Divorce Flashcards
Jurisdiction - Divorce
Residency Requirement
To establish jurisdiction, one of the parties must be domiciled in the jurisdiction where the action is brought. Some states set a minimal durational residency requirement (i.e. 90 days)
Domicile alone may be basis for granting a divorce regardless of whether there is personal jurisdiction over the D. However, notice and opportunity to be heard is required.
Jurisdiction - Property Rights & Spousal Support
Generally, a court cannot determine rights to property that is located outside the state’s boundaries or rights to suppose unless it has PJ over both parties.
No Fault Divorce Defenses
Generally there are no defenses to this.
Consent by both parties is not required for divorce.
No Fault Divorce
Subjective test as to whether there is any possibility that the parties will reconcile.
Even if they continue to live together or have sex, court can still find that it is irretrievably broken.
Legal Separation
Some states allow a limited divorce.
This order does not terminate the marriage and parties are NOT allowed to remarry. However, parties may seek to have all rights regarding property, child support, etc. adjudicated.
Division of Property Upon Divorce (Tested 9x)
Depends on if community property or marital property state.
Generally, classify assets and divide equitably (not equally).
These decrees are NOT modifiable.
Factors to Consider in Division of Property
Age, education, & background.
Duration of marriage.
Standard of living during marriage.
Health, assets, debts, liabilities, needs, etc.
Marital Property - Common Examples
Pensions = marital property
Professional license / degree = not marital property
Damage Awards = depends if right timing
Marital Property - Mixed Property
COMMINGLED: Separate property may become marital property if it is inextricably mingled with marital property. This does NOT occur if the separate property can be traced to the new property.
TRANSMUTED: when property is treated in a way that evidences an intention for the property to be marital, it becomes marital.
IMPROVEMENT: if separate property improved by use of marital funds, non owning spouse may receive reimbursement for value added.
Courts split on property that was acquired before the marriage but paid for after.
Spousal Support - Generally
This may be awarded while parties are still married, during pendency of divorce, or as part of the terms of a divorce decree.
Purpose is to ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship.
Spousal Support - Award of Amount
Court has wide discretion in awarding spousal support as necessary. Court can include a number of factors. Courts are divided on whether fault can be considered.
Spousal Support - Types
Permanent Periodic: paid regularly to support spouse who has no resources nor ability to be self-sustaining; modifiable
Rehabilitative (temporary): temporary periodic payments to enable spouse to gain skills or education necessary
Lump Sum: Lump sum payment owed; non modifiable (because right has vested)
Reimbursement: fixed sum; not modifiable; rare but allows court to award money to a spouse who supported another while they obtained a degree or license (award is value of support).
If modification allowed, can only be done for unanticipated substantial and material change in circumstances.
Spousal Support - Enforcement
Civil contempt
Criminal contempt
Other sanctions: judgment against noncomplying party, seizure of real estate of the noncomplying party; attachment of wages; order of payment of attorneys fees
Child Support - Generally
Share a duty to support child. Generally based on ability to pay and needs of kid.
Courts look to child support guidelines to determine; based on age, number of children, special needs, and income.
Can be modified if substantive change in circumstances. But overdue payments cannot be modified.
Child Support - Enforcement
Wage withholding and payment to court clerk.
Interception of tax refunds.
Licenses not granted.
All remedies for spousal support.
Child Support - Jurisdiction
Home state controls:
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