Term
| What are the limitations as to who may marry in WV? |
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Definition
| The general rule is that both parties must be 18 but persons between 16 and 18 may marry with the consent of a parent or guardian. A person under the age of 16 may marry if a circuit judge and a parent approve. A circuit judge may order the clerk to issue a marriage license to someone under 16 if it is in the best interest of the applicant. |
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Term
| Is there a waiting period for marriage in WV? |
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Definition
| Yes, if the one or both parties is under 18 there is a 2 day waiting period. |
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Term
| Solemnization can be done by whom? |
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Definition
1) family ct judge
2) circuit judge
3) Supreme ct
4) clergy
NOTE: if the license isnt used in 60 days of issuance, the license is void. |
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Term
| Does WV recognize common law marriage? |
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Definition
| Nope. NOTE: a valid common law marriage from elsewhere will be accorded the same rights as a proper marriage. If a purported WV common law marriage disolves, the ct may appply contract principals so as to divide ppty. |
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Term
| Premarital contracts are valid in WV. What if one of the (or both) is a minor? |
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Definition
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Term
| How does the WV court enforce antenuptual contracts? |
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Definition
| in their explict terms if at the time of the end of the marriage the couple is roughly what they forsaw at the time on entering the agreement. the ct considers reliance on the permancy of the marriage, the birth of children are relevant factors for the ct to consider. |
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Term
| in WV there is a right to support during the marriage. Who holds this right? |
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Definition
| Of dubious constitutional nature, the WIFE alone has the right to support from her husband. This is a common law duty. |
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Term
| WV has no fault divorce. What must occur for the ct to grant a divorce under the no fault statue? |
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Definition
| The petitioner must allege "irreconcilable differences have arisen" and the respondant must not deny the allegation. In this case the ct may order, approve, modify or reject ANY agreement pertaining to 1) support 2) custody 3) visitation rights. NOTE: the ct may give consideration to fault or inequitable conduct as one of many factors to be considered in determing the equitable nature of spousal support. |
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Term
| What are the fault grounds for divorce in WV? |
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Definition
1) Adultry
2) Desertion
3) Extreme cruelty (no need to allege or prove acts of physical violence)
4)Insanity (permanent and incurable for at least 3 years)
5) Final Conviction of a felon after the marriage
6) Separation in seperate abodes for 1 year
7) Abuse or neglect of a child (clear and convincing Ev standard) and results in permanently depriving custody and control of the abused or neglected child. |
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Term
| What are the residency requirments to annul or affirm a marriage? |
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Definition
| GR- one of the parties must be a bona fide resident at the commencement of the action. it is NOT required if the marriage was performed in WV and matrimonal domicle has not been established elsewhere. |
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Term
| in an action for divorce on the grounds of adultry, what are the jurisdictional requirements? |
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Definition
| P must be a resident of WV for 1 year if the D cant be served, otherwise merely a resident. |
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Term
| how does WV handle the division of property upon divorce? |
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Definition
1) determine the net value of all marital ppty
2) designate ppty that is marital and define each party's interest therein; and
3) designate separate ppty.
NOTE: the valuation of disability and retirement benefits should be made as of the date of separation. |
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Term
| How does WV define separate ppty? |
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Definition
1) ppty acquired by a person before marriage;
2) ppty acquired during the marriage in exchange for separate ppty;
3) ppty acquired by a person during marriage but excluded as marital ppty by a valid agreement of the parties before or during the marriage
4) ppty acquired during the marriage by gift, bequest, devise, descent, or distribution;
5) ppty acquired during the marriage but after seperation and before the granting of a divorce, annulment or decree of seperate maintenance; and
6) any increase in the value of seperate ppty that is due to inflation or change in the market value resulting from conditions outside the control of the parties. |
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Term
| How does WV treat Personal injury award in ppty settlements? |
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Definition
| Any thing that is for individual injury, suffering, disability, disfigurement or other debilitation is the seperate ppty of the injured spouse. Occationally the cts may need to look at the retirement component which is marital. |
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Term
| What is marital ppty in WV? |
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Definition
| All ppty and earnings acquired by either spouse during marriage, regardless of the form of ownership, that is not seperate ppty. If a spouse sells or cashes in marital ppty between the time of the parties' separation and the final divorce, the other spouse is entitled to his share of the proceeds. |
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Term
| When may the court make an unequal division of marital ppty w/o regard to fault after consideration of what factors? |
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Definition
1) the extent each party contributed to the acquisition and maintenance or increase in value of marital ppty by money contributions;
2) non-montetary contributions
3) expended efforts which limited or decreased that party's that reduced that party's earning or increased the other party's earning ability.
4) conduct by the party that "wasted" the value of marital ppty. |
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Term
| In ana ction for divorce or involving Child support when must the parties disclose their assets and liabilites? |
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Definition
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Term
| What is the effect of a finding of marital fault on spousal support in WV? |
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Definition
| In determing whether to award spousal support or determining the amount, the ct must consider and compare fault or misconduct of either (or both) parties and the effect of this misconduct on the failure of the marriage. There are no longer statutory bars against reciept of spousal support. |
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Term
| What types of spousal support are available in WV? |
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Definition
| Rehabilitative and Lump Sum (Support in gross) and permanet periodic support |
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Term
| What is an order for seperate maintenance? |
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Definition
| A ct may order such relief as available in an action for divorce except the divorce. |
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Term
| What is the effect of inequitable conduct on behalf of the petitioning spouse on an action for seperate maintenance? |
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Definition
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Term
| Does short term spousal support survive the death of the payor? |
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Definition
Yes so long as the estate will likely to pay and if the payment doesnt appear inequitable.
Rehab support will cease with the payee's death.
Spousal support in gross will continue beyond the payor or payee's death. |
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Term
| Th ct may reduce an award for spousal support (not rehab or in gross) is written findings that a de facto marriage exsisted. What are the factors that the ct examines? |
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Definition
1) holding themselves out as a married couple
2)time living together
3) time spent gettin' busy
4) extent of asset pooling
5) mutual support
6) valuable services provided to other (or others company/employer)
7) working together to creat something of value
8) joint contribution to buy real or personal ppty |
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Term
| If the payor spouse brings an action to modify support based on the defacto marriage statute and fails to proove by a preponderance of the ev, what may the ct award the payee? |
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Definition
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Term
| Is the defacto marriage statue akin to common law marriage? |
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Definition
| NO- there is a statute on this point. |
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Term
| Upon ordering a divorce, in addition to the payment of spousal support, the court may order- |
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Definition
1) allocation of custodial responsibility of minor children
2) Child support
3) Continuation of existing health Ins policies
4) Exclusive use of marital home with all or part of the contents
5) exclusive use and possession of one or more cars
6) just and equitable distribution
7) Either party not to interfere with the separate estate or the personal liberty of the other. |
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Term
| How is child support determined? |
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Definition
| By reference to a chart contained in 48-13-301 which looks at the gross monthly income of parents and the number of children needing support. |
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Term
| Child support is normally until the child turns 18. It can extend until the child's 20th birthday under what circumstances? |
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Definition
if the child
1) is unmarried
2) resides with parent
3) is enrolled full time in HS, VOC training and is making substanial progress toward a diploma. |
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Term
| WV has adopted the UCCJEA which avoids jurisdictional disputes. What is the primary test for jurisdiction? |
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Definition
1)the home state where the child has lived for the last six months (or since birth if less than 6 months).
there is also a Significant connections test available if the homestate test fails. If no other state has home state jurisdiction OR the home state court declines jurisdiction and the child has
1) one parent (guardian) having a significant connection to the state and
2)substanial ev is available in the state about the child's care, protectioon, training and personal relationships. The ct also has jurisdiction if all other cts have declined jurisdiction on the ground that WV is the more appropriate forum. Additionally, there is jurisdiction if no other state has jurisdiction. |
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Term
| What does exclusive continuing jurisdiction mean? |
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Definition
The ct that issued the intial order is the go to ct until such time that the ct determines
1) niether the child not the parents continue to reside in the state; OR
2) the child no longer resides in the state and substainal ev about the care, training, relationship is no longer available in the state |
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Term
| Under the UCCJEA when does the ct have temporary emergency jurisdiction? |
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Definition
| In the case of abandonment of the child or abuse to child, sibling or parent. |
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Term
| the UCCJEA has a mechanism that operates like Habeas-type proceeding. The ct will issue an order to the respondant which states that the respondant shall do what or petitioner will be awarded physical custody? |
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Definition
1) that the custody or visitation order was not registered and
a) the issuing ct did not have jurisdiction, b) the order had been stayed or vacated, or c) respondant was entitled to notice of the underlying order and it wasnt given; OR
2) The order was registered and confirmed but the order has been stayed or vacated. |
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Term
| How does the child express a preference as to custody and visitation in WV? |
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Definition
| In Judges chambers. If the child is under 8, often the child will not be heard. A child's prefernce over the age of 12 will be given great weight. Lawyers are present in chambers but no cross/questioning permitted. |
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Term
| Parent education and parenting plans are required in dissolution proceedings. What are the requirements of the parenting plans? |
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Definition
1)living arrangments
2) allocation of decisionmaking responsability
3)dispute resolution mechanism for the plan |
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Term
| What does WV 3d party child visitation statute provide? |
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Definition
| A grandparent may win visitation rights if it is in the best interest of the child with special wieght given to parental preference. A determing factor is the prior relationship between the child and grandparent. |
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Term
| What is WV position on stepparent Visitation? |
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Definition
| custody of a minor child should be with the natural parent absent proof of adandonment or other misconduct/neglect, the CHILD may have a right to continued visitation rights with a stepparent or half sibling. |
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Term
| In child custody actions, what are the restrictions of the use of a Habeas Corpus proceeding? |
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Definition
it is state only (no federal) and
1) limited to custody only, not for visitation issues
2) May consider placement
3) enforced through contempt proceedings |
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Term
| How is the enforcement of a decree handled if the noncustodial parent snatched the child and removes the child to another state? |
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Definition
The custodial parent usually must either
1) file the decree in the foriegn jurisdiction and obtain an order of enforcement; or
2) obtain a writ of habeas corpus from the foriegn ct and serve it on the snatcher. |
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Term
| What is the standard for the modifaction of custody decrees? |
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Definition
1) there has been a substainial change in circumstance and
2) and the modifaction is necessary to serve the best interest of the child. |
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Term
| Except when harm to the child is shown, what circumstances do NOT justify a significant modification of a parenting plan? |
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Definition
1) Involuntary loss of income
2) remarriage or cohabitation; and
3) Choice of reasonable caretaking arrangements for the child by a legal parent, including the child's placement in day care. |
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