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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 G’s 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-1800’s: All property acquired during marriage = Husband 1800’s–1970’s: 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 – cont’d 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 – cont’d 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 can’t force sale) Court orders sale of business without participation of either spouse – sub-reduction in value
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