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Equitable Procedure in VA
Divorce & Annulment
- No default divorce. Evidentiary submissions must still be made by the P so a proper record of the grounds is presented to the trial judge.
- Rules on Waiver of Notice Rights: no waiver of rights to procedural protections and defaulting defendant is enttiled to notice before depositions are taken.
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Equitable Procedure in VA
Jury Trial of Equitable Claims
- no consittutional right to a jury trial on any claims for equitable relief
- mixed cases: any party who makes timely demand for a jury to hear the legal claims will be entitled to a jury decision on those matters; court still determines equitable claims; legal claims are decided first and judge bound by any fact finding the jury makes
- statutory rights to jury hearings: 1) quiet title actions, and 2) where D files a plea in equity
- Advisory Juries: judge has discretion to seat a jury to hear hotly disputed factual issues but jury' deliberations are not binding on judge (judge can't just accept the verdict, independent decision req'd)
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Equitable Procedure in VA
Review of Decisions on Equitable Claims
- 1. A motion to suspend, modify or vacate the judgment: must be decided w/in 21 days after the entry of judgment
- 2. Bill of Review: filed w/in six months of etnry of judgment and based upon a) newly-discovered evidence, or 2) error of law appearing on face of record
- -after-acquired evidence standard: 1)could not have been discovered for use tat the trial in the exercise of reasonable diligence; 2) is not merely cumulative, corroborative or collateral; and 3) is material, and would probably produce opposite results on the merits at another trial
- 3. Appeal: in domestic relations it is a matter of right to Court of Appeals; in all others, appeal only to supreme court and is discretionary
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Equitable Remedies in VA
- Three Steps:
- 1. Eligibility: two general requirements a) legal remedy must be inadequate, b) equitable relief must be feasible
- 2. Specific tests: Are any specific requirements for the particular equitable remedy you seek satisfied?
- 3. Defenses: Are there any equitable defenses which would prevent otherwise available equitable relief?
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