Divorce Flashcards
(24 cards)
What is the procedure for obtaining 102 divorce?
File Petition (alleging jurisdiction and venue)
Wait Time
File rule to show cause
*abandonment after 2 years if rule to show cause not filed after petition
What is article 102 divorce?
No fault divorce. Filed before separation occurs. Must show 180 days apart if no children (unless court finds physical or sexual abuse, or injunction for protection), otherwise 365 days.
What is a 103(1) divorce?
Separation prior to filing. Same time periods apply as 102. Separation must be voluntary by one spouse. Answer is required within 15 days after service of petition, but can be waived. Default on day 16, confirmation 3 business days later. No affidavits required.
When should you file a 103(2) divorce?
When there has been adultery. Proof must be specific, intercourse not required. Divorce is immediate, no waiting. Same answer and default as 103(1)
When should you file a 103(3) divorce?
When there is a felony conviction and sentenced to death or hard labor. Same requirements as 103(1) and 103(2) divorces.
Name the defenses to divorce.
(P.R.M)
Procedural (for 102 divorce, didn’t follow steps)
Reconciliation- resume life together with mutual intent, sex doesn’t show intent, forgiveness or condonation after knowledge of offense may be reconciliation
Mental condition of at fault spouse may be defense
Is fault considered for support payments before the judgment of divorce is rendered?
Fault is irrelevant in an award for interim support and the purpose of interim support is to maintain the status quo pending the divorce or until a determination of final support is final. A court may award a spouse an interim support allowance based on needs of party, ability of other to pay, and standard of living they enjoyed during marriage.
True or False:
Interim spousal support is based on the needs of the party, lack of fault, ability of other to pay, and standard of living of parties during marriage.
False. Fault is not a consideration in awarding interim spousal support.
True or False:
The obligation to pay interim spousal support must terminate no later than 180 days from the date of divorce.
False. A claimant can show good cause, if shown the court can extend the award of support past that time.
True or False:
The obligation to pay interim spousal support may extend beyond 180 days from rendition of judgment of divorce IF party is able to show good cause.
True
What factors does a court consider in awarding interim support?
For an award of interim spousal support, a court considers the needs of the claimant spouse, the ability of the other party to pay, and the standard of living enjoyed during marriage.
Who may interim support be awarded to?
A party in need of support
When is interim support terminated?
Support is terminated on remarriage of receiving party, death, judicial determination of cohabitation in manner of married parties
What is the amount of interim support based on?
Based on need, means to pay, standard of living enjoyed during marriage. Fault is irrelevant. Income is primary consideration. Payors assets are considered, payees do not.
Is a prenuptual agreement negating interim support okay?
No, may not have a pre-nup negating interim support.
MC:
An award of periodic spousal support:
a. shall be extinguished and terminated upon the subsequent remarriage of the obligor
b. may be extenguished by remarriage of obligor
c. shall be extinguished by remarriage of obligee
d. may be extinguished by remarriage of obligee
c. shall be extinguished by remarriage of obligee.
When may a court award final support?
Court may award if free from fault prior to filing of a proceeding to terminate the marriage, and on need and ability to pay.
What are the considerations for final support?
TAF CRIED Tax consequences Ability to pay Financial Obligations Child Custody Rehabilitative support Income of parties Earning capacity Duration of Marriage
What is viewed as fault for final support?
Adultery Conviction of Felony Intemperence or Cruelty Defamation Abandonment Attempted murder Fugitive Nonsupport Messing up a duty of marriage
What are possible defenses final support award?
Provocation Condonation Mental Illness Incapacity physical infirmity reconciliation
What is the limit on amount of final support award?
1/3 income of obligor
In a divorce action, a claim for contribution made to the education or training of a spouse:
a. prescribes in 2 years from date of filing
b. prescribes in 3 years from date of signing of judgment
c. prescribes in 4 years from date of signing of judgment
d. shall terminate on remarriage or death of either spouse
B. Prescribes in three years from date of signing of judgment or declaration of nullity.
When does contributions to earning capacity of spouse arrise?
When a spouse or former spouse has made financial contributions to other spouses training or education during marriage that increased other spouses earning power. The claimant must not have benefited from other spouses increased earning power during marriage.
When does a claim for contributions to earning capacity of spouse arise and prescribe?
Arises when divorce action is filed, prescribes 3 years after date of signign of judgment of divorce.
