Dissolution

Question 1

What is the jurisdictional requirement for a divorce?

Answer 1

(1) the petitioner must be domiciled in the state and

(2) one party must have a significant relationship to the state

Question 2

What is the doctrine of divisible divorce?

Answer 2

• Under the doctrine of divisible divorce, the court does not need personal jurisdiction over both parties to dissolve the marriage.
• However, personal jurisdiction is required for the court to determine property status or impose financial obligations.

Question 3

What is the proper venue for a divorce action?

Answer 3

A divorce action may be filed:

• in a county where either party resides
• in a county where a child of either party resides or
• in any other county if by agreement

Question 4

What do most states require as grounds for divorce?

Answer 4

Most states allow “no-fault dissolution” if the marriage is “irretrievably broken.” The petitioner will not be required to prove misconduct of the other party.

Question 5

When is evidence of misconduct considered in property determinations?

Answer 5

Generally, the court will NOT consider evidence of one party’s misconduct in a no-fault divorce state in determining property distribution, with limited exceptions:

• dissipation of the marital estate through gambling
• child abuse requiring the other spouse to seek assistance

Question 6

What are the duties of a mediator?

Answer 6

• explain the mediation procedure and the law
• ensure informed decision making
• explain the parties’ right to be represented by independent counsel
• make sure the parties understand that the mediator is not their lawyer
• be impartial
• disclose potential conflicts of interest

Question 7

When can a party to a divorce assert a claim based on the conduct of a mediator?

Answer 7

(1) fraud, duress, coercion, or “substantial misconduct” by the mediator
(2) resulted in an unfair agreement

Question 8

What remedy is available for misconduct of a mediator?

Answer 8

The court may set aside a divorce settlement.

Question 9

What duty have a few states held that a spouse has when negotiating a divorce settlement?

Answer 9

Some courts have held that a represented spouse has a fiduciary duty to an unrepresented spouse.

Question 10

What is the minimum waiting period for dissolution of a marriage after a petition is made or a settlement agreement is reached?

Answer 10

30-90 days after filing or service, depending on the jurisdiction

Question 11

If one party alleges that the marriage is “irretrievably broken”, what does the court do?

Answer 11

• If the other spouse agrees that the marriage is irretrievably broken, then the court shall enter the decree of dissolution.
• If the other spouse denies that the marriage is irretrievably broken, then the court must make a determination as to whether the court is irretrievably broken.

Question 12

If a court is uncertain as to whether a marriage is irretrievably broken, what can the court do?

Answer 12

The court may refer the couple to counseling for a determination of reconciliation or irretrievable breakdown of the marriage.