Divorce Proceedings (22%) Flashcards
Who has Subject Matter Jurisdiction for Divorce
District Court
What is the domicile requirement for divorce?
One of the parties must live in the state at the time the action is filed
What is the residency requirement for divorce?
One of the parties must have lived in the state for 6 months prior to filing
Venue for divorce is proper where?
Any spouse lives
A jury cannot decide in a divorce action
2
- equitable distribution
2. child support and child custody
Grounds for Divorce
2
- divorce from bed and board
2. absolute divorce
Absolute divorce is
Action that ends the marriage
Divorce from bed and board is
Legal separation, does not end the marriage
- Let’s parties live apart
- Can get order to have one move out
- Residency requirement of six months
Fault-based divorce exists in North Carolina in two places
- Divorce from bed and board
2. Alimony and post separation support
Divorce from bed and board must prove
One of the specified statutory grounds for fault
- Abandonment
- Maliciously turning the other out of doors
- Cruelty
- Indignities
- Substance Addiction
- Adultery
What is abandonment ground for fault
spouse brought the cohabitation of the parties to an end + without other spouse + without justification + without intention to reunite
-can be constructive abandonment (not having sex, witholding emotional support)
Maliciously turning the other out of doors ground for fault
Kicked out of the home
Cruelty as a ground for fault
by cruel of barbarous treatment endangers the life of the other
- course of conduct
- mental or psychological
- Cruelty is not subject to the defense of condonation (forgiveness).
Indignities as a ground for fault
A spouse offers such indignities to the other as to render their life intolerable
- course of conduct
- Consistent nagging, false accusations, keeping company with member of opposite sex
Alcoholism/Addiction as a ground for fault
if it renders life intolerable
Defenses to fault
- recrimination when both spouses are guilty, the court will deny a divorce to either on the ground of recrimination
- Collusion: when parties would collude to create a false ground for divorce
- Connivance: Moving spouse facilitated the commission of the wrong (encourages the fault)
- Condonation: forgives the other’s conduct by words or conduct (≠cruelty)–>can be conditional
Effect of the Divorce from Bed and Board
Whatever the court orders is going to be given full effect in the action for absolute divorce unless the court makes changes.
An order for divorce from bed and board will not end the marriage
If πspouse dies before divorce, then ∆ spouse cannot gain from estate of π
Award
- post-separation support
- primary residence
a dependent spouse is a spouse who
is substantially in need of the sponsoring spouse
-look at needs v. ability to pay
Dependent spouse post-separation support factors
4
- standard of living during the marriage
- Income and potential
- Debt obligations
- Reasonable living expenses
Order for post-separation support lasts
- cohabitation of the dependent spouse with another member of opposite sex
- for a specified time; or,
- until absolute divorce
When may a dependent spouse not recieve post-separation support?
If they are guilty of marital misconduct
-Weight the marital misconduct of both dependent spouse and supporting spouse?
-Marital misconduct = grounds for divorce from bed and board
Additional Grounds
-involuntary separation by a criminal act
-reckless spending wasting marital assets
-Fails to provide support to other spouse
In North Carolina, the no-fault grounds for an absolute divorce are:
(2)
- separated by 3 years or more because of incurable insanity of one of the spouses;
- continuous separation for more than 1 year
Absolute Divorce 1-Year Separation requires:
- Must live in separate residences
2. Moving party must have intent to live apart
Defenses to Absolute Divorce?
- reconciliation: parties move back in together and act as husband and wife (≠ isolate sex acts)
2.
Effect of a reconciliation for absolute divorce?
- Starts the 1 year period for separation again
2. Starts property valuation clock over
Effect of an Absolute Divorce
- ends the marital relationship (no longer fiduciary duties, or duty of support)
- Parties are free to marry other people
- Divides Properties
- Award alimony or spousal support
- Child Support
To get property in divorce, what must a spouse do?
File a motion for equitable distribution of the property
If a court grants alimony, they must specifiy
Court must give reasons for its decisions and specify in its findings what factors it has considered.
- how much it will be
- how long it will be paid
- how it will be paid
If child support and alimony are included in the same decree, they must
Show what part is alimony and what part is child support
A N.C. court has in rem jurisdiction over a divorce action if?
One of the parties is domiciled in the state
-must have lived in the state for six months and intends to establish permanent residence there
