Dissolution and Divorce Flashcards
Non-Marital Relationship Dissolution
What are the formal nonmarital structures?
- domestic partnerships (file notice of dissolution at govt office)
- civil unions (dissolve same manner as marriage)
- reciprocal beneficiaries
- designated beneficiaries
if no state involvement in creation of non-marital, no state involvement in dissolution
Fault-Based Divorce
What does a spouse have to do to prove fault-based divorce?
- file a divorce petition in an adversarial proceeding
- prove that the D spouse’s conduct violated statutorily enumerated ground for divorce, and
- establish that the moving spouse is innocent and blameless
if the moving spouse has any fault, no divorce is granted.
Fault-Based Divorce
What were the grounds for fault-based?
- Cruelty
- Adultery
- Indignities to the Person
- Actual or Constructive Desertion
- Willful Neglect
the concept of guilt/innocent, fault/liability
Fault-Based Divorce
Why choose fault-based divorce?
- PRACTICAL: can be a factor in context of spousal support, child custody, and division of property.
- CULTURAL: may give client satisfaction of moral settlement and showing who’s right or wrong; related to shame in culture, fault could alleviate that.
Fault-Based Divorce
What are the benefits and consequences of fault?
- encourages foresight before getting married
- if divorce is easy, then people could get married for practical reasons because it’s easy to get out of.
- state involvement gives sense of closure
- accused spouses may assert defenses
- has to prove other party’s at fault
- negative effect on children
- for adultery, requires third party to appear and corroborate.
- incentivizes adversarial nature which leads to more disputes
Fault-Based Divorce
What do courts consider when assigning fault?
- who caused the marriage to end or assign blame?
- who is morally at fault?
- who caused the downfall of marriage?
asks judge to rely on moral intuition of right/wrong
Benscoter v. Benscoter
What is Indignities to Persons?
- course of conduct that displays problematic behavior
- if provoked by other party, not eligible for divorce unless retaliation=excessive.
Benscoter v. Benscoter
On what grounds is divorce not eligible under?
illness
Benscoter v. Benscoter
What is the holding and reasoning of the Court?
- Mr. B wasn’t eligible for divorce because illness is not grounds for divorce.
- The standard for fault is to determine whether the accused spouse is truly at fault
- and then determine whether the moving spouse is an “innocent and injured spouse”
- in this case, Mr. B was having an affair so not innocent.
- Court decides not to find him at fault because does not want to let him off easy and does not want wife to be left without support since she’s ill.
verbal abuse was not sufficient to show indignities to a person
Rankin v. Rankin
How do you prove cruel & barbarous treatment?
- must show actual violence or reasonable apprehension of the same + endangers the life or health and renders cohabitation unsafe.
verbal abuse was not sufficient and conflictng evidence
Rankin v. Rankin
How do you prove desertion?
*must be shown that the spouse has been “willfully and maliciously put out in the common habitation by force or justifiable fear of immediate bodily harm or locked out against his will.”
no evidence he didn’t return bc of fear
Rankin v. Rankin
Holding?
- moving spouse must prove fault by clear & convincing evidence.
- unhappiness alone does not merit divorce.
- Demonstrates the need to meet specific fault-based criteria and the court’s focus on determining the “innocent” spouse.
Ricketts v. Ricketts
Holding?
- Living in separate bedrooms or ceasing marital relations doesn’t establish desertion because the couple agreed to the arrangement.
- actual desertion is the leaving; constructive desertion is render continuance of the marriage unbearable – here it is the departing party who has the cause of action for divorce
- grants a limited divorce which allows them to live separately but does not sever marital bond
- there must be intent to leave marriage
Ricketts v. Ricketts
What are the two types of divorce talked about in this case?
- a limited divorce which allows them to live separately but does not sever marital bond
- in contrast, absolute divorce severs bond and entitles spouse to remarry
Kucera v. Kucera
What fault-based defense is used in this case? What is the effect?
- A showing of recrimination = divorce automatically denied. No discretion.
- Recrimination = legal defense to divorce by making similar allegations to other parties.
- Both parties verbally abused each other
