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

© 2006 Thomson Delmar Learning. All Right Reserved. 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 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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) Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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) Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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) Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. The No-Fault Cause of Action: Sometimes, It’s Nobody’s Fault Define no-fault divorce statute – Irreconcilable differences – Irremediable breakdown – Incompatibility – Living apart Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. Hit the Road Jack: Proving Irreconcilable Differences and Incompatibility Proving irremediable breakdown of the marriage Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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) Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. Community Property Verses Equitable Distribution Define equitable distribution Define community property Review community property states (Exhibit 8:16) Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. When Courts Decide to Protect One Spouse From Another Read Stallings v. Stallings Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. Alimony (continued) Limited Duration Alimony Reimbursement Alimony – Woodworth v. Woodworth Permanent Alimony – Lash v. Lash – D’Arc v. D’Arc Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. Termination of the Alimony Obligation Cohabitating Remarrying Disability Death Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. 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 Divorce & Separation Chapter 8

© 2006 Thomson Delmar Learning. All Right Reserved. Ethics Alert: Is Susan unduly concerned? Divorce & Separation Chapter 8