Family Law > IV. Legal Separation and Dissolution of Marriage/Divorce

Question 1

Assuming a marriage is valid, what are the parties 2 options if they want to separate?

Answer 1

Legal separation or Dissolution/divorce

Question 2

In most states, a legal separation decree can be converted to a ___________ within a specified period of time.

Answer 2

divorce

Question 3

Definition of legal separation

Answer 3

A legal proceeding that determines property rights and the custody of children

Question 4

Does a legal separation terminate the marriage?

Answer 4

No.

Question 5

Legal separation can define the permanent status of the relationship of the parties or can be a temporary situation. When is it a temporary situation?

Answer 5

When the parties eventually obtain a divorce.

Question 6

What are the grounds for divorce?

Answer 6

Majority: “No-fault” grounds: (i) the marriage is irretrievably broken or (i) there are irreconcilable differences.

Minority: “Modified no-fault states.” (i) irretrievably broken, (ii) but also fault-based grounds for contested divorces only.

Question 7

In a “modified no-fault state,” when will a dissolution be granted on the grounds of marriage being irretrievably broken?

Answer 7

If both parties agree that the marriage is irretrievably broken.

Question 8

If one of the parties denies that the marriage is irretrievably broken, in a modified no-fault state, the petitioner (the person wanting the divorce) must show that the marriage is _______________ by proving one of generally five fault grounds.

Answer 8

irretrievably broken

Question 9

What are generally the 5 fault grounds for a contested divorce in a modified no-fault state?

Answer 9

1. Adultery
2. Unreasonable behavior (the respondent – person challenging divorce– has acted in a way that the petitioner can no longer be reasonably expected to live with him or her, e.g., cruelty)
3. Abandonment for a set period of time (usually 6 months)
4. Voluntary separation for a period of time (this is a mutually agreed upon separation usually for 1 year); OR
5. Involuntary separation (non consensual) for a longer period of time (usually more than 2 years)

NOTE: involuntary separation being a fault ground means that, after 2 years, even in a fault-based system, a divorce can be granted without proving actual fault.

Question 10

In a fault-based system, when trying to show irretrievably broken marriage, who’s behavior must the petitioner use to show a fault ground?

Answer 10

The fault must relate to the behavior of the respondent, not the petitioner. Can’t use your own fault in petition for divorce.

Question 11

A court must have ____________ jurisdiction in order to grant a divorce.

Answer 11

subject matter jurisdiction

Question 12

A court gets subject matter jurisdiction over the divorce or status of the marriage itself if:

Answer 12

1. There is a valid marriage; and

2. The petitioner has at least a minimum number of days of residency in that jurisdiction (e.g. 90 days, 1 year)

Question 13

A court can get personal jurisdiction over the parties in what 2 ways?

Answer 13

1. In Rem Jurisdiction

2. In Personam Jurisdiction

Question 14

By statute, the court has ________ jurisdiction over _______.

Answer 14

in rem jurisdiction over the status of marriage

Question 15

A court needs in personam jurisdiction to enter orders regarding:

Answer 15

1. child support
2. maintenance; and
3. property located outside the state

Question 16

In personam jurisdiction can be obtained by

Answer 16

1. personal service in the state;
2. personal service out of the state on a state resident; or
3. using the long-arm statute if the individual is no longer a resident of the state

NOTE: The long-arm statute requires some type of connection.

Question 17

The connection under the long-arm statute for divorce in most states is ________.

Answer 17

that the parties lived there while they were married AND one of the parties still resides there

Question 18

Most states do not require that the respondent be personally served under the long-arm statute for the court to have in personam jurisdiction. But for those states that do require personal service in all cases, including under the long-arm, _______.

Answer 18

service by publication or service by certified or registered mail will not give the court in personal jurisdiction

Question 19

A divorce is entitled to full faith and credit. To what extent will courts be required (i.e. what is the jurisdictional requirement) for recognizing divorces granted in other states?

Answer 19

The jurisdictional requirement for full faith and credit purposes for granting divorce is not just residency, but domicile, which is (i) residency plus (ii) the intent to remain.

So a divorce is binding both parties, even if that court has no PJ/domicile over one of the spouses.

Question 20

What is a divisible divorce?

Answer 20

In a divisible divorce, different courts are needed to do different things. When the divorce is valid, but that court does not have PJ over property located in another state, or over a spouse with respect to maintenance or child support (i.e. making them pay money).

Question 21

What are the 3 kinds of temporary orders and what is their purpose?

Answer 21

Child Support/Alimony, Child Custody, and Temporary Restraining Orders.

Generally, temporary orders can be entered into to maintain the status quo.

Question 22

Typically temporary restraining orders are not related to physical restraint (that would be an Adult Order of Protection). Instead what are TROs usually related to?

Answer 22

dissipation of assets. E.g., bank accounts or disposition of marital property

Question 23

When are temporary orders terminated? Even after divorce is granted, what is still subject to collection?

Answer 23

either (i) upon dismissal; or (ii) the entry of the final decree

Attorneys fees and costs that are past due are still subject to collection even after the divorce is granted.

Question 24

What is the Community Property state approach in dividing property as upon divorce?

Answer 24

Community Property states: All property acquired during the marriage is deemed owned one-half by each spouse. All property owned prior to marriage or acquired by gift or bequest is deemed separate property.

Question 25

What is the All Property state approach in dividing property as upon divorce?

Answer 25

“Kitchen sink” jurisdictions: The court has the authority to divide all the property owned by either spouse at the time of divorce regardless of its source.

Question 26

What is the Equitable Distribution state approach in dividing property as upon divorce?

Answer 26

Principle: Marriage is an economic partnership. The court must divide marital property (like it would partnership assets). The court may not divide separate property.

NOTE: In an Equitable Distribution state, once property is determined to be the separate property of one of the spouses, the spouse keeps that property and the court has no authority to give separate property of one spouse to the other spouse at divorce.

Question 27

In an equitable distribution state, property acquired before the marriage is ___________ property, except for property __________, which may be considered ________ property.

Answer 27

In an equitable distribution state, property acquired before the marriage is separate property (not a partnership asset), except for property acquired in contemplation of marriage, which may be considered marital property.

Question 28

In an equitable distribution state, property acquired after the marriage is presumed to be marital and the person who is challenging the marital classification has the burden of proof and must show it was acquired in which of the following ways?

Answer 28

Person challenging a presumption of after-marriage property as marital property can rebut and show it is separate property by proving the property was acquired:

(a) as a gift or inheritance to one of the spouses
(b) in exchange for separate property (tracing required)
(c) pursuant to a valid agreement that excluded it from being marital property (e.g. by a pre-numptual agreement)
(d) because it increased in value due to economic factors (i.e. a passive increase) - NOT due to marital contributions (e.g. the couple paying off a mortgage on a house one of them owned prior to marriage)
(e) SPECIAL “SOURCE OF FUNDS RULE” for long-term acquisitions of property taking place both before and during marriage

Question 29

What is the SPECIAL “SOURCE OF FUNDS RULE” used in a majority of states for long-term acquisitions of property taking place both before and during marriage by marital contributions (funds or efforts)?

Answer 29

Source of Funds Rule: To the extent a single piece of property is acquired with marital funds or marital efforts; it is treated as marital property. To the extent it is acquired before marriage or with separate funds, it is considered separate property.

Question 30

Under the Source of Funds Rule, what are the 2 steps you take to classify property at dissolution?

Answer 30

1) Determine the proportion of separate versus marital funds that were used to acquire the equity in the property.
2) Multiply this percentage times the equity (equity= FMV at time of dissolution - any outstanding mortgage if real estate)

Question 31

H and W purchase a car for $20k during their marriage. They pay for the car with $10k that husband received as inheritance from his aunt’s estate and $10k from funds earned by husband during marriage. At the time of dissolution the car is valued at $10k. How should the car be classified?

Answer 31

1) Determine the proportion of separate versus marital funds that were used to acquire the equity in the property.
- 50% ($10k) came from separate funds (inheritance money)
- 50% ($10k) came from marital funds (earnings)

2) Multiply this percentage times the equity (equity= FMV at time of dissolution - any outstanding mortgage if real estate)
- Separate: 50% * $10k (FMV at dissolution) = $5,000
- Marital: 50% * 10k = $5,000

So the car’s value is classified as $5,000 in separate and $5,000 in marital property.

Question 32

What is transmutation?

Answer 32

When property changes its nature or character from separate property to marital and vice versa.

Question 33

What are the 2 most common methods by which property can be transmutated?

Answer 33

Retitling and Commingling

Question 34

When is property transmutated by retitling?

Answer 34

When property that was one spouse’s is later placed in both the husband and wife’s name. Strong presumption that it’s marital property.

Question 35

Commingling can transmutate property. Commingling is simply the mixing of marital and separate funds. There mere action of commingling, however, is not enough to change the entire character of the property. With commingling, the court is going to require a showing of _________.

Answer 35

intent to make it marital (that is greater than the intent you have to show for retitling).

Question 36

SPECIAL PROPERTY IDENTIFICATION CONSIDERATIONS: What types of property require special treatment in order to identify it as marital or separate?

Answer 36

(a) Pensions (b) Educational Degrees (c) Goodwill (d) Personal Injury Awards (e) Marital Debts (f) Omitted Property (g) Social Security Benefits and Other Exempted Property.

Question 37

Do the majority of equitable distribution states require an equal or a just division of marital property?

Answer 37

a “Just” division

Question 38

What must you know before considering how to divide or distribute marital property?

Answer 38

Properly identify the property to be divided as marital or separate.

Question 39

In dividing property in most equitable distribution states, the court will look at a number of factors to determine how to divide the marital property. Name the 5 factors. What is not considered?

Answer 39

1. economic circumstances
   - Which of the spouses has more need? (dependent on their respective earning abilities after the marriage)
2. contribution, including homemaker services
   - Who made contributions to the acquisition of marital property?
3. value of each party’s separate property
4. duration of the marriage
   - the longer the marriage the closer to 50/50
5. Economic misconduct
   - e.g. gambling away marital property
   * Misconduct or fault is not considered (unless economic misconduct)

Question 40

As of when do states valuate marital property?

Answer 40

States vary:

a. at time of separation
b. at time of filing
c. at time of trial
d. at time of final order

Question 41

Maintenance or alimony is ________ support and is based primarily on ______.

Answer 41

spousal support based primarily on need.

Question 42

Maintenance or alimony is support paid by one spouse to the other during a _______ or after _________.

Answer 42

legal separation or after divorce

Question 43

Generally in order to obtain maintenance, the individual requesting maintenance must establish that he or she ______.

Answer 43

is unable to meet reasonable needs through appropriate employment.

Question 44

The 4 factors that the court is going to consider in awarding maintenance are:

Answer 44

1. financial resources of each party (including ability of the other spouse to pay)
2. employability
3. standard of living (generally used ONLY in long-term marriages)
4. duration of marriage (to show that one is actually more dependent than the other)

Question 45

What are the 4 types of maintenance a court can order?

Answer 45

1. Permanent Maintenance
2. Durational Maintenance
3. Lump Sum Maintenance
4. Reimbursement Spousal Support

Question 46

What is permanent maintenance?

Answer 46

an open-ended award that is modifiable but it does not end until there is a court order that ends it (e.g. H pays W $300/month)

Question 47

What is durational maintenance?

Answer 47

has an ending date and it is modifiable only during period that it is being paid.

Question 48

What is lump sum maintenance?

Answer 48

Can be paid at once or in installments and is generally not modifiable.

Question 49

What is reimbursement spousal support?

Answer 49

This type of award compensates a spouse who contributed to the other spouse’s acquisition of a professional degree or license. Not modifiable.

MINORITY of states.
NOT based on need.

Question 50

Termination of maintenance generally occurs in what 3 ways?

Answer 50

1. the death of either party
2. the remarraige of the person receiving the maintenance
   3 by agreement of the parties (either in prenuptual or settlement at time of divorce)

Question 51

If maintenance can be modified (i.e. if it’s permanent or durational maintenance), it is modified because the original order is now unreasonable because of what?

Answer 51

substantial and continuing changed circumstances.

Question 52

Shortly after a husband is ordered to pay maintenance in the sum of $300 per month, he has a heart attack and is unable to return to work for several months. Because he is without a salary, he stops paying maintenance. If the wife seeks enforcement of the order, is the husband liable for the past due maintenance?

Answer 52

Yes, the alimony payor cannot unilaterally stop paying maintenance. Also, maintenance is not retroactively modifiable.

Husband should have filed a motion for modification of maintenance.

Question 53

Is being hospitalized and getting only 1/2 salary for 2 months before being able to go back to work sufficient grounds for a substantial and continuing change in circumstances in a motion for modification of maintenance?

Answer 53

Probably not. The change is probably substantial but probably not “continuing” – It can’t temporary.

Question 54

What are the 3 situations in which petitions for modifications are usually filed?

Answer 54

1. an increase in payor’s income
   - this alone will NOT be the basis of a modification in maintenance
2. an increase in payee’s income
   - This WILL justify a reduction to the extent that maintenance is no longer needed to meet her reasonable needs.
3. decrease in either’s income
   - WILL justify a modification if decrease is involuntary (lay off, illness)
   - Will NOT justify reduction if voluntary

Question 55

What is the general goal of the person receiving support in maintenance?

Answer 55

A person receiving maintenance has an ongoing obligation to become self-supporting

Thus, payee’s failure to seek employment and become self-supporting can form the basis for modification