the divorce process

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Class NameInstructor NameDate, Semester

Family Law for the Paralegal2nd Edition

Wilson

Chapter 5:The Divorce Process

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LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Describe how the culture of divorce has evolved over the past four decades.

List the four primary methods of altering the marital status.

Identify the basic stages of the divorce process.

5.1

5.2

5.3

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Cont.

Distinguish among the six major alternative dispute resolution methods used in the family law context.

Provide examples of jurisdictional issues that may arise in divorce cases.

Identify the most common fault and no-fault grounds for divorce.

5.4

5.5

5.6

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List defenses available to defendants in divorce actions.

Describe the role of the paralegal at each major stage of the divorce process.

5.7

5.8

Learning ObjectiveAfter this lecture, you should be able to:

5.1Describe how the culture of divorce has evolved over the past four decades.

Some of the major changes that have occurred include the following:

• A decreased emphasis on fault• An emphasis on divorce as an economic event and the

spouses as equal partners• The institution of child support guidelines• The codification of criteria to guide decisions about

custody, spousal support, and property division• The introduction of parenting plans and programs• The creation of support systems and user-friendly court

procedures for parties who want to proceed pro se• A reduction in litigation due in part to an increased use

of alternative dispute resolution (ADR) methods• A movement toward respect for autonomy and privacy

in family relationships

How Has The Culture Of Divorce Evolved Over The Past Four Decades?5.1


5.2List the four primary methods of altering the marital status.

Some of the major changes that have occurred include the following:

• A decreased emphasis on fault• An emphasis on divorce as an economic event and

the spouses as equal partners• The institution of child support guidelines• The codification of criteria to guide decisions about

custody, spousal support, and property division• The introduction of parenting plans and programs• The creation of support systems and user-friendly

court procedures for parties who want to proceed pro se

• A reduction in litigation due in part to an increased use of alternative dispute resolution (ADR) methods

• A movement toward respect for autonomy and privacy in family relationships

How Has The Culture Of Divorce Evolved Over The Past Four Decades?5.2


5.3 Identify the basic stages of the divorce process.

• Each state establishes its own procedural rules for divorce/dissolution of marriage. In some states they are the same as for civil actions in general, in others there are specific rules applicable to domestic relations practice and procedure.

• The majority of divorce actions are settled and only about 10% proceed all the way to trial.

What Are The Basic Steps In The Divorce Process?5.3

• Initial client interview is conducted• Primary issues in the case are identified (custody, property

division, grounds, etc.)• Potential for mediation is explored throughout the process• Jurisdictional issues and choice of proper venue are

identified and resolved, if necessary• Complaint is filed and plaintiff’s attorney files an

appearance• Summons and Complaint are served on the defendant• Defendant files an Answer or a Motion to Dismiss and his or

her attorney files an Appearance/Limited Appearance• Motions for temporary orders are filed and heard, if

warranted• Discovery is conducted, if warranted and feasible• Separation/Marital Agreement is negotiated/

drafted/reviewed• If all issues are settled, agreement is filed with the court

and the parties proceed to a final hearing

What are the basic steps in the divorce process? (cont.)5.3

• If not settled, prepare for and attend a Pretrial Conference

• Prepare for Trial• Trial on contested issues is held• Judgment/Decree is issued by the court• Follow-up matters completed such as

preparation of QDRO and transfer of assets• Posttrial motions or Appeal filed, if warranted• Enforcement of the Judgment is pursued

(contempt actions, if necessary)• Modifications of Judgment are sought if

necessary based on substantial changes in circumstances

What are the basic steps in the divorce process? (cont.)5.3


5.4Distinguish among the six major alternative dispute resolution methods used in the family law context.

• Direct negotiation between the parties: initially without the assistance of counsel

• Mediation: an approach to resolving differences in which a neutral third person helps the parties identify their differences, consider their options, and structure a mutually acceptable agreement, if possible

• Collaborative law: an approach to reaching agreements that stresses cooperation, joint problem solving and the avoidance of litigation

What Are The 6 Major Methods Of Resolving Differences And Reaching Agreements In The Family Law Context

Based On Court Order, Rule, Or Client Choice?5.4

• Negotiation through counsel: the traditional and most common method, this approach usually involves considerable give-and-take and a series of compromises

• Neutral case evaluation: a process in which a third person, usually an experienced trial attorney or judge, listens to the parties’ positions and offers an opinion about settlement potential and the likely outcome if the matter proceeds to trial

• Arbitration: a process in which one or more neutral third persons who are trained arbitrators hear arguments, review evidence, and render a decision with respect to the issues selected for arbitration. The parties may choose to have the decision be binding or nonbinding.

What are the 6 major methods of resolving differences and reaching agreements in the family law context based on court order, rule, or client choice? (cont.)

5.4


5.5Provide examples of jurisdictional issues that may arise in divorce cases.

• Subject matter jurisdiction: the authority of the court to hear and decide the particular type of case (divorce, custody, property division, etc.)

• Personal jurisdiction: the authority of the court to issue and enforce orders binding a particular individual or individuals

• In rem jurisdiction: the authority a court has over a thing rather than over a person (the thing may be an item, piece of property, or in some states, the marital status)

• See Exhibit 5.3 Jurisdiction in Divorce Actions on page 131 of the text.

What Kinds Of Jurisdiction Are Required In A Divorce Action Involving Both Dissolution Of The Marriage

And Other Issues Such As Division Of Property?5.5

• Does the plaintiff satisfy the state’s residency requirements so that he or she can file an action for dissolution of marriage in the state? Is he or she “domiciled” in the state? How is domicile established?

• Which court has subject matter jurisdiction over divorce and related matters in the state? Subject matter jurisdiction is established by statute.

• Are all related matters before the divorce court? For example, if a custody order is in place based on an abuse action heard in another court, it will need to be consolidated with the family court action.

• In which specific court should the complaint for divorce be filed i.e. in which geographical location is venue proper (county, Parish, etc.)?

What Kinds Of Jurisdictional Issues Arise In Divorce Cases?5.5

• Does the court have personal jurisdiction over the defendant? Are the defendant’ whereabouts known? Can the defendant be located so that he can be properly served? Is he a resident of another state and, if so, can personal jurisdiction be obtained through the state’s long-arm statute?

• If the court lacks personal jurisdiction over the defendant but the plaintiff is domiciled in the state, can the court bifurcate the divorce action = dissolve the marital status and leave the other issues for a later action in the same or a different state where the court has personal jurisdiction over the defendant?

• Does the court have in rem jurisdiction over the property involved in the divorce action? Are real estate or timber rights etc. physically located in another state beyond the court’s jurisdictional boundaries?

What kinds of jurisdictional issues arise in divorce cases? (cont.)5.5


5.6Identify the most common fault and no-fault grounds for divorce.

• Each state establishes by statute its own grounds for divorce, the reasons it considers sufficient to warrant termination of a marriage.

• The grounds may be fault (a ground based on the fault of one of the parties) or no-fault (based on the breakdown of the marital relationship rather than on the fault of one of the parties).

• Approximately 60% of the states identify both fault and no-fault options and the remaining 40% have eliminated fault grounds and have only a no-fault option.

• In the limited number of states that have adopted covenant marriage, divorce typically can only be sought on fault grounds.

What Are The Most Common Grounds For Divorce?5.6

• Irreconcilable differences/ Irretrievable breakdown: The essence of this ground is that the marriage has irreparably broken down due to serious differences between the parties (inability to communicate, serious disagreements over finances, values, divergent interests and incompatible lifestyles).

• Living separate and apart: This no-fault ground is based on the fact that, due to a breakdown of the marriage, the parties have lived apart from each other for a requisite period of time (usually from 1-3 years).

• The precise requirements to satisfy each of these grounds vary by state.

What Are The Most Common No-fault Grounds For Divorce?5.6

• Adultery: commonly defined as voluntary sexual intercourse between a married person and a person other than his or her spouse

• Desertion/abandonment: the plaintiff must show that the defendant deliberately and without consent left the marital relationship with no intention to return, and that the absence has continued for a specified continuous period of time (customarily a year or more); the abandonment may be constructive (the defendant’s conduct was so abusive or intolerable that the plaintiff was forced to move out or into a separate area of the marital home)

What Are The 5 Most Common Fault Grounds For Divorce?5.6

• Cruelty/cruel and abusive treatment: conduct that is so physically or mentally damaging that it endangers the spouse’s health, safety, or reason (usually involves a course of conduct rather than a single incident)

• Habitual drunkenness or drug abuse (usually onset must be post-marriage and the abuse must continue for a requisite period of time)

• Criminal conviction and incarceration (may require that the conviction be for a certain type of crime and/or that the sentence be of at least a certain length)

• The precise requirements to satisfy each of these grounds vary by state.

What Are The 5 Most Common Fault Grounds For Divorce? (cont.)5.6


5.7List defenses available to defendants in divorce actions.

• Defenses tend to fall into two primary categories: Technical/procedural defenses and traditional defenses (some of which have been eliminated in several states)

• Examples of technical/procedural defenses include:

• Lack of subject matter jurisdiction

• Lack of personal jurisdiction

• Lack of proper venue

• Forum nonconveniens

• Lack of proper service

• Failure of the complaint to state a claim on which relief can be based

• The matter is res judicata

• The marriage is invalid

What Are The Most Common Defenses To A Divorce Action?5.7

• Condonation: the matrimonial offense was forgiven by the plaintiff

• Provocation: the plaintiff provoked the conduct alleged in the complaint and therefore should be denied relief

• Recrimination: the defendant alleges that the plaintiff has also committed a marital wrong and therefore should not be granted a divorce

• Connivance: the plaintiff consented to or participated in the act complained of in the complaint

• Collusion: less of a defense than a conclusion by the court that the parties should not be granted a divorce because they jointly deceived the court as to the true nature and purpose of the action (such as when the parties sought a divorce solely to obtain a public benefit in support of a chronic illness)

What Are The Traditional Defenses To A Divorce Action?5.7


5.8Describe the role of the paralegal at each major stage of the divorce process.

• The role played by the paralegal depends on the paralegal’s skill level, the policies and practices of the supervising attorney, and whether the firm represents the plaintiff or the defendant in the divorce. All tasks are performed under the supervision of an attorney.

• Some of the most important tasks performed include: • Participating in client interviews • (See Paralegal Application 5.1 The Client’s Initial

Interview with the Family Law Team on pages 125 and 126 of the text.)

• Helping to gather necessary information and documents such as copies of the marriage certificate

• Drafting the plaintiff’s complaint, the main pleading in the divorce case that sets forth the nature of the action and the request for relief, or the defendant’s response (answer or motion to dismiss)

What Role Does The Paralegal Play During The Divorce Process?5.8

• Help arrange for service when necessary• Draft documents and pleadings in support of

the client’s case such as motions for temporary orders and other matters (requests for fees, appointment of appraisers and GALS etc.), affidavits, memoranda in opposition to motions, required forms, etc

• Draft discovery requests and responses to discovery requests as directed

• Draft separation agreements, review and comment on proposed agreements

• Assist the client with completion of Financial Affidavits and Child Support Guideline Worksheets as needed

What Role Does The Paralegal Play During The Divorce Process? (cont.)5.8

• Conduct research as assigned on a variety of topics including grounds for divorce, methods of service, and statutes and case law governing custody, spousal support, property division, etc.

• Maintain and monitor the case file being sure to include proofs of service, certified copies of critical documents, etc.

• Assist with preparation for trial: draft Pretrial Memoranda, Memorandum of Law, Proposed Findings of Fact and Conclusions of Law, Proposed Judgments; help compile Trial and Exhibit Notebooks; prepare subpoenas and arrange for service; create PowerPoint presentations and other Exhibits

• Draft post-trial motions and appeal materials if warranted and assist with other necessary post trial followup and enforcement actions

What Role Does The Paralegal Play During The Divorce Process? (cont.)5.8

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Cont.

Chapter Summary

5.1

5.2

5.3

Describe how the culture of divorce has evolved over the past four decades.

List the four primary methods of altering the marital status.

Identify the basic stages of the divorce process.

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Cont.

Chapter Summary

5.4

5.5

5.6

Distinguish among the six major alternative dispute resolution methods used in the family law context.

Provide examples of jurisdictional issues that may arise in divorce cases.

Identify the most common fault and no-fault grounds for divorce.

12


Chapter Summary

5.7

5.8

List defenses available to defendants in divorce actions.

Describe the role of the paralegal at each major stage of the divorce process.

the divorce process

Documents

divorce process

divorce cases

culture of divorce evolved5

majority of divorce

major methods

learning objectiveafter

process jurisdictional

learning objectivesafter