to testify against the other.
- In federal court, the testifying spouse may choose to testify over the objections of the other
- In state court, the party spouse may object and prevent the testimony of a spouse
Can Spousal Immunity be invoked after the termination of the marriage?: No, it must be during the marriage, but may apply to matters occuring before the marriage.
In what cases are the Spousal Immunity rules inapplicable?: Crimes against the testifying spouse or children
Describe the Privilege for Confidential Marital Communication?: This privilege allows refusal to disclose (and to prevent the other from disclosing) confidential communication made while married, in confidence in reliance upon the intimacy of the maital relationship.
Does the Privilege for Confidential Martial Communication survive divorce?: Yes
Is there a privilege between parents and children?: No, it has been recommended, but not accepted
Which is the only cause of action left in WV for tortious interference with the marital relationship?: Negligent Interference with Consortium or Services
What is Negligent Interference with Consortium or Services?: Injuries caused by negligence of the defendant to a spouse
Are Alienation of Affection and Criminal Conversion valid causes of action in WV?: No
What 2 types of marriages are subject to annulment?: Void and voidable marriages
What is the difference between a void and a voidable marriage?: A void marriage was never vaild, no subsequent act can ratify the marriage, any interested party can seek an annulment

When the marriage is voidable, a spouse must bring the action to have the marriage declarded void because of an impediment existing at the time of the marriage. Voidable marriages are deemed valid until annulled.
What grounds constitute a voidable marriage in WV?: Bigamy

Consanguinity

Insanity or imbecility

Veneral disease

Incurable impotency

Nonage

Conviction of an infamous offense

Husband's lack of knowledge that 1)wife was pregnant by another at the time of marriage or 2)wife was a prostitute

Either spouse was a notoriously licentious person
What is the effect of a marriage in jest?: - may be annulled
- one party cannot afterward choose to treat the marriage as valid if the other party still claims jest, that party has a right to have the court decide the intent
What is the only way to defend an action against a void marriage?: Deny the existence of the defect which made the marriage void (because void marriages have no legal effect)
What if the defense against a void marriage is successful?: The marriage becomes voidable
What defense can be raised against a claim of voidable marriage?: Other than the denial of defect, equitable defenses such as laches, estoppel and unclean hands can be applied
How are children of annulled marriages recognized?: As marital children, support rights, etc...
Is spousal support available for parties of annulled marriages?: Yes, the same as in a divorce case
How is property divided in annullment cases?: Attempt to put the parties in the pre-martial state, but will also apply the equitable division rules of the W.Va.C
Where can annullment cases be heard?: Jurisdiction of the domicile of either party
Are WV annullments recognized in other states?: Yes, under the Full Faith and Credit Clause
What is another name for seperation?: Bed & Board Divorce
In a no-fault divorce in WV, can the court use fault to determine support?: Yes, it can be considered to determine was ia a "just and equitable" award
What are the 8 fault grounds for divorce in WV?: 1) Adultry
2) Desertion
3) Extreme Cruelty
4) Voluntary Drug Addiction and Habitual Drunkenness
5) Insanity
6) Conviction of a crime
7) Separation
8) Abuse & Neglect of Child
What elements are necessary for divorce to be granted on adultery?: - corroboration by someone other than a prostitute or criminal participant
- parties may not cohabitate after the knowledge of adultery
- adultery must have been more recent than 3 years

**In absence of these facts, the divorce is barred
How is adultery usually proved?: Circumstantially proving opportunity and inclination, hardly ever directly
- all elements of the cause of action must be corroborated
- when unconditioned, adultery will cause forfeiture of spousal support
What are the elements of desertion in WV?: - voluntary separation without justification
- with the intent to terminate the marriage relationship
- for 6 months
Can a spouse desert another and still live in the same house?: Yes, so long as there was a willful, total and unjustifiable suspension of all marital duty and relationship
What elements can extreme cruelty include?: - reasonable apprehension of bodily harm
- false accusation of adultery or homosexuality
- treatment that tends to destroy the mental, physical well-being, happiness and welfare of the other
- and render co-habitation unsafe or unendurable
Is it neccessary to prove physical violence in order to procure a divorce on grounds of extreme cruelty?: No
What has to be shown under Voluntary Drug Addiction and Habitual Drunkeness?: that drunkenness has become a fixed habit, so frequently indulged in as to show inability to control appetite for the substance when opportunity is afforded to procure it
What elements are required for a divorce on grounds of Insanity?: - party is permanently and incurably insane
- confined in a mental hospital for period of at least 3 consecutive years
(the court may order support and maintainance for the insane party)
What is necessary for a divorce on the grounds of Conviction of a Crime?: - convicted of a felony

- the conviction must be final
What is necessary for a divorce after separation in WV?: - parties have lived seperate and apart with no interruption for one year.
- it is irrelevant whether both parties consented to the separation
- the court may consider substantial inequitable conduct on the part of the party seeking support as one factor in the allocation
What is necessary for divorce on the grounds of Abuse and Neglect of a child?: - clear and convincing evidence sufficient to justify permanently depriving the offending party of his parental rights to the custody of the child
What are the 2 defenses to Fault Divorce Grounds available in WV?: 1) Connivance / condonation

2) Recrimination
Which defense is not available in WV?: Collusion - to agree to appear as if one party had committed a fault for divorce
What is connivance and condonation?: To agree to, forgive or provide means for the other party to commit adultery or sexual misconduct
- this is a bar to divorce
What is recrimination?: the party seeking the divorce is guilty of misconduct for which a divorce may be granted
- this will be a bar to divorce except when based on grounds of separation
Which courts have jurisdiction over marriage, divorce and annullments?: Circuit Court and Domestic Relations Courts
Is WV residency required for parties to bring an action to affirm or annul a marriage?: Either one party must be a bona fide WV resident or the marriage must have been performed in WV and the parties have not established a matrimonial residence elsewhere.
(process still must be served on the other party)
What are residency requirements for divorces on grounds of adultery?: - one party must be a bona fide resident of WV at commencement of the action
- if not, the plaintiff must have been an actual bona fide resident of WV for one year prior to commencement
- othewise, the action is not maintainable
What are the residency requirements for divorces on grounds other than adultery?: - one party must be a bona fide resident of WV at commencement of the action
- or one party has since become a bona fide resident and has contnued to be so for at least one year prior to commencement of the action
- unless the marriage was performed in WV, one party must be a bona fide resident for no minimum time
Is divorce seen as In Rem or In Personam?: in rem
What types of service are appropriate for divorce?: - Personal
- Publication
What is an ex parte divorce?: Only the plaintiff is before the court
What can be decided in an ex parte divorce?: - the divorce itself
- only when the state has sufficient minimum contacts with the defendant and property, such as property located within the state, can the court adjudicate as to that property
- no other spousal support or property division
What is the requirement of recognizing divorces granted in other states under the Full Faith and Creidt Clause?: As long as one of the parties was domiciled in the state that granted the decree
What is comity?: recognition of judgments from foreign countries, courts are more likely to recognize if one party was a citizen of that country
In what county must the action for divorce be brought?: The county where the defendant lives, or if the defendant is not a resident, in the county where the parties last cohabitated
- if the defendant is not a resident of WV, then in the county where the Plaintiff lives or where the parties last cohabitated
- if neither party is a resident, then an annullment action must be brought where the marriage was performed
What is the court required to determine when the parties seek distribution of marital assets?: - net value of all marital property
- designate which propertu constitutes marital property and determine each party's interest in that property
- designate property that constitutes separate property
-
Which types of property are separate property? (7 kinds): 1) Acquired before marriage
2) Acquired during the marriage in exchange for marital property
3) Acquired during the marriage, but excluded from treatment as marital property by agreement of the parties either before or during the marriage
4) Acquired during marriage by gift, devise, bequest, descent or distribution
5) Acquired between separation and divorce
6) Increase in value of separate property due to inflation or a change in market conditions (outside control of the parties)
7) Personal injury awards
If a spouse sells or cashes in marital property between the time of separation and divorce, are the proceeds marital or separate property?: Marital - each spouse is entitled to a share of the proceeds
What standard is used for distribution of martial property/earnings?: Equitable Distribution
What does equitable contribution take into account?: Contribution of time and effort into the married life of the couple (at home and in the workplace) valued equally regardless of the earnings outside the home
May the conduct of a party be taken into account to either enhance or diminish the value of the marriage?: Yes, either for better or for worse
How are pensions considered in WV?: as marital property subject to equitable distribution; except for military and government pensions
How are professional licenses or degrees considered in WV?: NOT marital property subject to equitable distribution
How are stock options considered in WV?: Marital property, even if they will not be exercised until after the divorce is final
How are life insurance policies considered in WV?: marital property; the insured spouse is precluded from removing the beneficiary spouse once divorce proceedings commence
How can a separation agreemnt be ineffective for division of property?: - if it was obtained by fraud, duress or other unconscionable conduct of a party
- the parties have not expressed themselves in terms enforcable by the courts in future proceedings
- the agreement is so ineuqitable as to defeat the statute and the agreement was inequitable at the time it was executed
Can the court force a party to transfer or sell his interest in property to the other party?: Yes, to achieve an equitable distribution
What is the time frame for disclosure of assets and liabilities for all divorce and child support actions?: 40 days after service of the summons
What is the Mixed Property / Source of Funds Rule?: property is evaluated as to the where the funds for the property originated and any increase in value from the efforts of a spouse
Can spousal support be punitive in nature?: No
Where are the factors for determining spousal support found in the W.Va.Code?: § 48-6-301
What are the 6 types of Spousal Support available in WV?: 1) Permanent Periodic Spousal Support

2) Lum Sum Spousal Support

3) Rehabilitative Spousal Support

4) Reimbursement Spousal Support

5) Spousal Support in Gross

6)Separate Maintainance
What is the most common form of spousal support?: Permanent Periodic Spousal Support - it can be modified by petitioning the court and showing a substantial change in circumstances
What are the terms of Rehabilitative Spousal Support?: - payable for a specific, determinable amount of time

- designated to stop when the payee is, after reasonable efforts, able to self-support

- may be modified with showing of substantial change in circumstances

- the right of the payee to collect ends with the payee's death (estate cannot collect)
What are the terms of Reimbursement Spousal Support?: - fixed sum

- to a spouse who supported the other during the time of obtaining a professional license or degree

- based on the amount of contribution, not the value of the degree/license

- may be awarded even when the spouse is not otherwise entitled to support

- minority of jurisdictions
What is Spousal Support in Gross?: Either a lump sum or payments to equal a specific amount over a definite time
- only classify this as SSiG when the amount and the date when payments will cease can be determined

- this type of spousal support survives the death of both parties, remarriage and even de facto marriage of one party
What is separate maintainance?: Basically, an order to spousal support without the divorce
What are the grounds & terms for Separate Maintainance?: - a spouse, without good cause, fails to adequately provide support, abandons or deserts the other spouse

- the court may grant all types of relief, any or all of temporary and final relief, other than the divorce itself

- inequitable conduct of the petitioning spouse may bar relief
How do the courts generally treat the payor's death in spousal support issues?: It is favored to allow the payments to continue unless it would put a burden on other obligations of the estate or would be inequitable to continue to pay
A separation agreement will state whether the payments are to continue after the death of a party. What if there is no agreement?: - Rehabilitative will continue beyond the payor's death (absent any other inequitites) and cease with the payee's death

- Spousal Support in Gross will continue beyond either party's death

- All other forms will generally cease with the death of either party and there is no agreement
What is the effect of remarriage if there was no separation agreement?: - Rehabilitative will not cease within the first 4 years of the rehab period

- Spousal support in gross will not cease

- All other forms will cease upon remarriage of the payee
What should be considered in a action to terminate support due to the De Facto Marriage of the payee?: - the payor has the burden of proof by a preponderance of the evidence
- if the payor fails to prove, court may order attorney's fees to the payee
- rehabilitative and spousal support in gross are not affected
- this provision shall not be construed to recognize common law marriage as valid
What are the tax implications of spousal support?: Income of the payee and deductible by the payor unless stated in the agreement/divorce
What are 7 additional types of relief that the court can order?: 1) Custody of minor children

2) Child support

3) Continuation of existing health insurance policies

4) Exclusive use and occupancy of the marital home (including all or a portion of the goods and furniture)

5)Exclusive use and possession of vehicles

6) Just and equitable distribution of specific property

7) Either party to not interfere with the separate estate or personal liberty of the other
Where is the guideline table to determine child support located in the W.Va.Code?: §48-13-301

- based on gross monthly income of both parents and number of children needing support
Can the custodial parent deny visitation to the paying parent who is in arrears?: No, these are independent in WV
What is required for courts to afford Full Faith and Credit to the child support order of another jurisdiction?: - the court ordering had jurisdiction over the matter and the parties

- the parties had reasonable notice and opportunity to be heard
What are the tax consequences of child support?: Not included nor deducted from either parents' income
What modifications are allowable in child support matter?: - either party may petition the court when there has been a substantial change in circumstances

- a party may also petition to include spousal support where there was no order before
What is a "substantial change in circumstances" in child support matters?: more than 15% difference
What are 2 grounds for modification of spousal support?: - substantail change in circumstances

- material change in circumstances
What if the reduction in the spousal support's income is self-induced?: Generally, will not cause a modification
Does a temporary reconciliation stop spousal support?: No, only for the time that the parties had moved back in together
What are 4 factors considered (other than the parents' income) for a modification in child support?: - employment

- growth of the children

- inflation

- retirement

- disabling illness
Is a support order retroactive to include past due payments?: No, the modification does not affect payments in the past
Can a payor spouse be jailed for financial inability to pay?: No, the judge will determine if the spouse was able to pay. If the payment was able to be made, and was not, the spouse may be jailed for contempt of court
What are the 2 types of contempt sanctions for non-payment of child/spousal support?: - Civil contempt: the jailed spouse may pay the amount owed and be released

- Criminal contempt: the spouse may be incarcerated for a specific period of time whether he pays the arrears or not
What are non-contempt sanctions that may be imposed upon a non-paying spouse?: - Judgment

- Seizure of real estate

- Attachment of wages (notice must be given)

- Interception of tax funds

- Licenses not granted or renewed

- Order to pay attorney's fees
What sanctions do the Child Support Recovery Act impose?: It is a Federal criminal offense to willfully withhold support from a child living out of state, if the amount is over $5,000 or has been overdue for more than 1 year.
Venue is any jurisdiction where the crime began, was committed or completed
What is the Uniform Interstate Family Support Act?: - adopted in all 50 states & DC

- to simplfy collection of child and sometimes spousal support where the order was issued in one state and the payee or payor resides in another state
Which state controls under the Uniform Interstate Family Support Act (UIFSA)?: Generally, the state where the order was filed under UIFSA;
However, the child's home state will trump the "first to file" rule
Which state controls the statute of limitations under UIFSA?: The state with the longer statute of limitations
What are two ways to enforce an order under UIFSA?: - direct enforcement via income withholding: mailed straight to the obligor's employer or the proper support enforcement agency

- registration of support order or income withholding order: order is sent to the state where the obligor resides and it is treated as if it had been issued in that state
How can an order be modified under UIFSA?: the obligor's state can only enforce the original order, unless:
- the parties no longer reside in the issuing state

- the parties consent on record to the non-issuing court's assertion of jurisdiction to modify the order
What is the only area where mediation is used in family law currently in WV?: the development of a parenting plan
What are the requirements to merge a separation agreement into a divorce decree?: - the divorce states that it is merging the agreement into it
- or the specifics of the agreement are repeated in the divorce decree
- court orders compliance with the terms
Then the agreement becomes an unforcable judgment
What if the terms of the agreement do not merge into the divorce decree?: It is them a enforcable as a contract and not a judgment
What are the requirements for a valid oral separation agreement?: - it must be agreed to on record and the court or family law master must ascertain that the parties understand its terms and have voluntarily agreed to them without coercion and that the terms are fair and equitable

(the courts prefer that separation agreements be in writing)
What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?: To avoid jurisdictional disputes and strengthen enforcement procedures
What is the primary test of the UCCJEA?: What is the child's home state: where the child lived with a parent/guardian for at least 6 consecutive months prior to the commencemnt of the proceeding
- a court has jurisdiction to initially enter or modify a child custody/visitation order if the state is the child's home state <or> was the child's home state within the past 6 months and the child is absent from the state
Example card for the UCCJEA: Parents live in NC with child for 2 years. Parents separate and mother moes with child to WV. Within 6 months from the time that mother & child move, father may file a custod proceeding in NC because it was the child's home state within 6 months of father's filing, child is absent from the state and father continues to live in NC.
Note: the child's absence need not be wrongful removal
How long does exclusive continuing jurisdiction last?: until:
- neither the child and one parent have significant connection with the state and substantial evidence relating to the matter is no longer available in the state
- <or> neither hte child nor the child's parents continue to reside in the state
Under what 2 circumstances may a court refuse jurisdiction in child custody matters?: - Inconvenient forum: if the court decides that another state is more appropriate due to domestic violence, distance, ect

- Party's Unjustifiable Conduct: such as if the party seeking court's jurisdiction has wrongfully taking the child from another state
What factors would give a court temporary emergency jurisdiction?: - the child has been abandoned
- necessary to protect the child (or parent or sibling) from abuse or mistreatment
In addition to the state using its own methods of enforcement, what other methods of enforcement does the UCCJEA provide?: - Registration of the order

- Expedited enforcement in Habeas-Type proceeding: order issues an order to appear on the next judicial day possible

- Warrant to take physical custody of the child: court will issue the warrant if it finds that the child is imminently likely to suffer serious physical harm or be removed from the state
- Prosecutor, law officer or other publc official can take lawful actions to locate, return the child, or enforce a custody or visitation order when there is a court order <or> there is a reasonable belief that the person holding the child has violated a criminal statute

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