Divorce Proceedings and Decree

Question 1

When may a spouse obtain a divorce due to other spouse’s actions by desertion?

Answer 1

A spouse may obtain a divorce when the other spouse:

(1) abandons marital cohabitation
(2) without reasonable cause
(3) with the intent to desert; and
(4) willfully persists for a continuous and set period of time.

NOTE: for intent to desert, Voluntary or consensual separation negates the requisite intent.

Question 2

Fault grounds for divorce: A spouse may be able to obtain a divorce under Constructive desertion. what is constructive desertion?

Answer 2

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.

Question 3

fault grounds for divorce
Does domestic violence qualify for desertion? If not what can the lawyer argue in that situation to allow the spouse to obtain a divorce?

Answer 3

No, Domestic violence is a reasonable cause for departure and does not qualify for desertion. Can argue constructive desertion by violent partner who remains.

Question 4

fault grounds for divorce: what type of evidence is permissible in proving adultery? why?

What is the legal standard? give an example

Answer 4

circumstantial rather than direct evidence is usually permissible because there is a natural secrecy to the act of adultery,

opportunity and inclination. (chance to commit adultery and would they have committed adultery)

example: EXAMPLE: Spouse hires a detective who watches the other spouse, and the detective videotapes the other spouse entering a hotel with an intimate stranger and then leaving the next morning. This is evidence of opportunity and inclination.

Question 5

most commonly, cruelty as a fault ground for divorce consists of a pattern of

Answer 5

physical abuse committed by one spouse upon the other which causes physical injury.

Yet, a single egregious act of physical violence may be sufficient.

Question 6

what does indignities mean for purposes of proving mental cruelty?

Answer 6

A course of conduct that makes life “unbearable” or “intolerable”.

Question 7

What are common fault grounds for divorce?

Answer 7

Felony Conviction 
Intoxication or Excessive Use of Addictive Drugs
Impotence
Desertion 
Adultery 
Cruelty

Question 8

To use a spouse’s felony as grounds for divorce, what is required in some states?

Answer 8

In some states a period of incarceration of a year or more is required.

Question 9

A No Fault divorce requires proof of what two aspects?

Answer 9

State of Mind of the Parties: marriage is irretrievably broken (irreconcilable differences) and no reasonable prospect of reconciliation; AND

Separation for a definitive period of time is required

NOTE: Separation for a definitive period of time
may be shortened if parties agree to the divorce

NOTE: In some states, proof of serious mental disorder resulting in the defendant’s confinement in a mental institution may also be sufficient grounds for a no-fault divorce.

Question 10

What are the defenses to Fault based divorce actions?

hint: mnemonic: RC 3

Answer 10

Recrimination
Collusion
Connivance
Condonation

Question 11

Defenses Collusion

Answer 11

Collusion is 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 12

Defenses Connivance

Answer 12

Connivance is conduct by the plaintiff: that
facilitates the commission of a marital wrong, usually adultery, by the defendant so that the desired result (divorce) occurs.

Question 13

Defenses: Condonation

Answer 13

Knowingly forgive the other spouse for wrong by words or conduct so that the marriage would continue, but it is is conditional if made contingent on the erring spouse not resuming the misconduct.

Note: 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 14

Defenses: Recrimination

Answer 14

Where both spouses are: guilty of fault grounds, the court would deny a divorce to either on the ground of recrimination.

NOTE: States began to treat recrimination as an affirmative defense, rather than a complete bar to divorce. In many states today, if both spouses allege and prove fault grounds, the court may grant a divorce to each.

Question 15

In a No- Fault Divorce action, is there a defense?

Answer 15

there’s no defense; a court can only mandate a separation period.

Question 16

How do most states (majority) handle property division?

Separate property states?

Community property?

Answer 16

The majority of states today follow: “an equitable distribution” scheme to divide spousal property upon divorce.

Separate property states: have largely adopted the community property regime at divorce, but not during marriage or at death.

Community property states: shift to equitable distribution, so there is no mandate of 50/50 division.

Question 17

What are the rules of property division for purposes of divorce based on?

Answer 17

Rules are based on an understanding that marriage is a partnership where both partners contribute labor and effort to their shared life, so both should share in the product of that labor.

Question 18

3. Property classification is primarily based on timing.
   property owned BEFORE marriage, acquired after dissolution of the marriage, or acquired by gift or inheritance to one spouse during the marriage, is?

In contrast, property acquired DURING the marriage is presumed to be community (or marital) property to which?

Answer 18

that spouse’s separate property

both spouses have a claim.

NOTE: In a majority of states, separate property, once identified, is generally not divisible and remains the property of the owner spouse. Marital property is divisible between the spouses.

Question 19

what are the basic steps in judicial division of property?

Answer 19

STEP ONE: Identify the divisible property.
STEP TWO: Value it
STEP THREE: Divide it.

Question 20

Dual Classification
(a) Marital property is:

(b) Separate property is:

NOTE: Title does not control the nature of the property; it depends on the timing of the acquisition

Answer 20

a. jointly owned and jointly acquired through the labor of the parties.
b. owned only by the person who holds title.

Question 21

States have adopted a presumption of marital property. As long as the property is coming into the marriage during the marriage, it is considered marital property.

Burden to overcome the presumption?

Answer 21

Burden is on the party trying to prove that the property is separate.

Question 22

Increased Value of Separate Property
(a) Typically depends on the reason for the increase in value.

1) Passive appreciation: separate or marital?
2) Labor during marriage: separate or marital?

Answer 22

separate property

marital property to which both parties have a claim.

Question 23

EXAMPLE: Wande owned a painting before marriage that was worth $1M. Parties are married for 10 years and then divorce. Painting is now worth $3M. Original $1M is Wande’s separate property, but what about the $2M increase?
a. If the painting’s value simply increased for other reasons unrelated to the spouse’s efforts how will the property be considered?

b. what if the painting’s value increase resulted from spouses efforts?

Answer 23

If the painting’s value simply increased upon the death of the painter or for other reasons unrelated to the efforts of the Spouse, then Wande experiences a windfall; the increased value is deemed Wande’s separate property.

But if the increase in value resulted from efforts of the Spouse—restoration of the painting, concerted marketing of the painting, etc.—then the increase in value would become marital property.

Question 24

If increase in value of property is due to both labor and luck: how do the courts handle it?

Answer 24

some courts will look at the primary factor for the increase;
others will attempt to divide the increase accordingly.

Question 25

Marital property generally does not include property that is:
(deemed separate property)

Answer 25

1) acquired by gift or inheritance
2) excluded by valid agreement of the parties
3) Acquired prior to marriage or post-separation.

Question 26

The date signifying the end of the joint acquisition period may vary. What important dates are considered?

Answer 26

i) Date of separation;
ii) Date divorce is filed;
iii) Date of the hearing;
iv) Date of decree of divorce.

Question 27

Mixed Character, Commingled, or Transmuted

Property If separate property can be traced: treat as?

If tracing is not possible: ?

treated as a gift if intended as such, so it would be

Answer 27

treat as part separate and part marital property.

separate property can transform into marital property.

marital property

Question 28

Step 3: Division is based on what is

Answer 28

fair under the circumstances not necessarily 50/50.

Question 29

Factors that may generally be considered in determining what division would be “equitable” center on two concepts.

Answer 29

(a) Financial status or needs of the parties : income, earning capacity, separate wealth, inheritance, etc.
(b) contribution to the marriage: financial, non-financial including at-home parent, care-giving parent, education, acquisition or property, dissipation of assets.

Question 30

Sometimes partly separate property and partly marital property.

1. Joint income used to pay down a mortgage.
   b. Court must

Answer 30

disaggregate the pieces.

Question 31

What is the rule concerning pension and retirement benefits accumulated by either spouse during the marriage?

Answer 31

Pension and retirement benefits accumulated by either spouse during the marriage are subject to equitable distribution, whether the accounts are vested or unvested.

Question 32

Vested benefits?

Unvested benefits?

Answer 32

Vested:
the employee has a definitive and presently existing legal right to the asset.

Unvested:
some contingency must occur, such as working for the employer a certain number of years before legal entitlement attaches.

Question 33

Defined Contribution Plan
EXAMPLE: Spouse has a retirement account where her employer matches the contributions of the employee. Although the employee contributions are vested immediately, the employer requires five years of employment before the employee is entitled to the funds from the employer match. Spouse files for divorce in year 3. How is this divided?

Answer 33

3/5 marital property and 2/5 separate property.

Question 34

What is a defined Defined Benefit Plan

a

Answer 34

A retirement account for which: the promised retirement benefit is calculated by a formula defined in the pension plan provisions

Question 35

EXAMPLE: Casey worked for Employer for five years prior to getting married. Casey has been married for five years when separation and divorce require distribution of the marital share in their 401(k) plan. The
marital share in the present value of the account is 50%, and 50% belongs to Casey alone. Assuming an equal division of the marital share, Casey’s total share of the value of the account at divorce is?

Answer 35

75%. Any post-separation contributions Casey makes in the future are hers alone.

Question 36

Stock options granted to either spouse during the marriage: whether vested or non-vested and whether or not their value is ascertainable, are presumed to be

Answer 36

marital property.

Question 37

If stock options are earned as employment compensation, their status as marital or non-marital property depends on: when acquired and

Answer 37

whether the work for which the options are compensation was performed during the marriage

Question 38

A vested employee stock option is acquired when granted, but an unvested employee stock option may require more complex analysis. Most states apply a “time rule” formula to determine when unvested employee stock options are acquired. Unvested employee stock options granted for future employment services are generally acquired over time as the stock options vest, and the question is whether the spouses

Answer 38

were living together as a marital unit at the time of acquisition.

Question 39

Is a professional degree or license considered a property interest subject to equitable division?

Answer 39

NO, Most states have held that a professional degree or license: is not a property interest subject to equitable division

Question 40

Even if a degree is not considered divisible marital property: it may be considered in the division of other marital property, as well as in alimony or reimbursement award for a spouse who

Answer 40

contributed to the support of the family while the degree-earning spouse was in school or training.

Question 41

Replacement Theory/Analytic Approach
(1) Lost Wages: To the extent the damages replace lost wages that would have been earned during marriage or medical expenses that were incurred during marriage, those damages are _______ property.

(2) Future Wages or Expenses: To the extent the damages replace future wages or future medical expenses, those damages are the?

Answer 41

marital property.

separate property of the injured spouse.

Question 42

What are the three types of alimony?

Answer 42

Periodic Alimony
Lump Sum Alimony
Rehabilitative Alimony

Question 43

Periodic Alimony

Answer 43

A periodic alimony order requires: a certain amount of money to be paid at set intervals, usually monthly.

The obligation will generally continue until:
the recipient dies, remarries, or the court modifies the order.

Question 44

Lump Sum Alimony

Answer 44

Lump-sum alimony is distinguished from the normal alimony award in that it is: for a fixed amount, rather than a periodic obligation with no aggregate limitations

Note: An award of lump-sum alimony is a final order which may not be modified, even if the lump sum is payable in installments.

Question 45

Rehabilitative Alimony

Answer 45

Rehabilitative alimony may be awarded to a spouse for a limited period of time, until: the recipient spouse can become self-supporting by entering the work force.

Question 46

Alimony is generally based on:

Answer 46

economic need, and in some circumstances, may be used to achieve fairness even if the claimant is not clearly in need.

Question 47

Under the UMDA (§ 308), an alimony order may be made only if the court finds that the spouse who is seeking alimony: lacks sufficient property to provide for their reasonable needs; and
Either:

Answer 47

(a) is unable to support themselves through appropriate employment or
(b) is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Question 48

Rules governing the factors to be considered in making an award of spousal maintenance vary from state to state, but they generally require the trial court to consider:

Answer 48

(1) The parties’ respective financial resources and needs;
(2) The contributions each has made to the marital relationship, whether financially or by providing care within the home;
(3) The duration of the marriage.

Additional considerations: Some state statutes require or allow consideration of spousal misconduct, whereas others exclude it.

Some states specifically require the court to consider one spouse’s support for: the other’s education or training and may mandate reimbursement for such contributions.

Question 49

Under the UMDA, modification of spousal support is allowed: only upon a showing of

Answer 49

a substantial and continuing change in circumstances making the prior order “unconscionable.”

NOTE: Courts consider the cause for the change in circumstances.

Question 50

What is the standard under the UMDA to request modification?

Most jurisdictions are not as stringent as the UMDA, but may place a heavy burden on the party requesting the modification, such as: Requiring a substantial change in circumstances that rendered the original award to be?

What else may courts consider?

Answer 50

under the UMDA the significant changes need to be so significant as to make the original agreement unconscionable.

Majority: unreasonable and unfair.”

NOTE: Courts consider the cause for the change in circumstances.

EXAMPLE: If a spouse responsible for alimony gets fired, they will be regarded differently than one who voluntarily quits.

Question 51

(1) Spousal maintenance generally terminates:

Answer 51

(a) after a specified term
(b) on death of either spouse; or
(c) automatically on remarriage or cohabitation

Question 52

T or F Under the UPAA, if the premarital agreement modifies or eliminates spousal support so as to cause one party to the agreement to require public assistance, the court may require the other party to pay sufficient support to avoid that result.

Answer 52

True

Question 53

Both parents owe support. The parent who has custody is presumed to provide support.
A child support order is generally entered only against the

Answer 53

the non-custodial parent.

Question 54

Child support orders are issued after consideration of the state’s child support guidelines, if any. These guidelines are generally a mathematical formula based on the income of the parents. There is a rebuttable presumption that:

Answer 54

the amount of child support, if computed consistent with the guidelines, is the proper amount of support to be ordered.

NOTE: If courts choose to deviate from the guidelines:
they must give a written explanation for doing so.

Question 55

While both parents of a minor are living and are competent and fit, they are: jointly entitled to the custody of the person of the minor. The parents have equal powers, rights and duties concerning the minor. (*Not the same as joint custody)
Standard for determining custody and the parenting time allocation between the parties is the

Answer 55

best interest of the child.

Question 56

maintain an established and stable bond with each of their parents. The court will compare the bonds between the parents and child and look at ?

Answer 56

the caregiving history between each parent and child, such that one parent’s history of serving as the “primary caretaker” of the child is an important factor and may result in assigning primary custody to that parent.

Question 57

The best interest of the child is determined by examination of all relevant factors, including the following:

Answer 57

(1) The wishes of the child’s parent or parents as to custody;
(2) the wishes of the child as to custodian
(3) the interaction and inter-relationship of the child with parent or parents, siblings, and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to home, school, and
community and

(5) the mental and physical health of all individuals involved.

NOTE: The desires of a child of sufficient age and understanding are considered, but are not controlling

Question 58

There are two aspects to custody: the right to?

Answer 58

(1) the right to physical custody and
(2) legal custody: care, custody and control: the right to make important decisions relating to the child, such as those concerning health, religion, and education.

Question 59

Joint custody generally refers to:

Answer 59

Shared physical custody (both parents have parenting time) and/or shared decision-making power (also called legal custody).

Sharing either or both aspects qualifies as “joint” custody.

Question 60

What is a typical joint custody structure?

Answer 60

One parent has primary physical custody, the other has significant periods of physical custody, and both parents share decision-making power.

Question 61

The fact that a parent was guilty of misconduct in connection with the divorce action will be relevant only insofar as the parent’s

Answer 61

moral fitness affects the child’s welfare.

NOTE: This rule applies even to a parent who has engaged in domestic violence.

Question 62

friendly parent

Answer 62

Some courts will consider whether a parent is willing to cooperate and facilitate the child’s relationship with the other parent.

Question 63

The non-custodial parent will generally be granted: reasonable visitation rights, unless the court finds that

Answer 63

visitation is detrimental to the best interests of the child.

Question 64

For purposes of visitation rights for third partys courts give significant deference to?

Answer 64

Significant deference must be given to a legal parent’s wishes and objections to visitation.

Question 65

Modifications of child support orders may be made only when: there is a showing of a

Answer 65

substantial and continuing change in circumstances making the prior order unreasonable.

NOTE: Court will look for changes in good and bad faith.

Question 66

Federal law prohibits a court from retroactively modifying a child support obligation. Under state law, courts will not allow a modification of the obligation of child support payments in money owed unless

Answer 66

the hardship is severe.

Question 67

Child custody: Change of Circumstances Requirement

Answer 67

The prevailing view is that a court may modify a custody order: upon proof of a material and substantial change in circumstances such that a change in custody will be conducive to the best interests of the child.

(2) Most states require that the change in circumstances be unforeseen.

(3) Even if there is a substantial change in circumstances, a court may not modify a custody order unless:
the change will serve the child’s best interest.

Question 68

Most states disfavor, either by statute or case law, modification when sought shortly after a custody decree has been entered.
Under the UMDA, if a modification petition is filed within two years of the original decree, a modification hearing is only authorized if the evidence suggests?

Some states follow this rule, while some states impose a waiting period of _____months or a ______ before a parent may bring a request for modification.

Answer 68

the evidence suggests there is reason to believe that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.

6 months or a year

status quo or present existing circumstances is favored

Question 69

The burden of proving change in circumstances as well as the child’s best interest is upon the party

Answer 69

seeking modification of the custody order.

Question 70

For purposes of relocation, the court balances?

Varying decisions by courts?

Answer 70

Many courts balance: The impact on visitation by the noncustodial parent against the benefits of the move to both the children and the custodial parent.
The overall trend is toward leniency for the wishes and needs of the parent with whom the child has been primarily living.

Some states are favorably disposed to allowing the custodial parent to relocate with the child.
Others will permit the custodial parent to relocate unless the evidence shows that the move will be detrimental to the child.

Question 71

Once a state has issued a child support order consistent with the jurisdiction requirements of the UIFSA, that state’s court has continuing, exclusive jurisdiction over the order so long as:

Answer 71

(a) the child or any party still resides in the issuing state; and
(b) all of the parties do not consent to change jurisdiction to a new state.

Question 72

The state with continuing exclusive jurisdiction over the order is the only state that can modify the order, unless

Answer 72

continuing exclusive jurisdiction is lost.

Question 73

(3) If the issuing state enters an order requiring a person residing in another state to pay child support, what can the court do to ensure that the order is enforced?

Answer 73

the issuing state can register the support order in the other state, and then the laws of the other state can be used to enforce payment of the order. The other state cannot modify the order, but can use its laws to enforce the order.

Question 74

If presented with a child support modification issue involving more than one state: what are the steps in the analysis to resolve the issue?

Answer 74

(1) The first step is to: determine which court issued the original support order.
(2) If all the parties now reside in a different state: the issuing court no longer has continuing, exclusive jurisdiction unless the parties retain it by consent.
(3) If not, the next step is to: determine which state has jurisdiction to modify the court order.
(4) If the parties and the child all reside in the same state: that state has continuing, exclusive jurisdiction to modify the order.
(5) Otherwise, the party seeking modification must register the order: in the state with jurisdiction over the respondent (i.e.,generally where the respondent resides), and seek modification and enforcement there.

Question 75

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 75

The UCCJEA permits a state to adjudicate matters related to children without having personal jurisdiction over the respondent spouse.
The UCCJEA attempts to avoid relitigation of custody decisions of other states, facilitate the enforcement of foreign custody decisions, and deter abductions of children undertaken to obtain custody awards.

The UCCJEA has been adopted in some form by nearly all states.

Question 76

Under the UCCJEA, a State court can adjudicate over matters impacting the child if it has jurisdiction over the child.
b. There are four ways in which a State court can establish its jurisdiction over the child; the first mentioned below is prioritized over the other three options.

Answer 76

(1) Whether State X the ‘home state’?
(a) Test: Has the child lived in State X since birth or at least lived in State X for the last 6 months?
(b) If Yes State X is the home state and has jurisdiction.

(2) If NOT and no other state is the ‘home state,’ then does State X have significant connections to the child?
(a) Considerations include whether the child has lived in State X for a long time and whether the child has many relatives in State X.
(b) If a court determines State X has such significant connections, then a State X court has jurisdiction over the child.

(3) If no state qualifies as a ‘home state’ and State X lacks significant connections to the child, is State X nevertheless the most appropriate forum for this matter? If YES, State X has jurisdiction over the child.

(4) Finally, is State X the default jurisdiction?
(a) If no other state is the ‘home state’ and no other state even wants jurisdiction over the matter, then by default State X will have jurisdiction over the child.

Question 77

Once a state has made a valid child-custody determination under the UCCJEA, that state has exclusive jurisdiction over the determination.
b. Such jurisdiction continues until:

Answer 77

(1) a court of the state determines that neither the child nor the child and one parent have a significant connection with the state, and substantial evidence is no longer available in the state regarding the child’s welfare; or
(2) a court determines the child, the child’s parents, and any person acting as a parent moved out of the state.

Question 78

Two Reasons a State Can Decline to Exercise Jurisdiction

Answer 78

a. State is an inconvenient forum.
(1) Family would be better served elsewhere.
(2) Length of time child resided outside of the State.
(3) Location and nature of evidence.
(4) Another state court is more familiar with the case.

b. Party engaged in unjustifiable conduct in order to secure jurisdiction in the State.

Question 79

In a proceeding to establish, enforce, or modify a support order, a State X court may exercise personal jurisdiction over a nonresident if:

Answer 79

(a) The UIFSA governs jurisdictional issues where more than one state is involved in a family support action.
(b) the person submits to jurisdiction by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(c) the person resided with the child in State X;
(d) the person resided in the state and provided prenatal expenses or support for the child;
(e) the child resides in the state as a result of the acts or directives of the person;
(f) the person engaged in sexual intercourse in State X, and the child may have been conceived by that act;
(g) the individual asserted paternity by filing with the DHS Paternity Registry; or
(h) there is any other basis consistent with the federal and state constitutions for the exercise of personal jurisdiction.

Question 80

Uniform Interstate Family Support Act

Answer 80

UIFSA addresses issues of interstate enforcement of spousal maintenance (alimony) and child support orders. The Uniform Interstate Family Support Act (“UIFSA”) has been adopted in all 50 states.
a. the person is personally served in State X