Chp 8: Divorce Flashcards
The likelihood that a marriage will end in divorce is decreased where:
Likelihood of divorce is decreased by all of the above.
Other Choices:
- Marriage happens at a later age.
- The parties enjoy relatively high household income.
- The parties are entering into their first marriage.
- The parties enjoy a relatively high level of education.
Exp: The likelihood of divorce is decreased by older age, high income, and absence of previous divorce, and high educational attainment.
Ecclesiastical courts in England conceived of legal separation and annulments (the precursors to absolute divorce) as punishment for marital wrongdoing.
Which of the following was a consequence of that understanding when divorce first moved to civil courts in England in 1857, as well as in courts in early U.S. history:
All of the Above.
Other Choices:
- Divorce required a finding of fault by one party.
- Divorce required that the petitioning party be innocent of fault.
- Divorce required a fact-finding by a civil court.
Exp: Divorce required a fact-finding of fault in a civil court, and could not be obtained if the petitioning party was also guilty of marital fault.
California became the first to adopt no-fault divorce due largely to:
Corruption of the divorce process due to perjury and other artifices aimed at demonstrating fault where it did not exist but where the parties agreed to divorce.
Exp: The harshness of the fault regime meant that even consenting parties could not obtain a divorce if neither had committed legal fault. Therefore, consenting couples often fabricated stories of fault, and critics of fault-based divorce felt that these fabrications undermined the integrity of the courts.
Jin and Alicia, married for 4 years, have a lengthy discussion one evening triggered by a disagreement over chores. Over the course of the 6 hour discussion, Jin and Alicia unload all of their grievances on one another, and decide that they need to divorce. Jin moves out of the marital home the next morning.
Because they both agree to this divorce:
They will likely not obtain the divorce until the passage of a statutorily determined waiting period between the time they separate and the time they can obtain a divorce.
Exp: Most states have a mandatory separation period before a court will grant a divorce, even when the divorce is sought by mutual consent.
Which of the following is not a reason a party might seek divorce on fault grounds even though no-fault grounds are available?
Fault grounds would ensure that the innocent party would receive custody of children;
Exp: This would not be a reason to pursue fault-based divorce. Fault alone does not determine child custody, and becomes relevant only where it can be shown to have the potential for negative impact on the child.
Adultery as a legal ground for divorce is limited in the following ways:
Adultery cannot be a ground for divorce if it is limited to only online activity.
Exp: While cultural sources identify “virtual infidelity” and “emotional” affairs as a form of adultery, the legal definition of adultery as a ground for divorce requires physical sexual contact, and does not extend to online behavior.
The rate of divorce in the United States is:
Declining.
Exp: The divorce rate increased in the 1970s and 1980s, perhaps in response to the widespread adoption of no-fault divorce in the 1970s, but it has declined steadily since the 1980s.
After marriage counseling, Sasha forgives her spouse Ali’s infidelity, Ali ends his extramarital affair, and they reconcile. Six months later, Sasha has a change of heart, and seeks a divorce on the grounds of adultery, because fault grounds will speed a divorce and would put her on the best footing in her claim for spousal maintenance.
What defense will Ali raise to the fault grounds of adultery?
Condonation.
Exp: Condonation is a defense to fault grounds where a victim of fault has forgiven the offender and only later attempts to raise the conduct for which the offender was forgiven.
As a ground for divorce, cruelty requires:
None of the above.
Other Choices:
- A finding of physical conflict.
- An order of protection from a court with domestic violence jurisdiction.
- A threat to the pleading spouse’s life.
Exp: None of the answers above are requirements for the granting of a divorce on the ground of cruelty. Cruelty as a fault ground consists of “conduct . . . on the part of the husband or wife which is calculated to seriously impair the health or permanently destroy the happiness of the other.” Das v. Das, 754 A.2d 441 (2000).
Khalil and Heba decide to separate because they both agree that Khalil’s mental health struggles at times cause him to engage in behavior that is frightening and disruptive to their children, and their children’s therapist has indicated that the children need a more stable home environment.
Which of the following is not a reason that they might choose to formalize a legal separation instead of a divorce because:
They want to be certain that neither will be able to inherit assets from the other at the time of either of their deaths.
Exp: This is not a reason to choose separation over divorce. As long as they remain married, even though legally separated, they retain the right of elective share against each other’s estates in the event of the death of one of them.
Which of the following does not represent an ethical challenge in providing “unbundled” legal services under the ABA Model Rules of Professional Conduct?
The ethics of providing limited representation.
Exp: Model Rule 1.2(c) provides: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Model Rules of Prof’l Conduct, r. 1.2(c) (Am. Bar Ass’n 2018). In 2013, the ABA also adopted a resolution proposing that lawyers “when appropriate, [] consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services.” Report of Am. Bar Ass’n Standing Comm. on Delivery of Legal Services on Unbundling Resolution 108 (2013), https://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_unbundling_resolution_108.authcheckdam.pdf.
Paul is a low-income father who is seeking a divorce from his spouse. Just before the couple separated, Paul’s spouse won the state-wide lottery. The spouse received a lump-sum payment of the winnings after the parties separated.
Which of the following is not a path Paul could pursue in going forward with divorce and custody proceedings?
Paul could hire an attorney to represent him in the proceedings and agree that the attorney will receive a fixed percentage of Paul’s property distribution settlement.
Exp: Agreements for contingent fee cases are void because they are against public policy. See, e.g., Medina v. Richard A. Kraslow, P.C., 53 N.Y.S.3d 116, 117–18 (App. Div. 2017). The Model Rules prohibit contingent fees “in domestic relations matters, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” Model Rules of Prof’l Conduct, r. 1.5(d)(1) (Am. Bar Ass’n 2018).
Shaunda is representing Thomas in his divorce. Thomas has been struggling with depression for the last several years and has begun abusing alcohol to cope with the heated custody dispute. At their last meeting, Thomas relayed to Shaunda that his drinking had increased, and that he had driven his children home from school while intoxicated. Shaunda has encouraged Thomas to seek assistance for his drinking problem, but he insists it is under control. Thomas picks up the children from school 2-3 times a week.
What is the best course of action for Shaunda to pursue concerning the confidences Thomas has shared with her?
Disclose the client confidence if she believes it is necessary to prevent reasonably certain death or substantial bodily harm.
Exp: The Model Rules provide a limited exception to the lawyer’s obligations of confidentiality: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary * * * to prevent reasonably certain death or substantial bodily harm.” Model Rules of Prof’l Conduct, r. 1.6(b)(1) ((Am. Bar Ass’n 2018). Here, given Thomas’s recent driving while intoxicated, his refusal to seek treatment, and his frequent and regular pick up obligations, Shaunda could reasonably believe that Thomas’s children are at serious risk of “reasonably certain death or substantial bodily harm.” Id.
Rachel has known Desmond since childhood. She was an attendant at Desmond’s marriage to Josh ten years ago, and both Desmond and Josh consider Rachel to be a friend, although they lost touch when Rachel entered law school and then began a busy family law career. They recently approached Rachel seeking her assistance in what they assure her will be a straightforward, cooperative divorce process.
Which of the following would present the biggest obstacle to Rachel representing both Desmond and Josh in their divorce proceedings?
Josh wants to secure alimony based on the joint professional and personal decisions he and Desmond made during the marriage. Desmond does not want to pay alimony.
Exp: Model Rule 1.7(a) prohibits representation when a “concurrent conflict of interest” exists, meaning “the representation of one client will be directly adverse to another.” Model Rules of Prof’l Conduct, r. 1.7(a) (Am. Bar Ass’n 2018). Further, even if dual representation might otherwise be permissible, Model Rule 1.7(b) prohibits representation if the representation involves the assertion of a claim by one client against another client represented in the same litigation. Id. Josh’s claim for alimony from Desmond would seem to render Rachel’s representation of Josh “directly adverse” to Desmond. Moreover, Josh’s alimony claim represents “the assertion of a claim by one client against another client by represented by the lawyering in the same litigation.” Id. Thus, this claim likely creates a concurrent conflict of interest that cannot be overcome by Rule 1.7(b)’s exceptions. Id.
Three years ago, Justin worked with Marie and Dan to prepare their wills, to create a trust in which to transfer Marie’s recent inheritance from her parents, and to create a joint trust in which to place the couple’s retirement savings. Dan now seeks to divorce Marie, and has asked Justin to represent him.
Would it be ethical for Justin to represent Dan?
Yes, if Marie provides informed consent, confirmed in writing.
Exp: Although the Model Rules generally discourage representation against a former client in a “substantially related matter,” they permit such representation if “the former client gives informed consent, in writing.” Model Rules of Prof’l Conduct, r. 1.9(a) (Am. Bar Ass’n 2018).
