Divorce Proceedings Flashcards
What are the two types of jurisdiction in family law?
Subject matter jurisdiction and personal jurisdiction
Subject matter jurisdiction concerns the marriage itself, while personal jurisdiction concerns the parties in the marriage.
How is subject matter jurisdiction established in divorce proceedings?
By the domicile of one of the parties within the state at the time of filing
Domicile requires both physical presence in the state and intent to make it a permanent home.
What is required for personal jurisdiction over the defendant?
Necessary for the court to enter or enforce any decrees in personam
This includes support obligations, orders relating to out-of-state property, or contempt proceedings.
Is personal jurisdiction required for a court to enter a divorce decree?
No
Personal jurisdiction is not necessary for entering a divorce decree.
What determines proper venue in divorce proceedings?
Generally in the county where either party resides
Venue is not jurisdictional and objections are waived if not made timely.
What are some fault-based grounds for divorce recognized in many states?
- Desertion
- Adultery
- Impotence
- Cruelty
- Imprisonment
- Habitual intoxication
- Drug addiction
Define ‘Desertion’ as a ground for divorce.
Abandonment of marital cohabitation without reasonable cause with intent to desert
Voluntary separation negates the requisite intent.
What is constructive desertion?
One spouse forces the other out or the latter leaves due to fear of immediate bodily harm
This must continue for the requisite period of time.
What is required to prove adultery in divorce proceedings?
Circumstantial evidence is usually permissible, focusing on opportunity and inclination
Example: A detective videotaping a spouse entering a hotel with an intimate stranger.
What constitutes cruelty as a ground for divorce?
A pattern of physical abuse causing physical injury or a single egregious act of violence
Indignities may also be considered as mental cruelty.
What are the two aspects required for a no-fault divorce?
- State of mind of the parties
- Separation for a definitive period of time
What is the legal standard for a no-fault divorce regarding the state of mind?
Marriage is ‘irretrievably broken’ with no reasonable prospect of reconciliation
List the defenses available for fault-based divorce actions.
- Collusion
- Connivance
- Condonation
- Recrimination
Define ‘Collusion’ in the context of divorce.
An agreement between spouses where one wrongfully asserts a breach of marital duty to obtain a divorce
What is ‘Connivance’?
Conduct by the plaintiff facilitating the commission of a marital wrong by the defendant
What is ‘Condonation’?
Forgiveness of a marital wrong, allowing the marital relationship to continue
Conditional if based on the erring spouse not resuming misconduct.
What does ‘Recrimination’ mean in divorce actions?
Both spouses are guilty of fault grounds, leading to a denial of divorce to either party
Many states now treat this as an affirmative defense.
Is there a defense for no-fault divorce actions?
No, a court can only mandate a separation period
