Divorce Proceedings

Question 1

Subject Matter Jurisdiction

Answer 1

• A court generally has subject matter jurisdiction one of the parties is domiciled in the state at the time of filing the action, regardless of whether or not the parties lived there as a couple.
• However, some states impose a jurisdictional req. that one of the parties must have resided in the state for a specified period of time prior to the filing of the divorce action.

Question 2

Domicile

Answer 2

The same as civil procedure. Domicile generally requires both physical presence in the state and the intent to make the state a permanent home.

Question 3

Personal Jurisdiction

Answer 3

Is not required for a court to enter a divorce decree. However, it is required to enforce any divorce decrees including: support obligations; orders relating to out-of-state property; or the institution of contempt proceedings to enforce such orders.

-The D-spouse must have sufficient minimum contacts with state such that entry of such an order does not offend traditional notions of fair play and substantial justice.

Question 4

Venue

Answer 4

Proper venue is set by statute, generally in the county where either party resides. Remember that a venue objection is generally waived if not made within the time for the defendant’s response.

Question 5

Grounds for Divorce (Fault v. Non-Fault)

Answer 5

Many states permit divorce on no-fault grounds but have retained fault grounds as well.

Question 6

Fault-Based Grounds

Answer 6

Include:

• desertion
• adultery
• impotence
• cruelty
• imprisonment
• habitual intoxication
• or drug addiction

Question 7

Desertion

Answer 7

A spouse may obtain a divorce when the other spouse, without reasonable cause, abandons marital cohabitation with the intent to desert, and willfully persists for a continuous and set period of time. Voluntary or consensual separation negates the req. intent

Question 8

Constructive Desertion

Answer 8

When one spouse forcibly and without consent puts the other out of the house, or the latter leaves because of justifiable fear of immediate bodily harm, and the separation continues for the requisite period of time. (e.g. domestic violence)

Question 9

Adultery

Answer 9

Only requires circumstantial proof of opportunity & inclination (e.g. a P.I. sees a spouse enter a hotel with an intimate stranger and leaving the next morning

Question 10

Impotence

Answer 10

The inability of one party to perform the act of sexual intercourse

Question 11

Cruelty

Answer 11

Usually consists of a pattern of physical abuse committed by one spouse upon the other which causes physical injury. However, a single egregious act of physical violence may be sufficient.

-However, some courts hold that indignities (mental cruelty) that makes a course of conduct “unbearable” or “intolerable” is sufficient.

Question 12

No-Fault Divorce

Answer 12

Requires proof of two aspects:

• 1) State of mind of parties
• 2) Separation for a definitive period of time

Question 13

State of Mind of Parties

Answer 13

Marriage must be “irretrievably broken” (irreconcilable differences). There can be no reasonable prospect of reconciliation.

Question 14

Defenses to Fault-Based Divorce

Answer 14

Include:

• collusion
• connivance
• condonation
• recrimination

Question 15

Collusion

Answer 15

An agreement between the spouses, express or implied, whereby one of them wrongfully asserts that the other has committed a breach of marital duty in order to obtain a divorce.

Question 16

Connivance

Answer 16

Conduct by the plaintiff facilitating the commission of a marital wrong by the defendant (usually pops up in adultery cases)

Question 17

Condonation

Answer 17

Where one spouse knowingly forgives the other’s marital wrong (usually adultery).

Question 18

Conditional Condonation

Answer 18

When condonation is made contingent on the erring spouse not resuming the misconduct. A conditional condonation does not preclude the injured spouse from raising the initial misconduct as a ground for divorce where the conditions imposed on forgiveness have been violated.

Question 19

Recrimination

Answer 19

Where both spouses are guilty of fault grounds, the court would deny a divorce to either on the ground of recrimination. But in many states today, if both spouses allege and prove fault grounds, the court may grant a divorce to each.

Question 20

Defenses to No-Fault?

Answer 20

There’s no defense.

Question 21

When Does the Divorce Officially End

Answer 21

• Majority Rule- the marriage ends on the date when a final divorce decree is entered
• Minority Rule- the marriage ends after the date of the permanent separation or the date of the divorce filing.