Grounds for divorce

Question 1

What are the grounds for fault based divorce?

Reasons for wanting a fault-based divorce:

Answer 1

1. Adultery
2. cruelty
3. desertion

i. Distribution is based on percentage of fault in the relationship

Question 2

what are the elements for Adultery

Answer 2

inclination to commit the offense
and opportunity to do so

Question 3

Proof for adultery

Answer 3

1.inclination
2.opportuinty

preponderance of evidence
-evidence can be circumstantial or direct
-sexual intimacy required (sexiual intercourse is not always required)

Question 4

what are the elements of cruelty

Answer 4

-course of conduct habitual cruel and inhumane treatment

-adverse health effect mental or physical effect

-required corroboration from witness
(mere unkindness, rudeness, or incapability is insufficient to prove cruelty for a fault based divorce)

Question 5

types of desertion

Answer 5

1.desertion
2.constructive desertion

Question 6

elements of desertion and constructive desertion

Answer 6

desertion:
1.Cessation of cohabitation

2.Without cause or consent (no justification)

3.With intent to abandon

4.For a statutory period

constructive desertion:
1.intolerable conduct by one spouse

2.That causes the innocent spouse to leave the home

Question 7

what are the defenses for fault based divorce?

Answer 7

i. Recrimination
ii. Condonation
iii. Connivance
iv. Collusion
v. Other defenses

Question 8

what is recrimination?

Answer 8

i.If each party proves a fault-based ground, neither is entitled to divorce on fault-based grounds

1.There MUST be an innocent party

ii.Defense of recrimination precludes the granting of a divorce based on fault grounds

causation isn’t an element of defense (it doesn’t matter if his misconduct occurred before or after beginning of divorce proceeding)
defense is equitable doctrine and he is not an innocent spouse

Question 9

what is condonation

Answer 9

Condonation is the forgiveness of a marital wrong on the part of the wronged party.

Condonation may be expressed or implied.

The mere resumption of residence does not constitute a condonation of past marital sins and does not act as a bar to a divorce being granted.

A spouse cannot condone behavior when they do not know the full extent of the actions

Question 10

what is connivance

Answer 10

paricipation in, or consent to, defendants wrongful conduct

Question 11

what is collusion

Answer 11

spousal conspiracy to perpetrate fraud by trumping up grounds for divorce

Question 12

no fault grounds for divorce

Answer 12

living separate & apart

incompatibility

irreconcilable differences- CA

irretrievable breakdown- UMDA

Question 13

grounds for divorce in florida

Answer 13

florida is a no fault only, 2 options:
1.Irretrievably broken
2.Or mental incapacity of one of the parties (3 year period and certain types of proof required)

Question 14

2 divorce models (california)

Answer 14

1.Irreconcilable differences that have caused the breakdown of the marriage
a.Serious acts of misconduct are inadmissible (doesn’t matter)

ii.2) UMDA (Uniform Marriage Divorce Act
1.Legal separation for 180 days OR
2.Serious marital discord that adversely affects the attitude of one or both parties

Question 15

living separate and apart

Answer 15

1.Statutory variations:
a.Liberal versus strict approach
b.Different statutory periods

Where the parties continue to perform the same marital and household functions after the supposed separation, they are not considered to be living separately with respect to their marriage.

Question 16

Does a law that requires the payment of court costs and fees before instituting divorce proceedings in state court violate the Due Process Clause of the Fourteenth Amendment?

Answer 16

yes. due process prohibits a state from denying, solely because of an inability to pay, access to its courts to individuals who seek judicial dissolution of their marriage.