Divorce Flashcards
Jurisdiction in divorce cases
Only one of the parties needs to be domiciled in the jurisdiction.
But to determine financial issues, the court must have PJ over the defendant. There’s a limited exception for marital property located within the state.
Grounds for a no-fault divorce
- Irreconcilable differences, and
- Living apart for a continuous period of time
The fact that one spouse thinks the marriage should be saved is generally insufficient to prevent divorce.
Grounds for fault divorce
- Adultery
- Willful desertion
- Cruelty
- Drug addiction or habitual drunkenness
- Insanity
Defense to no-fault divorce
Reconciliation, or that one of the factors doesn’t exist.
Defenses to fault-based divorce
- Collusion
- Connivance (swingers)
- Condonation (forgiveness)
- Recrimination (unclean hands)
What is the equitable division of marital property?
Each spouse takes their separate property, and the court only divides the property acquired during the marriage.
What is separate property?
- Property owned before marriage
- Property acquired by gift or inheritance
- Property acquired in exchange for separate property
- Income/appreciation of separate property
What is marital property?
All other property acquired during the marriage, including:
- Earnings and bonuses (and property acquired by those)
- Employment benefits/pensions/stock options
- Lost wages
What is commingling?
Separate property is inextricably intertwined with marital property to the extent that it can no longer be traced.
What is transmutation?
Separate property that is treated in a way that evidences an intention for the property to be marital property.
What happens to separate property that is improved by the use of marital funds or the effort of a spouse?
Property remains separate, but most courts will grant reimbursement for added value.
How do courts treat property acquired before marriage but paid for after?
Majority: apportioned between separate and marital estate based on where the funds came from
How is a professional license or degree treated?
Not marital property, but some jus use alimony to compensate the supporting spouse.
What factors do courts consider in equitable division of property?
- Age/education/background/earning capabilities of both
- Duration of marriage
- Standard of living
- Present incomes
- Source of money used to purchase property
- Health
- Assets/debts/liabilities
- Needs
- Child custody provisions
- Alimony amount
- Opportunity to acquire future income/assets
- Contribution to the acquisition of assets
- Contribution as a homemaker
- Economic fault
**Marital fault is not considered!
What are the types of alimony?
- Permanent periodic spousal support
- Lump sum
- Rehabilitative spousal support
- Reimbursement spousal support
Permanent periodic spousal support
Paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
Terminates upon the death of either or the remarriage of the recipient.
Modifiable upon substantial change in circumstances.
Lump sum
Payable either all at once or via a series of payments.
Cannot be modified.
Survives the death of either spouse.
Rehabilitative spousal support
Periodic payments for a limited time to enable a spouse to gain skills to become self-supporting.
Modifiable upon substantial change in circumstances.
Terminates upon the death of either or remarriage of the recipient.
Reimbursement spousal support
Awarded to a spouse who supported the other spouse while the latter obtained a professional license/degree.
Not modifiable.
Survives the death of either spouse.
Factors to be considered when awarding alimony
- Standard of living
- Duration of the marriage
- Age/physical/emotional condition of each
- Financial resources
- Contribution to the marriage
- Time needed for the party seeking support to get training for employment
- Ability of the payor to meet their own needs while paying support
- Needs of the claimant
- Marital fault
Is a self-induced reduction in income by the payor sufficient to have alimony reduced?
No.
What is a separation agreement?
An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights.
What are the requirements for an enforceable separation agreement?
- Voluntary
- Full and fair disclosure by both parties, and
- Consideration (mutual promises within the agreement).
**Alimony/property division can be waived, but court not bound by provisions regarding children.
What is the purpose of spousal support?
To ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship.
