Final—Marriage Dissolution & Spousal Support Flashcards
Personal Jurisdiction exists where
-Respondent served with process while physically present in the state (regardless of length of stay)
-Respondent waives personal jurisdiction by answering without raising defense
-Respondent consents to jurisdiction (voluntary appearance)
-Respondent has sufficient minimum contacts to allow personal jurisdiction under long-arm statute
Divorce is in rem
-Even if there is no personal jurisdiction over the respondent, the court may grant divorce.
-Court cannot enter orders regarding property and money when they don’t have jurisdiction
Divisible Divorce Doctrine
If no personal jurisdiction over the respondent, the court may not order child support or divide property located outside of the state
Domestic Relations Exception to Diversity Jurisdiction
Federal courts will not decide divorce or alimony cases because states are better suited to adjudicating domestic issues (judicial economy and expertise)
Full Faith and Credit
Requires that a state give full faith and credit to decree of other states that had jurisdiction
Comity Doctrine
Recognition of foreign divorces—Courts may refuse to apply doctrine if recognizing a foreign divorce would violate state’s public policy
Fault-Based Grounds for Divorce: Adultery
Many states define as the voluntary sexual intercourse of a married person with someone other than his/her spouse
Fault-Based Grounds for Divorce: Cruelty
(1) A course of conduct of cruel behavior
(2) that creates an adverse effect
-Several courts maintain that one incident is not enough unless the single incident is particularly brutal
Fault-Based Grounds for Divorce: Abandonment/Desertion
(1) Cessation of cohabitation
(2) without cause or consent
(3) with intent to abandon
(4) continuing for a statutory period (most states require at least 1 year)
*Separation and intent do not need to occur contemporaneously (separation without intent is not enough)
Constructive Desertion
Intolerable conduct by one spouse toward an innocent spouse that causes innocent spouse to leave the marital abode (no need for intent)
Fault Defenses: Recrimination
The plaintiff committed the same acts that the defendant is accused of committing
Fault Defenses: Condonation
A spouse who has condoned marital conduct is barred from using that misconduct as grounds for divorce
Fault Defenses: Connivance
Express or implied consent by the plaintiff to the misconduct alleged
Fault Defenses: Collusion
An agreement between husband and wife to
(1) commit a marital offense in order to obtain a divorce,
(2) introduce false evidence of transgression not actually committed, or
(3) suppress a valid offense
Fault Defenses: Insanity
Sometimes used as a defense or a ground for divorce
No-Fault Grounds: Insupportability/Irreconcilable Differences/Incompatibility
-In general, discord or conflict that destroys the legitimate ends of marriage, and there is no reasonable expectation of reconciliation
-Some statutes are based on irreconcilable differences between parties (CA approach)
-Some statutes are based on irretrievably broken marriage, which may be established by a 6-month separation or serious marital discord (UMDA)
No-Fault Grounds: Living Separate and Apart
Statutes usually require separation for 6 months to 2 years—may require intent to dissolve marriage
Boddie v. Connecticut
Supreme Court held it violated DP to require welfare recipients to pay filing fees and court costs for divorce if that would preclude them from filing divorce
Types of Spousal Support
-Permanent: traditional, indefinite date
-Limited Duration: until designated date
-Alimony Pendente Lite: during the litigation
-Rehabilitative Alimony: support for limited time until spouse becomes self-sufficient
-Reimbursement Alimony: repays ex-spouse who made financial contributions to marriage for other spouse’s training or education
-Lump Sum Alimony
ALI Loss Compensation Approach
presumption for
-Alimony is compensatory for economic loss
-To compensate for losses of dependent spouse during marriage
-Presumption of entitlement to compensatory payments
—loss of earning capacity resulting from primary responsibility of childcare, and
—loss of the premarital standard of living (spouse’s career advancement)
UMDA
presumption against
-Spousal support is a disfavored remedy because rationales of fault and need are outmoded. Principles of self-sufficiency and the idea that property settlement equalizes need
-Available in limited circumstances and short duration:
—spouse is unable to provide self-support
—spouse lacks sufficient property to provide for his/her reasonable needs
—spouse is custodian of a child whose circumstances require that he/she not seek outside employment
Spousal Support General Factors
-Length of marriage
-Financial needs and resources of husband and wife (including education and division of property)
-Contributions during marriage (and economic fault)
Statutory Dependent Factors for Spousal Support
-Standard of living during marriage
-Marital misconduct
-Reimbursement of other’s education or training
-Whether obligee is capable of self-support and how long it will take to be self-sufficient
Modification of Support Awards: General Rule
Substantial or material change in circumstances
(property awards are generally final)
Modification of Support Awards: UMDA
Change in circumstances that makes original terms unconscionable (minority view)
Automatic Termination: UMDA
Spousal support terminates upon:
-death of either party
-remarriage of the payee-spouse
-absent contrary agreement
Cohabitation
-Many states say spousal support can be reduced or terminated if payee cohabits
-Some states also require showing that recipient has economic benefit due to cohabitation
-automatic termination (UMDA)
Fault & Spousal Support
A slim majority of states take fault into account when determining spousal support awards, but they limit the fault to economic fault
-Egregious fault may be considered
Subject Matter Jurisdiction
The power of the court to preside over the case
-Met by durational residency requirements, and
-domiciliary requirements
(vary from state to state)
Migratory Divorce
When only one spouse is domiciled in divorce-granting state
