CHAPTER 8
DIVORCE & SEPARATION
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Divorce is Big Business
• Michael and Libby: Until Divorce Do They Part
• Hiring An Attorney: A Law Firm Enters the
Picture…Almost
• Define pro se
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Efficient Appointment Procedure and Avoiding
Conflict of Interest Problems
• Check for a conflict of interest prior to having a
prospective client come in for an appointment
– Computer programs that cross check
– Attorney may have a brief telephone consultation prior to
the first appointment
• Know why a client is making an appointment
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• A New Client for the Law Firm
• First impression is a lasting impression
• Clients first appointment is typically the first legal
step toward ending a marriage
• For most clients the initial meeting is a huge
emotional drain
• Once the client has decided to proceed they are given
a retainer agreement
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Meeting Your Client’s Needs
• A paralegal will often have more contact with a client
than the attorney
• The paralegal’s relationship with a client can
influence whether the client returns for other legal
work
• A satisfied client means referrals and job security
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Susan Trains for Divorce Practice
• Support staff can make or break a law firm’s
reputation
• Susan is Assigned to Her First Divorce Case
• Three sides to every story
– True story
– Her story
– His story
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Meeting the New Client
• List the essential questions to be asked during the
initial meeting
• Review the interview: Libby Tells It Like It Is
(Exhibit 8:1)
• Susan’s Reaction to the Client Interview
• Review the retainer agreement (Exhibit 8:2)
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Dealing with a Client’s Immediate Financial
Needs
• Define pendente lite
• Temporary support must be asked for before a judge
or in some states, a commission
• Define interlocutory decree
• Explain what role an interlocutory decree plays in a
divorce situation
• Review Libby Smith’s Case Information Statement
(Exhibit 8:3)
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Motioning for Temporary Support
• Review the Notice of motion for pendente lite relief
(Exhibit 8:4)
• Review Certification of Plaintiff (Exhibit 8:5)
• Don’t Forget the Order!
• Review order for pendente lite relief (Exhibit 8:6)
• Review certification of lawyer services (Exhibit 8:7)
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Settlement Problems: The Plot Thickens
• J.D. Argues For a Temporary Support Motion:
Michael Ordered to Pay
• Dueling Jurisdictions: When Divorcing Spouses
Live In Two Different States
• Understand subject matter jurisdiction/in rem
jurisdiction
• Define bifurcated or divisible divorce
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Determining a Client’s Domicile
• Define in personam jurisdiction
– Define domicile
• Define permanent alimony
• Define absolute divorce
• Understand the Full Faith and Credit Clause as it
relates to divorce
• Read Estin v. Estin
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Check Your Jurisdictional I.Q.
• Finding a Cause of Action: Fault Verses No
Fault Grounds
• Divorce complaint/petition describes the facts
sufficient to support a cause of action
• Define collusive divorce
• Understand no-fault divorce statute
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• The No-Fault Cause of Action: Sometimes, It’s
Nobody’s Fault
• Define no-fault divorce statute
–
–
–
–
Irreconcilable differences
Irremediable breakdown
Incompatibility
Living apart
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Hit the Road Jack: Proving Irreconcilable
Differences and Incompatibility
• Proving irremediable breakdown of the marriage
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Living Apart
• Time requirement
– Six months to three years depending on the state
– Must be voluntary on both their parts
• Review the Sample of State Divorce Statutes
(Exhibit 8:8)
• Read Benscoter v. Benscoter
• Read Hughes v. Hughes
• Read Patzschke v. Patzschke
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• In Name Only: Separation, but not Divorce
• Define absolute and full divorce/ Divorce a Vinculo
Matrimonii
• Define judicial separation
–
–
–
–
–
Legal separation
Limited divorce
Divorce a Mensa et Thoro
Separation from bed and board
Divorce from bed and board
• Define separate maintenance
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Preparing Your Client’s Divorce Complaint
• Review Letter to the Court (Exhibit 8:10)
• Review Libby’s Complaint (Exhibit 8:11)
• Review Summons (Exhibit 8:12)
• Courtesy Good Policy
• Review Letter to Defendant (Exhibit 8:12)
• Contacting Opposing Counsel
• Review the Acknowledgement of Service (Exhibit
8:13)
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Answering a Complaint
• Answer a complaint by filing an:
– Answer
– Response
– Waiver
• Default Judgment
• Review Michael’s Answer and Counterclaim (Exhibit
8:14)
• Libby Responds to Michael’s Counterclaim
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Interrogatories: Getting to the Truth
• Read the Sample Interrogatories Regarding Adultery
Claim (Exhibit 8:15)
• Settlement Conference Scheduled
• Understand what a settlement conference is for
• Libby and Michael Hash It Out
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Chapter 8
Divorce & Separation
• Community Property Verses Equitable
Distribution
• Define equitable distribution
• Define community property
• Review community property states (Exhibit 8:16)
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Equitable Distribution
• Understand the legal concept of equitable
distribution
• Read Painter v. Painter
• Read Piscopo v. Piscopo
• Review Equitable Distribution Factors (Exhibit 8:17)
• What Assets Are Considered Immune from
Distribution?
• Transmutation
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• When Courts Decide to Protect One Spouse
From Another
• Read Stallings v. Stallings
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Alimony
• Typical alimony factors (Exhibit 8:18)
• Alimony Pendente Lite
• Rehabilitative Alimony
– Read In re Marriage of Donna J. Robinson v. Robinson
• Lump Sum Alimony
– Arrearages
– O’Neill v. O’Neill
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Alimony (continued)
• Limited Duration Alimony
• Reimbursement Alimony
– Woodworth v. Woodworth
• Permanent Alimony
– Lash v. Lash
– D’Arc v. D’Arc
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Settlement Negotiations Stalled
• J.D. Creates a Solution to the Settlement
Stalemate
• Rehabilitative Alimony Inspires New Career for
Libby
• Seeking a Modification
• Waskin v. Waskin
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Termination of the Alimony Obligation
•
•
•
•
Cohabitating
Remarrying
Disability
Death
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• The Smiths Call It A Day
• Review Michael and Libby’s Final Judgment of
Divorce (Exhibit 8:19)
• Review Property Settlement Agreement Elizabeth
and Michael Smith (Exhibit 8:20)
• Forget the Fat Lady Singing: It’s Not Really
Over Until the Last Alimony Check Arrives
• Petition for contempt
© 2006 Thomson Delmar Learning. All Right Reserved.
Chapter 8
Divorce & Separation
• Ethics Alert:
• Is Susan unduly concerned?
© 2006 Thomson Delmar Learning. All Right Reserved.