Divorce and Separation

Question 1

Jurisdiction

Answer 1

1-one of the spouses must be domiciled in the state seeking to enter the divorce
2-generally, if the spouse is a resident of the state for a minimum period of time (90 days to 6 months), theres a presumption he’s domiciled there & the court will have jurisdiction
3-compare jurisdiction for the court to determine financial issues–the court must have personal jurisdiction (sufficient contacts) over both parties

Question 2

Grounds for Divorce–No-Fault Divorce

Answer 2

1-allows for dissolution of marriage w/o regard to marital fault
2-generally, can be allowed on proof of: A-irreconcilable differences; B-living separate for a specified period of time; C-incompatibility

Question 3

Grounds for Divorce–Fault Based Divorce

Answer 3

1-adultery: often proven by circumstantial evidence of: opportunity and inclination; corroboration of adultery often required
2-desertion for a specified time w/ no intent to return
3-cruelty (physical or mental)
4-habitual drunkenness or abuse of drugs commencing after marriage
5-insanity (may require institutionalization)

Question 4

Defenses to Divorce

Answer 4

1-for no fault divorces, traditional defenses not usually available, but 1 spouse can claim reconciliation to restart the time clock for living separate and apart
2-for fault based divorces, defenses are rarely used, but still exist
i-collusion (parties agree to grounds for divorce)
ii-connivance (plaintiff willingly consented to other spouse’s misconduct)
iii-condonation (plaintiff forgave the marital offense w/ full knowledge of the offense)
iv-recrimination (plaintiff also guilty of marital fault–doctrine of unclean hands)

Question 5

Legal Separation

Answer 5

1-often permitted for same grounds as divorce
2-can be referred to as “divorce from bed and board”
3-effect of legal separation:
i-parties still married
ii-parties can seek to have their rights regarding property, spousal support, child custody, and child support decided
4-court may permanently divide marital property when legal separation is granted–if so, after acquired property is separate property
5-why do it? religious reasons, elderly, or keep status for insurance or tax benefits