Divorce

Question 1

Jurisdiction in divorce cases

Answer 1

Only one of the parties needs to be domiciled in the jurisdiction.

But to determine financial issues, the court must have PJ over the defendant. There’s a limited exception for marital property located within the state.

Question 2

Grounds for a no-fault divorce

Answer 2

1. Irreconcilable differences, and
2. Living apart for a continuous period of time

The fact that one spouse thinks the marriage should be saved is generally insufficient to prevent divorce.

Question 3

Grounds for fault divorce

Answer 3

1. Adultery
2. Willful desertion
3. Cruelty
4. Drug addiction or habitual drunkenness
5. Insanity

Question 4

Defense to no-fault divorce

Answer 4

Reconciliation, or that one of the factors doesn’t exist.

Question 5

Defenses to fault-based divorce

Answer 5

1. Collusion
2. Connivance (swingers)
3. Condonation (forgiveness)
4. Recrimination (unclean hands)

Question 6

What is the equitable division of marital property?

Answer 6

Each spouse takes their separate property, and the court only divides the property acquired during the marriage.

Question 7

What is separate property?

Answer 7

1. Property owned before marriage
2. Property acquired by gift or inheritance
3. Property acquired in exchange for separate property
4. Income/appreciation of separate property

Question 8

What is marital property?

Answer 8

All other property acquired during the marriage, including:

1. Earnings and bonuses (and property acquired by those)
2. Employment benefits/pensions/stock options
3. Lost wages

Question 9

What is commingling?

Answer 9

Separate property is inextricably intertwined with marital property to the extent that it can no longer be traced.

Question 10

What is transmutation?

Answer 10

Separate property that is treated in a way that evidences an intention for the property to be marital property.

Question 11

What happens to separate property that is improved by the use of marital funds or the effort of a spouse?

Answer 11

Property remains separate, but most courts will grant reimbursement for added value.

Question 12

How do courts treat property acquired before marriage but paid for after?

Answer 12

Majority: apportioned between separate and marital estate based on where the funds came from

Question 13

How is a professional license or degree treated?

Answer 13

Not marital property, but some jus use alimony to compensate the supporting spouse.

Question 14

What factors do courts consider in equitable division of property?

Answer 14

• Age/education/background/earning capabilities of both
• Duration of marriage
• Standard of living
• Present incomes
• Source of money used to purchase property
• Health
• Assets/debts/liabilities
• Needs
• Child custody provisions
• Alimony amount
• Opportunity to acquire future income/assets
• Contribution to the acquisition of assets
• Contribution as a homemaker
• Economic fault

**Marital fault is not considered!

Question 15

What are the types of alimony?

Answer 15

1. Permanent periodic spousal support
2. Lump sum
3. Rehabilitative spousal support
4. Reimbursement spousal support

Question 16

Permanent periodic spousal support

Answer 16

Paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining

Terminates upon the death of either or the remarriage of the recipient.

Modifiable upon substantial change in circumstances.

Question 17

Lump sum

Answer 17

Payable either all at once or via a series of payments.

Cannot be modified.

Survives the death of either spouse.

Question 18

Rehabilitative spousal support

Answer 18

Periodic payments for a limited time to enable a spouse to gain skills to become self-supporting.

Modifiable upon substantial change in circumstances.

Terminates upon the death of either or remarriage of the recipient.

Question 19

Reimbursement spousal support

Answer 19

Awarded to a spouse who supported the other spouse while the latter obtained a professional license/degree.

Not modifiable.

Survives the death of either spouse.

Question 20

Factors to be considered when awarding alimony

Answer 20

• Standard of living
• Duration of the marriage
• Age/physical/emotional condition of each
• Financial resources
• Contribution to the marriage
• Time needed for the party seeking support to get training for employment
• Ability of the payor to meet their own needs while paying support
• Needs of the claimant
• Marital fault

Question 21

Is a self-induced reduction in income by the payor sufficient to have alimony reduced?

Answer 21

No.

Question 22

What is a separation agreement?

Answer 22

An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights.

Question 23

What are the requirements for an enforceable separation agreement?

Answer 23

1. Voluntary
2. Full and fair disclosure by both parties, and
3. Consideration (mutual promises within the agreement).

**Alimony/property division can be waived, but court not bound by provisions regarding children.

Question 24

What is the purpose of spousal support?

Answer 24

To ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship.