Divorce and Separation Flashcards
Jurisdiction - Multiple States
- possible that multiple states would have jur over a divorce
- might have multiple cases proceeding at once until one court renders a judgment causing the other to lose subject matter jur
Residency Requirements
- only one of the parties needs to be domiciled in the jurisdiction for ct to have jur over divorce
- most states set a minimum residency period (ex: 90 days) before an action may be filed
In Rem Action
- divorce = viewed as in rem action -> don’t need personal jur over the defended spouse (filing spouse’s domicile may be enough)
-> BUT would need pj if filing spouse wants any remedy beyond a simple divorce decree (i.e. you could technically get the divorce, but the court wouldn’t be able to decide property division or alimony w/o pj)
Service + Due Process
- def in divorce case has due process rights of notice + opportunity to be heard
- BUT certain types of constructive service (ex: publication) may be permitted
Recognition of Divorce Decree
- full faith + credit as long as one of the parties was domiciled in the state that granted the divorce -> then recognized as valid in all states
- BUT provisions of the decree relating to property rights, spousal support, child support, + other financial issues only get full faith + credit if court had pj over def
Comity
- courts are likely to recognize foreign divorce decrees if one party was domiciled in the country rendering the judgment
Mediation
- in some states, court may refer parties to a divorce action to court-approved mediation
- agreement reached must be based on decision of the parties, not decision of the mediator
-> mediator can’t advocate for either party or coerce party to make a decision
Mediator Duties
Mediator must:
- explain the mediation process
- explain right to independent counsel to the parties
- ensure that the parties have enough info for informed decisionmaking
- remain impartial + disclose any potential bias
- control for any power imbalance between the parties
No-Fault Divorce
Generally requires showing of one of the following:
- both spouses agree that the marriage is irretrievably broken (aka irreconcilable differences)
- spouses have been living apart for a specified + continuous period of time
-> time varies + parties still married during the separation window
- both spouses agree they’re now incompatible + can no longer be married
Fault Grounds for Divorce
- adultery
- willful desertion or abandonment
- extreme physical or mental cruelty
- voluntary drug addiction or habitual drunkenness commencing after the marriage
- insanity
Adultery
- filing spouse usually presents circumstantial ev of opportunity + inclination
- corroboration is often required
Willful Desertion
- requires an unjustified departure from the marital home for a specified period with no intent to return
No-Fault Divorce - Defense
- the only defense to no-fault divorce = deny the existence of one of the above grounds
-> one spouse may claim that a reconciliation restarted the clock for living separate + apart - note to self though that in one of the practice essays, this was not an effective defense for irreconcilable differences
Defenses for Fault-Based Divorces
- collusion
- connivance
- condonation
- recrimination
Collusion
- agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense
- in some jurs, collusion will prevent the granting of divorce
