Divorce and Separation

Question 1

Procedural Aspects of a Divorce Proceeding:

Answer 1

• may try by a judge** OR **jury
• jurisdictional requirement: one of the parties must be a bona fide resident** of Georgia for **6 months
• sister states will recognize the divorce decree provided one of the parties is domiciled in Georgia
• provisions of the decree (e.g., property rights, spousal support, child support) get Full Faith and Credit only if the court has personal jurisdiction over the defendant

Question 2

Fault-Based Grounds for Divorce

Answer 2

Adultery

• largely based on circumstantial evidence

Willful** and **continued** **desertion** for a period of at least **one year without justification

Cruel Treatment

• willful infliction of physical or mental pain on the other (may be established by a pattern)

Voluntary Drug Addiction** or **Habitual Drunkenness

Mental Incapacity at the time of marriage

Conviction** for an offense involving **moral turpitude** with a sentence of **two or more years

Incest

Impotency at the time of the marriage: 1) incurable; 2) not merely temporary

Force, menace, duress, or fraud in obtaining the marriage

Pregnancy** of the wife by a **man other than the husband**, at the time of marriage, **unknown to the husband

Incurable mental illness

Question 3

Grounds for Divorce

Answer 3

• Fault
• No Fault

Question 4

Defenses to Faul-Based Grounds for Divorce:

Answer 4

Collusion

• an agreement to simulate grounds for divorce

Connivance

• willing consent by one spouse to the other’s misconduct

Condonation

• forgiveness with full knowledge that a marital offense has occurred and continued the marital relation

Recrimination

• party seeking divorce is also guilty of marital fault that’s grounds for divorce

Question 5

Recitation for a no-fault-based divorce

Answer 5

The marriage is irretrievably broken** with **no possibility of reconciliation

Question 6

What is the stick for a no-fault based divorce?

Answer 6

A thirty-day wait period

Question 7

What is a legal separation (separate maintenance)?

Answer 7

• The marriage is intact in name only
• property division and alimony awards may be accomplished

Question 8

What is the Procedure Involved in Division of Property?

Answer 8

• a court will divide porperty into separate property** and **marital property
• the court will make an equitable division** of the **marital property

Question 9

Define Separate Property:

Answer 9

Property owned prior to the marriage**, any **appreciation** it has earned, and any additional **separate property acquired** through **gift**, **bequest**, **devise**, or **descent

Question 10

Define Marital Property:

Answer 10

“everything else”

Question 11

What is the Significance of Mixed Property?

Answer 11

• includes both separate and marital property
• will become marital property if it is inextricably mingled with marital property
• accounting methods and tracing will now make it incredibly difficult to classify as inextricably mingled

Question 12

Factors in Making an Equitable Division:

Answer 12

Who are they

• age, education, background, earning capacity
• duration of the marriage and existence of prior marriages
• standard of living during the marriage, including expenses

What do they have

• each party’s opportunity to acquire future income
• each party’s income, including employability
• assets and liabilities of each party

How did they get it

• source of the funds used to purchase the property
• contribution to the marital property of each party
• contribution of a homemaker

Where should it go

• heath of the parties
• needs of the parties (physical and emotional)
• provisions for custody of minor children
• whether distribution is in lieu of or in addition to an award of spousal support
• marital fault (Georgia is a minority in considering this factor)

Question 13

Division of Property–Pensions

Answer 13

Pension earned during the marriage is marital property

Question 14

Division of Property–Professional Degrees

Answer 14

• degrees and licenses themselves are not marital property
• value of a professional practice may be considered in division of property

Question 15

Division of Property–Personal Injury Actions

Answer 15

• pain, suffering, and disfigurement of the injured spouse: separate property
• loss of consortium of the non-injured spouse: separate property
• lost wages and medical expenses during the marriage: marital property
• los wages and medical expenses after the marriage: separate property

Question 16

What are the Grounds for Modification of a Division of Marital Property?

Answer 16

The same grounds as those for annulling a marriage

Question 17

When may spousal support be awarded

Answer 17

• while the parties are still married
• during the pendency of a divorce
• as part** of the terms of the **divorce decree

Spousal support is available to either party

Question 18

When is spousal support appropriate?

Answer 18

• Spousal support is based on need; it is not a matter of right.
• Its purpose is to insure an adequate income stream** for persons for whom **economic deficiency has resulted from the marital relationship

Question 19

List and describe the four types of spousal support

Answer 19

Permanent Period Alimony:

• indefinite and at the discretion of the court
• automatically ends at the death of either spouse or at remarriage of the recipient
• cohabitation in a meretricious relationship also terminates the award (“live in lover”)
• modification appropriate upon a material chance in the circumstances

Lump sum alimony:

• present value of long-term support
• payable in a lump sum or in installments
• continues until balance is paid
• no modification

Rehabilitative alimony:

• equitable remedy designed to get nonworking spouse back into the workplace
• specified time period; OR
• automatically ends at the death of either spouse or at remarriage of the recipient; OR
• cohabitation in a meretricious relationship also terminates the award
• modification appropriate upon a material chance in the circumstances

Reimbursement alimony:

• repayment based on supporting spouse’s contribution only
• lump sum or installments
• no modification

Question 20

Factors to consider in determining an award for spousal support:

Answer 20

Duration of the marriage

Standard of living during the marriage

Financial resources of each party

• marital porperty
• income and assets
• ability to meet needs
• support of child

Age, and physical and emotional conditions of the parties

Contributions of each spouse to the marriage

Time needed to get education or training to enable a party to procure appropriate employment

Ability to pay spousal support while meeting own needs

Conduct, including marital fault

• adultery bars a spouse from receiving spousal support

Question 21

Is modification of a spousal support award ever appropriate?

Answer 21

Yes, for substantial and material changes in the circumstances