Divorce and Legal Separation

Question 1

What jurisdiction can a divorce action be brought?

Answer 1

A jurisdiction where at least one spouse is domiciled and intends to remain.

Question 2

Can multiple states maintain jurisdiction over a divorce?

Answer 2

Yes, and if one state issues a divorce decree, the other state will lose subject matter jurisdiction.

Question 3

What recognition must states give to divorce decreees?

Answer 3

A court must give full faith and credit to any divorce decree issued by a court that had personal jurisdiction over the defendant.

Question 4

What is mediation and what are a mediators duties

Answer 4

Mediation is a meeting between the parties and a neutral mediator brokering a deal.

Mediator must:
1. explain the process
2. explain the right to independent counsel
3. ensuring that the parties have enough information to make informed decision making
Remain impartial and disclose biasse
Control for any power imbalance between the parties.

Question 5

What grounds are there for divorce?

Answer 5

Either “no-fault” or “fault”

Question 6

What is No Fault divorce?

Answer 6

A divorce where no party is “at fault” but requires a showing that:
1. Both spouses agree that the marriage is irretrievably broken (bilateral)

2. Spouses have been living apart for a specified and continuous period of time generally ranging from 90 days to 18 months.

Note: this can be unilateral or bilateral. If bilateral, time period can be shorter. If unilateral, time period likely needs to be longer.

3. Both spouses agree they are no incompatible and can no longer be married. (bilateral).

Question 7

What are grounds for “Fault” in divorce?

Answer 7

1. Adultry: generally, filing spouse need only present circumstantial evidence of opportunity and inclination, but corroboration is often required.
2. Willful desertion or abandonment: Unjustified departure from the marital home for a specified period with no intent to return. Generally requires a request for them to come back and them refusing.
3. Exterem and physical mental cruelty.
4. Voluntary drug addiction or habitual drunkenness commencing after themarriage.
5. Insanity.

Question 8

What are defenses to no-fault divorce?

Answer 8

The only defense is to deny the existence of one of the above grounds. One spouse may claim that a reconciliation restarted the clock for living separate and apart.

Question 9

What are defenses to no-fault divorce?

Answer 9

1. Collusion: agreement to simulate grounds for divorce or to forgo raising a valid defense.
2. Connivance: consenting to the other spouse’s conduct (think swingers)
3. Condonation: Forgiveness of marital offenses with full knowledge of the wrongs.
4. Recrimination: when the seeking spouse is also guilty of misconduct for which a divorce may be granted.

Question 10

What is legal separation?

Answer 10

Courts may grant an order legally separating the parties, but not terminating the marriage, and spouses can have their rights to child support, spousal support, and custody.