Transcript Divorce PowerPoint

Divorce – Grounds and
Jurisdiction
Class #2
But first, a little tech advice….
Dear Tech Support:
Last year I upgraded from Girlfriend 7.0 to Wife 1.0. I soon
noticed that the new program began unexpected child
processing that took up a lot of space and valuable resources. In
addition, Wife 1.0 installed itself into all other programs and now
monitors all other system activity. Applications such as Poker
Night 10.3, Football 5.0, Golf 7.5, and Racing 3.6
I can't seem to keep Wife 1.0 in the background while attempting
to run my favorite applications. I'm thinking about going back to
Girlfriend 7.0, but the uninstall doesn't work on Wife 1.0. Please
help!
Thanks,
A Troubled User
…and the response
Dear Troubled User:
This is a very common problem that men complain about.
Many people upgrade from Girlfriend 7.0 to Wife 1.0, thinking that
it is just a Utilities and Entertainment program. Wife 1.0 is
an OPERATING SYSTEM and is designed by its Creator to run
EVERYTHING!!! It is also impossible to delete Wife 1.0 and to return
to Girlfriend 7.0. It is impossible to uninstall, or purge the program
files from the system once installed.
You cannot go back to Girlfriend 7.0 because Wife 1.0 is designed to
not allow this. Look in your Wife 1.0 manual under WarningsAlimony-Child Support. I recommend that you keep Wife1.0 and
work on improving the situation. I suggest installing the background
application "Yes Dear" to alleviate software augmentation.
and finally….
The best course of action is to enter the command C:\APOLOGIZE
because ultimately you will have to give the APOLOGIZE command
before the system will return to normal anyway.
Wife 1.0 is a great program, but it tends to be very high
maintenance. Wife 1.0 comes with several support programs, such as
Clean and Sweep 3.0, Cook It 1.5 and Do Bills 4.2.
However, be very careful how you use these programs. Improper use
will cause the system to launch the program Nag Nag 9.5. Once this
happens, the only way to improve the performance of Wife 1.0 is to
purchase additional software. I recommend Flowers 2.1 and
Diamonds 5.0 !
WARNING!!! DO NOT, under any circumstances, install Secretary
With Short Skirt 3.3. This application is not supported by Wife 1.0
and will cause irreversible damage to the operating system.
Grounds for Divorce
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Traditional (Fault-Based) Grounds
No Fault Grounds
Traditional (Fault-Based) Grounds
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Cruelty
–
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The forerunner to no fault divorce
Adultery
Desertion/Abandonment
Cruelty
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Was often “negotiated” as the ground of
choice in the pre-no fault era
Even before the “no fault” revolution of the
1970’s, most divorces were uncontested (as
to the divorce, not necessarily the financial
issues)
Remains a ground for divorce in 25 states
Adultery
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Also a crime in many states, but rarely
prosecuted criminally
Remains a ground for divorce in most states
Desertion/Abandonment
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More common that adultery as a ground, but
less so than cruelty
Still on the books in 28 states
Often there is a duration requirement,
typically one year
Some states require that the desertion be
“unjustified”
1970’s – The No Fault Revolution
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Was it a “revolution” or was it the legal
system catching up with changes already
made is society
Studies show that the increase in divorce
rates preceded no fault laws and have fallen
in recent years
The so-called “Bible-belt” or red states have
a higher divorce rate than the “liberal” blue
states
What is no fault?

“Pure” no-fault
–
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Marital breakdown is only ground for divorce
Blended
–
At least one no fault ground with fault-based
grounds still available (but rarely used)
No fault grounds
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Marital breakdown
Living separate and apart
Incompatibility
Marital breakdown
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Requires testimony from requesting party
that the marriage is broken and no chance
for reconciliation
Includes concept of “irreconcilable
differences”
Florida has a version of the “marital
breakdown” ground for divorce
Living separate and apart
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Unlike desertion, no “justification” for the
separation required
Period of separation required, often one year
–
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–
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Pursuant to a written agreement
Voluntarily and willingly apart
No agreement or other conditions required, just
separation
Separated and proof of marital breakdown
Incompatibility
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Available in only seven states
More than petty bickering
Requires showing of incompatibility of
temperament, a true mismatch of
personalities, goals, interests
Florida grounds for divorce No judgment of dissolution of marriage shall
be granted unless one of the following facts
appears, which shall be pleaded generally:
(a) The marriage is irretrievably broken.
(b) Mental incapacity of one of the parties.
F.S.A. § 61.052
Divorce Jurisdiction – “The Divisible
Divorce”
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Separate rules for jurisdiction over:
–
–
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Termination of the marriage
Provisions for the children (custody, visitation,
child support)
Financial concerns (property division, alimony)
Jurisdiction to terminate marriage
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Divorce is not an equitable action, despite
notion of equitable distribution or property
and many opinions in divorce cases where
judges speak of “doing equity.”
Authority to grant divorce is purely
statutory, as are the jurisdictional
requirements
Migratory divorce
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Prior to residency statutes, needed only to be
present and prove a ground for divorce
Often want to get away from home to
someplace warm (yes, Florida was once a
divorce haven in the era of migratory divorce)
Avoid local notoriety
Also avoid financial responsibility for family
back home
Full Faith and Credit Clause
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Constitutional requirements for application of
full faith and credit as determined by US
Supreme Court prompted states to adopt
meaningful residency requirements that
doomed migratory divorce
No state wanted to have a jurisdictional
requirement so loose that other states were
not obligation to recognize its divorces
Williams I
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Nevada divorces and remarriage,
Return to North Carolina and
prosecuted/convicted of adultery
Held: State of plaintiff’s domicile can grant a
divorce which must be given “full faith and
credit” by all other states
Adultery conviction reversed
Williams II
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Same case, but on remand the N.C. court
found that the claim of domicile in Nevada
was not supportable.
Held: States must give respect for, but are
not bound by, another state’s finding that it
has sufficient proof of domicile to grant a
divorce
Adultery conviction affirmed
Sherrer
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Wife from MA comes to FL for divorce
H appears in FL also, but does not contest
W’s claim of FL domicile
H then appeals, claiming FL lacked
jurisdiction because W was really a MA
resident
Held: H had a chance to contest FL
domicile, but didn’t, so now he is stuck with it.
Period of residency before filing
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Every state has a statutory minimum period
of residency (except Alaska, which requires
proof of common law domicile)
6 months is the most common period of
residence
–
Nevada is 6 weeks, hence its reputation as a
divorce haven, but only for the wealthy who can
afford to stay there for 6 weeks to establish
jurisdiction
Personal Jurisdiction - Kulko
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Minimum Contacts with state by defendant
Reasonable and fair to require defendant to
defend action in state in question
Purposeful availment of privileges and
protections of the state
Defendant’s acts elsewhere caused effects in
the state
Florida period of residency
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FL. Stat. §61.021 Residence requirements.-To obtain a dissolution of marriage, one of
the parties to the marriage must reside 6
months in the state before the filing of the
petition.
Subject Matter (In Rem) Jurisdiction
over Divorce in Florida
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Both parties here, or only one?
Is six months really six months?
Either party can be FL resident

Court has jurisdiction to dissolve marriage
where either party is a resident of Florida.
Loffler v. Loffler, 620 So.2d 1048 (Fla. 1st
DCA 1993).
Six months need not be continuous

Continuous residency in state for six months
prior to filing dissolution petition is not
required. Residency requires only
– actual presence
– and the intention at that time to make
Florida party's primary residence.
– Hunter v. Hunter, 736 So.2d 801 (Fla. 1st
DCA 1999); Copas v. Copas, 687 So.2d
885 (Fla. 2d DCA 1997).
For example…

Short-term vacations outside of Florida
during the crucial 6 month residency period
will not along defeat subject matter
jurisdiction if:
– At least six months has passed since
initially arriving in Florida before the
petition is filed, and
– There is the requisite intent starting at the
beginning of that 6 month period to
permanently reside here
But…
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The court does not have jurisdiction over
marriage where evidence did not establish
that a wife intended to make Florida her
permanent residence six months prior to her
filing of the petition. Sragowicz v.
Sragowicz, 591 So.2d 1084 (Fla. 3d DCA
1991).
“one suitcase” decision
What proves intent to reside?
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Purchase of home
Register to vote
Driver’s license
Bringing belongings
Registering children in school
Becoming employed
Clearly stating an intent to remain
Temporary or involuntary absence
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Temporary and or involuntary absence from
the State does not defeat residency
requirement. Wade v. Wade, 113 So. 374
(Fla. 1927), Rahal v. Rahal, 861 So. 2d 114
(Fla. 3d DCA 2003), Wetherstein v.
Wetherstein, 111 So.2d 292 (Fla. 2d DCA
1959)
What types of absence are OK?
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Military or government service
Employment reassignment (if not permanent)
Vacation
Incarceration in another state
Medical treatment elsewhere
Key fact to prove if temporarily absent
from FL
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Intent to return to FL after period of absence
Did not establish a domicile in another state
Challenges to subject matter
jurisdiction
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Lack of subject matter jurisdiction can be
raised at any time including for the first time
on appeal.
But subject matter jurisdiction is a matter of
law and cannot be conferred on the court by
waiver, agreement or acquiescence.
Chapoteau v. Chapoteau, 659 So.2d 1381
(Fla. 3d DCA 1995).
What if two states have subject matter
jurisdiction?

Florida court should decline to exercise
jurisdiction of dissolution of marriage action
where two courts have concurrent jurisdiction
and a prior action has been filed in another
state. The first to exercise jurisdiction
acquires exclusive jurisdiction under the
"principle of priority". Siegel v. Siegel, 575
So.2d. 1267 ( Fla. 1991).
Personal Jurisdiction over Divorce in
Florida

FL. Stat. 48.193: Florida has personal jurisdiction
over a defendant if he/she:
– maintained a matrimonial domicile in this state at
the time of the commencement of this action
– resided in this state preceding the
commencement of the action, whether cohabiting
during that time or not.
– This statute does not change the residency
requirement contained in §61.021 for filing an
action for dissolution of marriage.
Long arm jurisdiction
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FL. Stat. 48.194: Personal service outside the
United States: Service of process on persons
outside the United States may be required to
conform to the provisions of the Hague Convention
on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial matters.
To effect service of process under the Long Arm
Statute, specific allegations demonstrating the
jurisdictional facts must be alleged. Weiler v. Weiler,
861 So. 2d 472 (Fla. 5th DCA 2003), McMahan v.
McMahan, 826 So. 2d 1024 (Fla. 3d DCA 2001).
Challenges to personal jurisdiction
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Where parties raise jurisdictional issues, evidentiary
hearing is required. Weiler v. Weiler, 861 So. 2d
472 (Fla. 5th DCA 2003), Anechiarico v.
Thompson, 596 So.2d 514 ( Fla. 4th DCA 1998).
When jurisdictional allegations of pleading are
controverted by affidavit, the burden shifts to
petitioner to establish jurisdiction. Passy v. Lewis,
553 So.2d 223 (Fla. 1st DCA 1989).
Lack of jurisdiction
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A Final Judgment entered without personal
jurisdiction is void ab initio. Anderson v.
Anderson, 845 So. 2d 307 (Fla. 2d DCA
2003).
Death of a party prior to rendition of final
judgment divests court of jurisdiction.
MacLeod v. Hog 654 So.2d 1250 (Fla. 2d
DCA 1995).
Federal Jurisdiction?
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Doctrine of abstention by federal courts in
domestic relations matters
Exception to federal diversity jurisdiction
The whole subject of the domestic relations
of husband and wife, parent and child,
belongs to the laws of the states and not to
the laws of the United States
Exceptions to Abstention Doctrine
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Tort suits stemming from custody and
visitation disputes
Enforcement of divorce judgments if the
question does not require the federal court to
address core domestic relations issues
Other times where the “dirty work” of family
law has already been done by the state court