Divorce/Dissolution of Legal Marriage

Question 1

No Fault Grounds

• list
• Jx ddx
• How many Jx?
• UMDA

Answer 1

1) Irretrievable Breakdown
2) Living Separate & Apart
3) Mutual Consent

d/dx Jx will require one and/or two and/or three. 
#2 may have a minimum statutory time threshold.

Some Jx are exclusively “no fault.”
All Jx at least offer it.

UMDA: Irretrievable Breakdown & 180 days apart.

Question 2

Irretrievable Breakdown

Answer 2

No-Fault Ground.

Determination that there is no reasonable prospect of reconciliation.

Problematic if the other party doesn’t want the divorce, because it may evince the possibility of reconciliation.

However, CTs are very hesitant to get involved & encourage reconciliation.

Some Jx: allow this to be UNILATERAL NO-FAULT GROUND.

Question 3

Living Separate & Apart

Answer 3

No-Fault Ground: typically a time limit (60days, 180 days (UMDA), etc).

Question 4

Fault-Based Grounds

*list

Answer 4

1) Adultery
2) Physical Cruelty
3) Mental/Emotional Cruelty
4) Desertion
5) “Constructive Desertion”
(a) Living under same roof kind
(b) Driven to leave (merges provocation)

Question 5

Defenses to Fault-Based Grounds

Answer 5

1) Recrimination (“clean hands”)
2) Provocation
3) Connivance
4) Collusion
5) Condonation

Question 6

Adultery - defs

Answer 6

1) “one spouse rejects the other by entering into a personal, intimate, sexual relationship w/other” NJ (flirting or dating not enough).
2) Some Jx: “heterosexual vaginal intercourse” only counts.
3) Some Jx: specify the kind of sex acts that count… in some places only heterosexual acts count, in some places as much as oral or fondling counts.
In Other Jx (#4) don’t even need to prove it actually happened, just that the intent & opportunity were there:
4) Clear & Convincing Evidence of:
(a) Adulterous Inclination
(b) Reasonable Opportunity to Satisfy
(c) No innocent theory
5) Only counts if it occurred pre-separation (if living Separate & Apart)
6) Still counts if it occurred post separation (if living Separate & Apart).

Question 7

Adultery - Std proof/evidence

Answer 7

Typically Clear & Convincing Evidence
..it is evidence that is:
1) logical
2) tends to prove the facts alleged
3) is inconsistent w/an innocent theory that is a reasonable theory

Some Jx just require “preponderance of the evidence” (>50%).

CIRCUMSTANTIAL EVIDENCE Allowed… but must add up to the respective evidentiary standard.

Question 8

Physical Cruelty

• def/aka
• elements
• std proof

Answer 8

aka “excessively vicious conduct”
aka “cruel treatment”

Elements:
1) Physical Harm
2) Repeated or Intolerable
+Some Jx will require a pattern of serious harm… and will look the other way on “isolated incidents” or a failure to show the paper trail.

std of proof:
easier to prove than adultery, typically.

“cruelty includes ANY conduct on part of the spouse which is calculated to impair the health or destroy the happiness of the other.”

Question 9

Mental/Emotional Cruelty

Answer 9

1) Habitual, Continuous, Permanent, & plain manifestation of “Settled Hate.”
2) Conditions are intolerable due to alienation & estrangement cause by the spouse @ fault.
3) Quantum & Quality
* if long marriage, then needs to be high
* if short marriage, then not so much

“cruelty includes ANY conduct on part of the spouse which is calculated to impair the health or destroy the happiness of the other.”

Question 10

“Constructive Desertion”

Answer 10

UNDER THE SAME ROOF, DIFF LIVES

(i) Cohabitation
(ii) Instigated by one spouse, so the other is not at fault.

*Sometimes required: {substantial or statutorily defined} amount of time.

Policy: promote marriage & reconciliation of troubled marriage

Question 11

Desertion

Answer 11

(i) Willful abandonment of Cohabitation
(ii) For {substantial or statutorily defined} amount of time.

Ranges from about 60 days to 3 years.

Policy: promote marriage & reconciliation of troubled marriage

Question 12

Defenses to Fault-Grounds for Divorce

*list

Answer 12

1) Recrimination (“Clean Hands”)
2) Provocation
3) Connivance
4) Collusion
5) Condonation

Question 13

Summary Dissolution

Answer 13

possible conditions:

1) Mutual Consent to Divorce
2) Marriage < 5/3/1 years
3) No kids
4) Modest assets, few financial “entanglements”
5) No Real Property
6) Waived Spousal Support
7) Agreement on disposition of Communal Property.

Question 14

Unilateral Divorce

Answer 14

Fault-Based Grounds: typically permitted

No Fault Divorce:
Some Jx: allow Unilateral showing of Irretrievable Breakdown is SUFFICIENT.
Other Jx: NO Unilateral on no-fault-grounds.

Question 15

Recrimination (Defense)

*elements

Answer 15

(i) Both at fault (“no clean hands”)

(ii) Then no fault-based D. is allowed if successful

Question 16

Provocation (Defense)

*elements

Answer 16

(i) Spouse admits to the conduct alleged [fault condition]
(ii) But shows that conduct was “reasonably provoked”
(reasonable man similarly situated)

Question 17

Connivance (Defense)

*elements

Answer 17

(i) Spouse 1 is at fault
(ii) but it is only b/c Spouse 2 was set up by Spouse 1

e.g.: the Blonde in 1,000 N.Y. Divorces

Question 18

Collusion (Defense)

*def

Answer 18

*Spouses conspire to fabricate grounds. More common prior to all States adopting “no-fault divorce”

• *Could be invoked to turn on the other spouse
• *Could be invoked in response to to the other spouse trying to overpower the other one.

Question 19

Condonation (Defense)

• elements
• revival

Answer 19

typical elements

1) Forgiveness of Marital Wrongdoing
2) Voluntary
3) Cohabitation

*None of which were done out of necessity.

However, if spouse “faults” again, then possible REVIVAL.

Revival Stuff

a) Sex not always sufficient
b) failed attempts not always sufficient
c) counseling not always sufficient
d) cohabitation especially not enough

+Must resume a marital-like relationship to be considered “reconciled”