Divorce Flashcards
(34 cards)
What does a decree of absolute divorce do?
Terminates the marriage relationship
What is a ‘No-Fault’ divorce?
A divorce without regard to marital fault
What is required for a bilateral no-fault divorce?
Both spouses agree that the marriage is irretrievably broken
What are the time requirements for living apart in a no-fault divorce?
Ranges from 90 days to 18 months. The spouses have been living apart for a specified and continuous period of time. The period is often shorter if both parties agree to divorce (bilateral) and longer for a unilateral no-fault divorce and the parties are still married during that time.
What is the result of both spouses agreeing they are incompatible and can no longer be married?
Bilateral no-fault divorce
What is the definition of adultery in the context of divorce?
Filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required.
What does willful desertion or abandonment require?
An unjustified departure from the marital home for a specified period with no intent to return
What constitutes extreme grounds for divorce?
Extreme physical or mental cruelty
Additional fault ground?
Habitual drunkenness and voluntary drug addiction commencing after the marriage
What ground for divorce is based on mental health?
Insanity
Full faith and credit to divorce decrees
Full faith and credit to divorce decrees of the courts of a sister state if the sister state had proper jurisdiction and the decree is valid in the sister state.
Jurisdiction
Is satisfied if one of the spouses is domiciled in the state granting the divorce.
Rebuttable presumption
That the stage granting the divorce is the bona fide domicile of the plaintiff
Ex parte divorce decree
Under the doctrine of divisible divorce, an ex parte divorce can generally serve to grant only the divorce
Marital property
Ex parte divorce decree has no effect on disputes over marital property unless the property is located in the rendering state otherwise such disputes can be resolved only by a court having personal jurisdiction over both of the parties.
PJ
Look at minimum contacts - has spouse submitted themselves to the jurisdiction?
Uniform Children Custody Jurisdiction and Enforcement Act, a state may exercise jurisdiction if:
The home state of the child at the time the proceedings began or within six months of the proceedings and a parent stop resides in the jurisdiction
Childs home state is:
The state in which the child lived with a parent, or person acting as a parent, for at least 6 consecutive months before the commencement of the proceeding.
The federal Parental Kidnapping Prevention Act requires states to enforce a custody order of another state:
But only if the state entering the custody decree had home state jurisdiction.
The jurisdictional standards are substantially similar to those in the UCCJEA.
Factors in custody award
The standard applied in awarding custody is best interest of the child. The factors considered in making this determination include
1. The wishes of the parents
2. The wishes of the child
3. The interrelationship of the child with his parents, siblings and others
4. The child’s adjustment to home, school and community
5. The mental and physical health of all individuals involvrd
Weight of childs preference
Under 12 years old, little weight is given to preference and over 12 years old, the preference of the child is given great weight.
Most courts:
Grant custody to the primary caregiver
Siblings
Many courts feel it is best not to split up siblings.
To establish jurisdiction over a divorce action:
One of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum durational residency requirement before the action can be filed.
The plaintiffs residence alone may be the basis for a state’s granting a divorce regardless of whether there is personal jurisdiction over the defendant.
