July 2014 Second Example Ten-point Answers to Virginia Essay Questions

July 2014 - QUESTION 6 – VIRGINIA BAR EXAMINATION

      Peggy and Dale, high school sweethearts who never went to college, married on February 14, 1990, in Hanover County, Virginia, where they have lived during their entire marriage. Dale, a third generation tomato farmer and a professional mixed martial arts fighter, makes a very nice living, and although they never had children, he insisted that Peggy, who never had a job, not work outside the home. Peggy and Dale had a tough marriage from the start. Dale occasionally drank heavily and often had multiple girlfriends on the side. Although Dale never physically abused Peggy, he criticized her constantly and often to the point where she became emotionally distraught.

      Frequently, Dale left Peggy alone for days at a time while out on the MMA circuit or an excursion with one of his girlfriends. Peggy knew of Dale's involvement with other women, and she left Dale several times over the years, but she always returned. In spite of Dale's behavior, the two continued to live together and have sexual relations. However, Peggy began to experience anxiety attacks and eventually slipped into a deep depression. Her mother advised her to seek professional help and Peggy began to see a psychiatrist.

      After several months, Dale began to feel remorse because of his poor treatment of his wife. He vowed to his best friend that he would immediately stop his wandering ways and excessive drinking, which he did. However, he never told Peggy of his vow to stop the womanizing behavior. Unfortunately, Dale never broke his habit of brutally criticizing his wife. On July 30, 2013, Dale and Peggy got into a heated argument, and Dale verbally abused her for over an hour. Peggy became sick and immediately packed her bags and left their home. Peggy moved in with a single friend who after a couple of weeks introduced her to a neighbor with whom Peggy slept on the first date. Peggy never went back to Dale, and they agreed in writing to remain separated. Her health has improved and, in June 2014, she retained a lawyer to commence divorce proceedings. She asks the lawyer the following questions:

      (a) Are each of the following grounds for a divorce available to her: constructive desertion; cruelty; adultery; and no-fault?

      (b) Will she be entitled to spousal support?

      (c) How will the court determine her share of the marital property she and Dale accumulated during their marriage?

      What advice should the lawyer give her on each question? Explain fully.


July 2014 - QUESTION 6 – EXAMPLE ANSWER #1

a) Applicability of Certain Divorce Grounds

      When multiple grounds for a divorce may exist, a court reviewing a claim for divorce may issue the divorce on any relevant grounds it finds supported by the evidence. Therefore, as Peggy's attorney, it is important to counsel her carefully on which grounds for divorce she can and should claim.

      (i) Constructive Desertion
      Of the fault-based grounds for seeking a divorce that interest Peggy, constructive desertion is the most likely to succeed, because of the high bars of proof on cruelty and the potential defenses available to adultery.
      Peggy physically left her husband, but she may claim that her departure was a mere effect of the constructive desertion he visited upon her. A constructive desertion claim would require proof that her husband's behavior had become so intolerable that he may as well have left her, and effectively forced her from the marital home. In this case, Peggy would make her constructive desertion claim by proving many of the same factors involved in a cruelty or adultery-based divorce, but would request the divorce on the overall cummulative effect of all of her husband's faults.
      Peggy's husband regularly berated her for the entire course of their 20 year marriage. He was physically controlling, insisting that his wife remain a homemaker, despite the fact that he was frequently away from home, leaving her with little companionship or diversion. He was a rampant womanizer for the majority of their marriage, and never apologized for that behavior or told his wife when he finally stopped cheating on her.
      Some of the strongest evidence Peggy can offer for how the callous, undignified treatment her husband showed her for the entire course of their marriage became so intolerable that she had to leave is the medical evidence. She had to seek professional psychiatric help to address the anxiety attacks she began having due to her husband's treatment of her. Her mother grew so worried enough about the impact Dale's behavior was having on Peggy that she decided to intervene. When Dale berated her for over an hour on July 30, 2013, the abuse became so troubling that Peggy physically became ill.

      (ii) Cruelty
      Emotional cruelty is harder to prove than constructive desertion, but Peggy does still have a tolerable case of it. A single act of incredibly severe physical violence may be enough to support a divorce on the grounds of cruelty, but with emotional abuse, the absence of hospitalizations, broken bones, and other visible signs of the harm, the abuse must be much more constant to rise to the level of supporting a fault-based divorce.
      As indicated above, Dale, a heavy drinker, constantly and "brutally" subjected his wife to verbal abuse. She left the family home several times because of his treatment of her. Despite the clear sign that she gave her husband that she was displeased with his treatment of her each time that she left, he never outwardly changed his acts to her, even if he did inwardly vow not to cheat on her again, and apparently follow through on that vow in the final period of their marriage.
      While Dale's vow to stop cheating on Peggy was a worthwhile gesture, he did not tell her that he had resovled to remain faithful, nor did he limit the abuse she suffered due to his yelling and badgering her. Only Peggy went to counseling, not Peggy and Dale. Though the client has not indicated what precipitated the couple's fights, it is apparent that they bothered her much more than her husband. Even if he was not the sole instigator, he bore a responsibility for ending the fights that so deeply affected his wife.
      Proving cruelty, like proving any fault-based grounds for divorce, will be a fact-intensive endeavor, and will likely involve collecting and exposing very personal struggles in the public forum of a court. Peggy could pursue this alternative, but it may be more trouble than it is worth since she would also qualify for a no-fault divorce.

      (iii) Adultery
      Despite Dale's frequent extra-marital affairs, Peggy does not have a valid claim for adultery because of two relevant defenses. First, she was aware of his infidelity and reconciled with him after each and every known instance of extra-marital sexual relations. Until she finally left him in 2013, Peggy maintained an off-again, on-again sexual relationship with her husband, despite leaving him occasionally.
      Second, if Peggy were to raise her husband's adultery as a ground for their divorce, he could countersue for divorce on the grounds of her recent adultery. It is true that her adultery appears to have been limited to an isolated instance after she left her husband, but because it is unclear whether they had formally separated at the point when she slept with her friend's neighbor, she could be vulnerable to the same fault grounds as her husband, though it would be more difficult to prove her infidelity than his, because of the isolated and less public nature of hers.
      Ultimately, it is up to Peggy whether to introduce evidence of her husband's infidelity and open herself up to a similar accusation, but she is unlikely to succeed in receiving a fault-based divorce for adultery because of her routine reconiciliations with her husband.

      (iv) No fault
      A court can grant a no-fault divorce to a childless couple that has been separated for at least six months and has a written spearation agreement in place, which divides substantially all of their assets. If the couple cannot reach a settlement agreement, they must wait one year to receive a no-fault divorce, just as a couple with minor children would be required to do regardless of the presence or absence of a settlement agreement.
      No fault divorces make it more difficult to obtain spousal support than fault-based divorces, so that should be a factor in Peggy's decision of how to proceed. However, pursuing a no-fault divorce can be faster and less painful for a scarred individual, and since she and her husband have already been separated for nearly a year and have a written separation agreement in place, they would be able to obtain a no-fault divorce. Peggy will still be able to offer evidence of her husband's verbal abuse, constant affairs, and banning her from working if she requests spousal support as a part of a no-fault divorce.

b) Peggy is Likely to Receive Some Spousal Support, Due to Her Husband's Role in Her Remaining Out of the Job Force and the Far Greater Fault He Demonstrated During their Marriage Than She

      Spousal support is available at the discretion of the trial court. Factors to include when considering support claims are fault on the part of the party seeking support, the relative needs and incomes of the divorcing spouses, the education, training, and opportunities available to each, the lifestyle they maintained, and any sacrifices one made for the marriage that minimized their ability to work.
      The strongest bar against spousal support for Peggy will be the possibility that her husband will offer evidence of her adultery to get a fault-based divorce against her. However, comparing the isolated instance of adultery on her part after the couple had separated to the long- standing, repeated infidelities on his part, the court is unlikely to give much credence to that claim, particularly in light of the other factors weighing in Peggy's favor.
      In fact, even if her husband is the one who receives a fault-based divorce for adultery, Peggy could still obtain spousal support, because of the exceptional circumstances that would make in inequitable to deny support in her case. Courts typically will not award spousal support to the spouse at fault in a fault-based divorce, but they may do so when it would be grossly inequitable not to.
      Here, it seems that the only reason why Peggy did not work was her husband's insistence on her remaining at home. She is a high-school educated woman who has never been a member of the workforce, or, at least, has not held a job since high school. She lacks a means to reasonably support herself immediately upon separation from her husband, and will be completely unable to maintain the comfortable lifestyle that her husband's salary has provided to her without some transitional support.
      Peggy is young enough that she may still obtain training and education that will qualify her for a job that could provide her with a reasonable income later after the divorce. As far as her attorney is aware, she does not suffer from any physical disadvantages that would hold her back from obtaining gainful employment, nor does it seem that her depression or anxiety attacks will hold her back once the stresser of her difficult marriage is behind her.
      Given the dependency that Dale fostered in his wife, the greater proportion of fault on his side of the marriage's breakdown, and the inequity of leaving her with no way to support herself, after they enjoyed a comfortable lifestyle together, the court is apt to order a reasonable amount of spousal support to help her until she can get on her feet.

c) Any Property that Peggy and Dale Acquired Through Wages or Sweat Equity During their Marriage Will Count as Marital Property

      Any wages or non-wage substitutes (like pensions) that an individual receives during a marriage is marital property. Any assets that they held separately before the marriage remain separate property. Appreciation to separate, pre-marital property due purely to the passage of time and market fluctuations are added to that individual's separate property. Any appreciation in separate assets that can be tied to their efforts or those of their spouse are transmuted into separate assets. Increases in value of separate property due in part to market forces and in part to the efforts of either spouse may be divided according to the amount of appreciation each factor contributed to the property, provided that it can be traced out, with the portion attributable to the parties' efforts counting as marital property.
      In all likelihood, many of the assets that the high school sweethearts have are joint marital assets, because of how young they married and the lack of work experience and earning potential that they most likely had before the marriage. The salary that Dale earned throughout the marriage, as both a tomato farmer and as an MMA fighter, is marital income. If Peggy did engage in any for-profit employment, however informal, the money or in-kind property received for that employment would also be marital property. (Though the facts the client has provided indicated that she did not work outside the home, that could mean, for instance, that she took some sewing in to earn "pin money" during the marriage, which would be marital income, however slight.) Any property or possessions that Dale or Peggy bought with either party's marital income is marital property, and any appreciation of those marital assets is marital too.
      The area that Peggy needs to be most concerned with not having getting included in the pool of martial assets is the farm that Dale works and any gifts that he may have received either before or during the marriage. If he works a family farm, whether he owns it or not, if he received it from his family as a separate gift, as a premarital asset, or is just given the right to work there because of his family ties, it is not marital, although any payment-in kind or salary he received from the landowner for his work would be. Likewise, if either member of the couple inherited something separately or received a gift to themselves individually, not for the couple, the only marital assets that can come from those items are any increased interest or value in them that are attributable to their own labor, but not those tied to market forces.
      Since the facts our client has provided do not include details about the property she and her husband have, more disclosure of finances is necessary to provide a detailed breakdown of what counts towards their marital property pool.


July 2014 - QUESTION 6 – EXAMPLE ANSWER #2

A) Adultery is not available as a grounds for divorce, but constructive desertion, cruelty, and no-fault may be.

      (i) Constructive desertion may be available as a grounds for divorce.
      Constructive desertion is a grounds for divorce when one spouse is so cruel as to force the other spouse to leave the marital home and abandon the marriage. Constructive desertion requires that the at-fault spouse be responsible for the conditions leading to the constructive desertion, while the other spouse not be at fault.
      Here, Dale did not physically abuse Peggy but did brutally criticize her to the point where she experienced anxiety attacks and deep depression. Eventually one of Dale's verbal attacks was so severe, over the course of over an hour, that it caused Peggy to become sick and leave the home. While Peggy is the one who left, Dale's outrageous and cruel behavior will be considered constructive desertion because he created the conditions that led to Peggy's departure. Therefore, Peggy can assert constructive desertion as grounds for divorce.

      (ii) Cruelty may be available as a grounds for divorce.
      Cruelty is available as a grounds for divorce where the at-fault spouse has been either physically or emotionally abusive to the other spouse.
      Here, Dale's repeated verbal abuse amounts to cruelty due to its severity, repeated occurrences, and the effect it had on Peggy. Dale's abuse caused Peggy to be emotionally distraught, experience anxiety attacks and deep depression, and physical sickness. Therefore, Dale's abuse gives rise to cruelty as a grounds for divorce by Peggy.

      (iii) Adultery is not available as a grounds for divorce.
      When one spouse commits adultery, the other spouse may obtain a fault divorce on those grounds. However, there are several exceptions where adultery may not serve as grounds for a divorce. These exceptions are recrimination, connivance, forgiveness, fraud on the court, and a mutual meeting of the minds to restart the marriage. Recrimination is where the party seeking a fault divorce on the grounds of adultery is also guilty of an act that would be grounds for a fault divorce. For example, a spouse seeking a divorce on grounds of adultery who has also committed adultery will be barred from obtaining a fault divorce.
      Here, both Peggy and Dale have committed adultery. Dale had multiple girlfriends, while Peggy slept with a neighbor. While Dale committed adultery, Peggy did too. Therefore, the fault ground of adultery is not available to Peggy.

      (iv) No-fault divorce is available to Peggy.
      No-fault divorce is available where the parties have not cohabited for a continuous and uninterrupted period of one year. However, when there are no minor children of either spouse and the spouses have signed a separation agreement, no-fault divorce is available after a continuous and uninterrupted period without cohabiting of six months.
      Here, neither Peggy or Dale have any minor children and they have signed a separation agreement. Peggy left the home on July 30, 2013 and the couple has not cohabited since. As of June 2014, more than six months have elapsed with a continuous and uninterrupted cessation of cohabiting. Therefore, a no-fault divorce is available.

B) Peggy likely can receive spousal support, even though she committed adultery.

      Spouses have a duty to support each other. Upon divorce, spousal support is available depending on a number of factors. These factors include the age and health of each spouse, the contributions each made to the marriage whether monetary or otherwise, the lifestyle to which they were accustomed during the marriage, the relative earning potential of the spouses, agreements made during marriage, the ability of a spouse to improve earning potential through education or training, and the relative degree of fault for the dissolution of the marriage. Spouses who have committed adultery are barred from receiving spousal support unless providing no spousal support would be manifestly unjust or the other spouse was substantially more at fault for the dissolution of the marriage.
      Here, Peggy has committed adultery, which is in general a bar to receiving spousal support. However, Peggy can likely succesfully argue that Dale was substantially more at fault, because he committed adultery many more times and was also emotionally abusive. Therefore, Peggy can likely overcome the general bar on receiving spousal support. Her receipt of support will then depend on the application of the various factors outlined above. Peggy is a good candidate for spousal support because she has never worked, demonstrating a low earning potential, while Dale makes a very nice living given his farming and MMA jobs. Additionally, Dale insisted that Peggy not work during the marriage, showing an agreement during the marriage which will increase the likelihood of spousal support. Also, Dale was significantly at fault for the dissolution of the marriage because of his adultery and cruelty. The couple appears to be the same age, since they are high school sweathearts, but Peggy is of more fragile health because of the emotional strain she has been under. Peggy also may be too old to start a new career, either by taking a job or going back to school.

C) Division of marital property depends on application of a number of factors and is not simply divided 50-50 between the spouses.

      Marital property is that property acquired during the marriage, other than property received by one spouse by gift, intestate succession, or devise. Marital property can also include increases in value to non-marital property if the efforts of either spouse during the marriage contributed to the increase. Marital property is not divided into two equal shares upon divorce. Instead, a court will divide marital property by application of a number of factors, including the factors considered in awarding spousal support. The factors considered by a court in making a division of marital property include the age and health of the spouses, the contributions each spouse made to the marriage both monetarily and otherwise, and the relative fault for the dissolution of the marriage.
      Here, Dale was likely more at fault for the dissolution of the marriage because he was emotionally abusive and a repeat philanderer. This factor therefore weighs in Peggy's favor. While both spouses appear to be the same age, as they were high school sweethearts, Peggy's health is more fragile because of the emotional trauma she has experienced. Therefore, the age and health factor may weigh slightly in Peggy's favor. Dale clearly contributed more monetarily to the marriage because Peggy did not work outside the home, but Peggy likely contributed through services, such as housecleaning or cooking. This factor may favor Dale, but Peggy can point to some contributions as well. Courts will consider all of the marital property factors and not simply divide the marital property in half between Peggy and Dale.