© 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 8 DIVORCE & SEPARATION.

© 2006 Thomson Delmar Learning. All Right Reserved.

CHAPTER 8CHAPTER 8

DIVORCE & SEPARATIONDIVORCE & 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

Divorce & Separation

Chapter 8Chapter 8


• 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

Divorce & SeparationChapter 8Chapter 8


• 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



• 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



• 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



• 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)



• 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)



• 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)



• 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



• 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



• 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



• The No-Fault Cause of Action: Sometimes, It’s Nobody’s Fault • Define no-fault divorce statute

– Irreconcilable differences

– Irremediable breakdown

– Incompatibility

– Living apart



• Hit the Road Jack: Proving Irreconcilable Differences and Incompatibility • Proving irremediable breakdown of the marriage



• 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



• 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



• 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)



• 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



• 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



• Community Property Verses Equitable Distribution • Define equitable distribution

• Define community property

• Review community property states (Exhibit 8:16)



• 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



• When Courts Decide to Protect One Spouse From Another • Read Stallings v. Stallings



• 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



• Alimony (continued)• Limited Duration Alimony

• Reimbursement Alimony – Woodworth v. Woodworth

• Permanent Alimony – Lash v. Lash

– D’Arc v. D’Arc



• 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



• Termination of the Alimony Obligation • Cohabitating

• Remarrying

• Disability

• Death



• 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



• Ethics Alert:• Is Susan unduly concerned?


© 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 8 DIVORCE & SEPARATION.

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Transcript of © 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 8 DIVORCE & SEPARATION.