Divorce Review

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Divorce Review
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Defenses to Divorce

• Reconciliation We agreed to divorce
• but I offered to reconcile.
• Recrimination I did it, but so did she.
• Condonation I did it, but she forgave me.
• Fault Era bar to divorce
• No-Fault Era (2) (3) are factors for adultery
  but not bar

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Bar Exam Questions

• Andrew and Caroline
• 9/90 married
• 7/95 Andrew moved out
• 2/98 Do either have grounds for divorce?

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• Caroline Actual Desertion
• Two Year Separation
• Adultery (if opportunity and inclination
  can be proven)

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• Andrew - Two Year Separation
• Voluntary? no mutual agreement
• Adultery? no proof of opportunity and
  inclination
• - recrimination?

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• Lancelot and Guinevere
• 1/91 - Guinevere left
• Gs offer to reconcile rejected
• 1/92 - Does Lancelot have grounds for
  divorce?

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• Cruelty of Treatment / Excessively Vicious
  Conduct?
• Pre-1998 Limited Divorce
• Post-1998 Absolute
• But single incident enough?
• Actual Desertion?
• No intent to end marriage/justified departure
• Voluntary Separation? No mutual agrmt
• 4) Two Year Separation in 1/93

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Marital Property

• Part I

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Historical Overview

• Pre-1800s All property acquired during
  marriage Husband
• 1800s1970s Common Law Rule
  property distributed by TITLE
• Modern Rule Majority Equitable Distribution
• Minority Community Property

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Prob 4-1

• H W married 10 years decide to divorce
• Assets Title
• Business H
• Pension H
• Home J
• Car W
• Car H
• Bank Accts J
• Mutual Fund W (by inheritance)

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Issues

• 1st Issue Classify marital/non-marital
  (separate) property
• Definition All property acquired by H W
  during marriage except gifts or inheritance (or
  traceable to either)

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Issues contd

• 2nd Issue What is value of marital property?
• Assets Title Value
• Business H 500 K
• Pension H 100 K
• Home J 200 K
• Car W 25 K
• Car H 25 K
• Bank Accts J 50 K
• Total 900 K

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Issues contd

• 3rd Issue How to divide/distribute marital
  property?
• Options Community Property (equal div. rule)
• Title
• (Alternative?)
• Equitable Distribution

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Prob 4-2

• H W own and are employed in mail order business
  and decide to divorce
• Issue How to Divide Business in Comm. Prop.
  Juris. Requiring Equal Div.?

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Options

• H W continue business after divorce
• One spouse buys the other out after valuing
  business value reduced because of loss of
  participation of one of the spouses (negotiated
  option court cant force sale)
• Court orders sale of business without
  participation of either spouse
• sub-reduction in value