CHAPTER 5: THE DIVORCE PROCESS

*No Fault Divorce – divorce based on an irremediable breakdown of the marital relationship
rather than on the fault of one or both of the parties.
- Increased alternative resolution
-Emphasis on divorce as economic event/equal partners
- Child support guidelines
-Codification of custody, alimony and property division
- Creation of support systems
-Movement of Autonomy.
Methods of Altering a Marital Relationship:
- Divorce
- Legal Separation
- Separate Maintenance
- Annulment
*Fault Grounds -grounds for divorce based on the fault of one of the parties
*No-fault grounds- grounds for divorce based on an irremediable breakdown of the marital
relationship rather than on the fault of one or both of the parties
*Divorce a vinculo matrimonii: from the chains or bonds of marriage – an absolute divorce
that frees the parties to marry
*Divorce a judicial determination that a marriage is legally terminated.
Legal Separation: A judicial determination that allows the parties to live separate and apart
without dissolving their legal relationship as husband and wife sometimes called a limited
divorce.
Divorce a mensa et thora – divorce from bed and board aka a legal separation
Separate maintenance: court ordered spousal support while the parties are living separate and
apart but not divorced.
Annulment: the legal procedure for declaring that a marriage is null and void because of a
impediment existing at its inception.
Void ab inito – from the beginning; of no legal effect from the outset: a contact may be void
ab inito if it seriously offends law or public policy.
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Voidable marriage- a marriage capable of being nullified because of a circumstance existing

at the time it was established.
Appearance: a document filed with the court by an attorney, indicating that he or she will be
representing a specific party in a matter before the court.
(exhibit 5.1 – pg135 a process of contested divorce case)
Fee agreement: a contract between attorney and a client regarding payment for the attorney’s
professional services.
Letter of engagement a letter from an attorney to a client confirming that the attorney agrees
to represent the client in a particular legal matter.
Letter of nonengagement a letter from an attorney to a individual confirming that the attorney
will not be representing that individual with respect to a particular legal matter.
Alternative Dispute Resolution – a procedure for settling dispute by means other than
litigation such as mediation or arbitration.
- Direct negotiation between parties
- Mediation: resolving differences with a neutral third party that considers mutually
acceptable agreements.
- Collaborative law: reaching agreements and resolving differences that stresses
cooperation and joint problem solving.
- Negotiation through counsel
- Neutral case evaluation: a process which a neutral third party, experienced trial attorney
or judge, listens to parties’ positions and offers an opinion about settlement potential and
the likely outcome if the matter proceeds to trial.
- Arbitration: a process which one or more neutral third persons hear arguments, review
evidence, and render decision with respect to issues selected.
- Binding Arbitration: the parties agree to abide by the arbitrator’s decision as final and
unappealable.
- Nonbinding Arbitration: arbitration in which parties are free to accept or reject the
arbitrator’s decision.
- Parenting coordinators: individuals, usually appointed by the court, who assist with
designs and implementation of parenting agreements and enforcement of decrees in high-
conflict cases involving minor children.
Jurisdictional issues in Divorce Actions:
-Conflict of Law: a conflict arising out of a difference between the laws of two jurisdictions
such as two states or two nations
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- Subject matter jurisdiction – authority of a court to hear and decide a particular kind of
claim or controversy.
- Personal jurisdiction – the authority of a court to issue and enforce orders binding a
particular kind individual; sometimes called in personam jurisdiction.
-In rem jurisdiction: the authority a court has over a property or thing rather than other
persons located within its jurisdictional borders.
Bifurcated divorce: a divorce which the dissolution of marriage is resolved in one proceeding
and all other issues such as property division and child custody are resolved in one or more
later. Separate proceedings in the same or another state.
*Does the plaintiff satisfy residency requirements:
- Domicile a person’s legal residence: the place one considers his or her permanent home and
to which he or she intends to return when away
*Which court has subject matter jurisdiction over divorce and related matters?
*Does court have personal jurisdiction over defendant? (pg 145)
- Presence: personal service on a resident defendant or on a nonresident defendant while
physically present in the state as temp. resident or visitor.
-Domicile: actual service of process over a defendant who is domiciled in the state by
publication.
-Consent the defendant (no resident too) may volunteer consent to court accepting service.
-Minimal contacts:
- Long arm statute: a statute setting forth the circumstances which a state
may exercise personal jurisdiction over a nonresident defendant; identifies minimal contact
that defendant had with the state.
Jurisdiction over property?
- Yes within the state lines*
Venue: refers to the geographical location within which a particular action should be filed.
Grounds for Divorce: the reason for filing the action, the basis on which relief is sought in a
divorce action; may be a fault or no-fault ground.
Non fault grounds:
-irreconcilable differences:
-living separate and apart for a specific period of time:
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Fault Grounds:
- Adultery:
o Voluntary sexual intercourse between a married person and other than his spouse.
- Desertion/abandonment
o A fault ground for divorce
- Cruelty
- Habitual drunkenness or drug abuse.
- Criminal conviction and incarceration.
Adultery: voluntary sexual intercourse between a married person and a person other than his or
her spouse; a fault ground for divorce recognized in some states.
Marital communications privilege allows a spouse to refuse to testify and to prevent others from
testifying about confidential communications between the spouses during their marriage.
Criminal conversation: a tort action for adultery brought against a third party who has sexual
intercourse with another’s spouse: abolished as a cause of action in most jurisdictions
Desertion or abandonment: a fault ground for divorce in some states; the plaintiff must show that
the defendant deliberately and without consent left the marital relationship with no intention to
return and their absences has continued for a specified period of time.
Constructive destruction: a situation in which a spouse’s objectionable conduct is so abusive or
otherwise intolerable that it renders continuation of the marital relationship impossible and forces
the innocent spouse either to move out or move into a separate area within the marital residence
in order to maintain his or her health, safety or self-respect.
Cruel and abusive treatment – a fault ground for divorce available in some states; conduct that is
so physically and mentally damaging that it endangers the spouse’s health, safety, or reason.
*Habitual drunkenness and Drug Abuse.
*Criminal convictions and incarceration (pg 154).
Defense: a defendant states the reason why a plaintiff has no valid claim or why the court should
not grant the relief requested.
Condonation – the forgiveness of a matrimonial offense
Provocation – a traditional defense claiming the plaintiff provoked the conduct alleged in the
complaint and therefore should be denied relief.
Recrimination – a defense raised when the defendant alleges the plaintiff has also committed a
marital wrong and therefore should not be granted a divorce.
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Doctrine of comparative rectitude – in the divorce context the granting of a divorce to the party
who is least at fault when both parties have committed marital wrongdoings
Dual Divorce – divorce granted to both parties
Connivance – a traditional defense in which the defendant alleges the plaintiff consented to or
participated in the complaint.
Collusion – a determination by the court that the parties should not be granted a divorce because
they jointly deceived the court as to the true nature of their actions.
Drafting and filing of the complaint (156-160)
Memorandum of lis pendens – a notice that ownership and disposition of certain real property is
subject to a pending legal action and that any interest acquired during the pendency of that action
is subject to its outcome – filed by registry of deeds.
Summons: a formal notice from the court informing a defendant of an action filed against him or
her and ordering the defendant to respond and answer the allegations of the plaintiff within a
certain period or risk entry.
Declaratory judgment: a binding adjudication that establishes rights, status, or other legal
relations between parties.
Service of process: delivery of the summons and complaint to the defendant.
- Accept service
- Personal service – delivered by server
- Publication
Answer: defendants response to pleading.
Counter claim: defendants claim against plaintiff.
Motion to dismiss: request that the court dismiss the case because of a procedural defect or lack
of jurisdiction.
Temporary orders: orders designed to protect the parties and maintain the status quo while a
matter is pending before court.
Motion: oral or written request in a particular ruling or order.
Affidavit: first person statement signed under oath laying facts to support motion.
Pendente Lite: while action is pending
Ex Parte Motion: a motion made without advance notice to the opposing party: a motion
considered and initially ruled on by the court without hearing from both parties based on the
urgency of the matter or the harm that might otherwise result
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Guardian ad litem:
A person often a lawyer appointed by the court to conduct an investigation and or represent a
party who is a minor or otherwise unable to represent himself or herself in a legal proceeding:
the guardians role may be limited to a particular matter such as custody.
Stipulation: an agreement between the parties concerning some matter; may be filed with the
court to be entered as an order.
Military affidavit: an affidavit submitted by a party stating under pain and penalties of perjury
that an absent party is not currently serving in the armed services.
Trustee process: a legal process by which a third party holds the property of a party in trust at the
direction of a court.
Discovery: the process of gathering information relevant to a matter at issue
Separation agreement: an agreement made between spouses in anticipation of divorce or legal
separation concerning the terms of the divorce or separation and any continuing obligations of
the parties to one another.
Trial notebook: a term used loosely to describe the organizational system used by an attorney to
assemble all of the materials needed for a trial.
Proposed findings of Fact: facts that a party asks a court to accept as true.
Conclusions of law: statements as to how governing law applies to the case
Proposed judgement: is a judgement written from a client’s perspective that the court is urged to
adopt as its own.
Subpoena: a document ordering a witness to appear and provide testimony in a legal proceeding
such as a deposition court hearing or trial.
Subpoena duces tecum: a subpoena ordering a witness to appear in a legal proceeding such as a
deposition court hearing or trial and to bring with them specific documents records or things
Motion in limine: a motion asking the court to exclude or limit the use of certain evidence at
trial.
Preponderance of the evidence: a standard of proof requiring that the evidence show that it is
more likely than not that an alleged fact is true or false as claimed.
Interlocutory Decree/Decree Nisi: an interim decree; not final decree.
Motion to vacate judgement: a motion requesting the court to nullify or cancel a judgement
before it becomes final.
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Final judgment/judgement absolute: the courts final decision determining the rights of the parties
and issues in dispute.
**Motion to alter and amend judgement.
**Motion for a new trial
Motion for relief from judgement.
Appellant: party brining an appeal of a lower court judgment
Appellee: party against whom an appeal is brought.
Court of equity: a court has authority to decide controversies in accordance with rules and
principles of equity.
Specific performance: a remedy for breach of contract in which the court orders the breaching
party to complete the contract promise.
Constructive trust: a trust imposed by the court on an asset of a party who improperly or
wrongfully acquired the property.
Qualified Domestic Relations Order: a court directing administrator of a pension plan to pay a
specified portion of a current or former employees pension to an alternate payee to satisfy a
support or other marital obligation.
**Uncontested**