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VA Conflict of Laws
February 2012 Exam
| Question | Answer | Answer continued |
|---|---|---|
| What are the three ways domicile might appear on the exam? | 1. D- of the decedent is used to choose the law to be applied to determine intestate succession of personal property. 2. D- at death determines which state gets estate taxes. 3. D- of an individual gives subject-matter jurisdiction for a divorce. | |
| What is needed to make a domicile of choice? What is the standard? | Legal capacity. The standard: the ability to fend for yourself. | |
| What is the two-part test to establish a domicile of choice? | 1. Physical presence in that state. 2. The intent to remain for he foreseeable future, that is, indefinitely. | |
| Factual issues re: Domicile of choice - True/False? Physical presence can be for a very short time and still satisfy the requirement | True | |
| Factual issues re: Domicile of choice - True/False? Previously spoken words count for more than what one does when intent is concerned | False. Actions speak louder than words; what you do counts for more than what you say when intent is concerned | |
| Factual issues re: Domicile of choice - T/F? A person can have multiple domiciles if that person has multiple residences. | False. A person can have only one domicile; if a person has multiple residences the primary one is considered that person's domicile. | |
| Factual issues re: Domicile of choice - T/F? Once obtained, a domicile of choice is kept until another one is acquired. | True | |
| Factual issues re: Domicile of choice - T/F? The motive for going to another state to acquire a domicile can affect the validity of a change of domicile | False. The motive for going to another state to acquire a domicile is irrelevant. | |
| Define domicile by operation of law. | If a person has no legal capacity to acquire a domicile of choice that person will be assigned one by operation of law | |
| What are the 3 Rules for Domicile by operation of law in the key situation: domicile of a child or mental incompetent? | 1. If a person doesn't have legal capacity to get a domicile of choice, the child or mental incompetent will have the domicile of that person's parents 2. If parents are divorced, domicile is that of the parent who has physical custody | 3. If a person had a validly acquired domicile before becoming mentally incompetent, that person will retain the domicile of choice during the period of incompetency |
| Recognition and enforcement of judgments: Define the "rendering" state | The state handing down the judgment | |
| Recognition and enforcement of judgments: Define the "recognizing" state. What is another name for this state? | The state called upon to recognize and enforce the judgment is the recognizing state, also called the forum state. | |
| The exam situation: facts show a judgment rendered in another state or country outside the forum state. The question: should that judgment be recognized and enforced by the forum court? What are the two situations to consider? | 1. Judgments rendered by a sister state court. 2. Judgments rendered by a foreign country court | |
| Sister state judgments: Is the judgment entitled to full faith and credit? Two requirements: | 1. Judgment (sought to be enforced) must meet the three full faith and credit requirements, and 2. No valid defenses apply | |
| What are the three Full Faith and Credit Requirements. | 1. Valid jurisdiction in the rendering court over both the parties and the subject matter of the litigation. 2. The judgment must be a final judgment. 3. The judgment must have been rendered on the merits. | |
| Explain the first full faith and credit requirement: "valid jurisdiction in the rendering court over both the parties and the subject matter of the litigation." What is the "one attack" rule? | "One attack" rule: the validity of jurisdiction can be attacked only once, either in the rendering court or in the recognizing court. (Answer continued on next page)... | If jurisdiction was fully and fairly litigated in the rendering court that determination is entitled to full faith and credit by the recognizing court even if it was wrong. |
| 1. Explain the 2nd full faith and credit requirement: "the judgment must be a final judgment". 2. What are the 2 modifiable judgments to remember? | 1. If a judgment is modifiable it is not a final judgment and gets no full faith and credit, BUT it will usually still be enforced under principles of comity. 2. (1) Future alimony and (2) Future child support. | |
| Re: the 2nd full faith and credit requirement: "the judgment must be a final judgment": Are judgments for amounts already accrued and in arrears considered modifiable or final judgments? What about judgments on appeal? | Judgments for amounts already accrued and in arrears are considered final judgments. Judgments on appeal are not final judgments unless the rendering state would allow enforcement of the judgment pending appeal | |
| HYPO: Elizabeht obtained a judgment agaisnt Jane in New Hampshire which is now on appeal in that state. Is the New Hampshire judgment a final judgment that could be enforced in another state? | No, not unless Ne Hampshire would allow enforcement of such judgments if they were sought to be enforced there | |
| Re: the 3rd full faith and credit requirement: "the judgment must have been rendered on the merits," explain two situations that ARE on the merits for full faith and credit purposes: | 1. Default judgments. 2. Consent judgments. With a default judgment all of plaintiff's assertions are taken as true, and the judgment is thus on the merits to all of plaintiff's unanswered allegations. | |
| What is the controlling law on all three full faith and credit requirements? | Rendering state law. HYPO: Roberta sued John on a debt in Arizona and now seeks to enforce her judgment in Connecticut. John concedes that jurisdiction was proper in Arizona, but would not have been proper in Connecticut. Who wins? Roberta wins, because | it is rendering state law that controls, not recognizing state law. |
| DEFENSES. Most attempted defenses do not work (the so-called "non-defenses") but you must talk about them if they appear in the facts. Only 2 defenses are good today: | 1. The judgment is penal; courts will not enforce this kind of judgment. 2. Extrinsic fraud (not intrinsic fraud) | |
| What are examples of penal judgment? Who must the winner be? | Definition: a judgment rendered for an offense against the public. Examples of penal judgment: criminal sanction or civil fine. Winner must be the government, not a private person or entity | |
| What is intrinsic fraud? What is extrinsic fraud? What is the only example of extrinsic fraud to worry about? | Intrinsic fraud is fraud that could have been dealt with during the litigation and it is NOT a good defense to full faith and credit. Extrinsic fraud is fraud that could not have been coped with in the earlier trial. | Bribing the judge is the only example of extrinsic fraud to worry about. |
| The "non-defenses" - won't work but you must talk about them if they appear in the facts. What are the three? What is the SCOTUS Rule? | 1. The judgment is based on a cause of action that violates forum's public policy. 2. Mistakes by judge in the earlier trial. The remedy for such mistakes is to appeal the incorrect judgment; it is too late to raise the issue at the recognition of | judgments stage. 3. Inconsistent judgments. A later judgment can be enforced even though it is inconsistent with a valid earlier one. SCOTUS RULE: enforce the last judgment in time. |
| Foreign Country Judgments. These can be recognized and enforced under principles of fairness, PROVIDED _________ is satisfied. Describe. | A "two-part comity test". 1. Jurisdiction must have been proper (fundamental fairness/minimum contacts), and 2. Fair procedures must have been used in the foreing country proceeding. (Due process) | |
| What is used to determine whether the foreign country judgment meets a two-part comity test? Explain what this means. | To determine whether the foreign country judgment meets this test use recognizing (differs from sister state judgment) state's law, and this means that state's ideas of due process: | were there enough contacts with the litigation or the parties to make jurisdiction fair. |
| Special Situation: Family Law Judgments. Recognition and enforcement of family law judgments involves consideration of what two types of jurisdiction? | Both subject-matter jurisdiction and personal jurisdiction. | |
| Special Situation: Family Law Judgments. Name three types of judgments, each with its own different jurisdictional requirements: | 1. the termination of the marital status, that is, the divorce. 2. Property awards, such as alimony and child support. 3. Child custody awards. Judgments may be of all three types (eg, divorce with alimony, child support and child custody) so you may.. | have to consider jurisdiction for each. |
| The Divorce: A valid divorce requires proper ______________ and this requires _______________? | A valid divorce requires proper SUBJECT-MATTER jurisdiction and this requires that one of the two spouses be domiciled in the state rendering the divorce. | |
| Three types of divorce: Name and describe each | 1. The ex-parte divorce, where only one of the spouses is validly domiciled where the divorce is granted. 2. The bi-lateral divorce, where one of the spouses is validly domiciled where the divorce is granted, and BOTH spouses are subject to personal... | jurisdiction there. 3. The consent divorce, where both want out of the marriage and go together somewhere to get it (ie, the "quickie" divorce) |
| What must there be for any kind of divorce to be valid in order to give the necessary subject-matter jurisdiction? | For any kind of divorce to be valid there must be a valid domicile of at least one of the parties to give the necessary subject-matter jurisdiction. | |
| Procedural matters on divorces: | 1. Burden of proof - the attacker bears the burden of proof and can introduce any relevant evidence whatever, even if the evidence came into existence after the divorce was granted. 2. Any interested person who is not estopped can attack a divorce... | decree for lack of subject-matter jurisdiction. Strangers to the marriage can't attack it. |
| Watch out for the four basic situations on estoppel; in each of these situations plaintiff is estopped. Describe them. | 1. Where the attacker was subject to personal jurisdiction in the earlier proceeding, thus the spouse in a bi-lateral divorce cannot later attack that divorce. 2. Where the attacker may not have been subject to personal jurisdiction in the earlier... | proceeding, but the attacker played a meaningful role in the granting of the divorce. 3. Persons who are in punity with a party to the divorce. This includes children. 4. A spouse who has remarried in reliance on the earlier divorce. |
| Liz obtained a valid domicile and ex-parte divorce. John then married his secretary, but it was a mistake. He tried to get out of marriage#2 by claiming divorce by wife#1 was invalid due to lack of proper subject-matter jurisdiction. Can he do it? Why? | Can he do it? No, because he is estopped. | |
| Property Awards: A court granting alimony or child support must have what? | A court granted alimony or child support must have personal jurisdiction over the spouse whose property rights are in issue. | |
| Child Custody Decree: Where does valid jurisdiction for determining child custody lie? | Valid jurisdiction for determining child custody lies only in the child's HOME STATE. | |
| Family Law Jurisdiction in a Nutshell: For divorce? For property awards (alimony, child support)? For child custody? | For divorce: subject-matter jurisdiction - valid domicile of at least one party. For property awards (alimony, child support): personal jurisdiction over the spouse whose rights are being determined. For child custody: personal jurisdiction over the... | child - that is, the child's home state. |
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