Divorce Law: An Introduction

Written by Guna Seelan

Wednesday, 23 April 2008 13:20

Divorce is a complex area of the law, and one that varies depending on the jurisdiction in which the case is being hears, which is usually the jurisdiction of domicile for the defender or defendant in the given action. Whilst no two sets of divorce laws are identical across jurisdictional borders, most abide by certain general principles and overarching rules that should be considered when embarking on pre-divorce haggling and the court process itself, wherever you live, to avoid any dissatisfactory outcome or to prevent disappointment following the court order when it is finally granted at the end of the case.

Grounds For Divorce

Most jurisdictions require that before a divorce can be sanctioned, there be a reason for the divorce that is both legally valid and accepted. Common grounds for divorce include adultery, the commission of a crime against the other spouse, or more commonly some general provision about the unworkability of the marriage, whether as a result of a gradual deterioration in personal relationships or simply as a result of a significant row or fight. Of course where this is disputed the court will look into the matter and rule accordingly, although most jurisdictions do now have some form of general, uncontestable provision like a simple 'breakdown of marriage' clause.

Length Of Marriage

In most instances there will be a minimum default length of time marriages must run for before a divorce can be sanctioned. Whilst in certain occasions there are no minimums, most jurisdictions impose a two year rule, or a five year rule, by which the court must abide in granting any decree of separation. This is designed to protect the sanctity of marriage to at least a certain degree and to ensure that people do understand prior to getting married that there is a legal tie-in period, on public policy grounds. However this area of divorce law in particular is rapidly changing, and may ultimately find itself out of favour worldwide.

Fairness

In terms of any settlement there is usually an overriding principle of fairness adopted by the courts in working out who gets what. Of course there may very well be strict legal rules as to what is decided but, particularly in common law systems, there is an overall consideration of what is fair on both parties and what is just or equitable given the circumstances of the split. Obviously as an area of personal life, the courts will look to attempt to gain the best possible ground for both parties, even where one party is staunchly opposed to the other gaining any ground whatsoever. For this reason it's probably best to save everyone the hassle and agree on something that is objectively fair from the outset.

Division Of Property

Of course, one of the major issues arising from divorce is that of division of property. Whilst it is different in each jurisdiction, the higher earner or higher net wealth spouse can expect to lose out overall to the other spouse, provided there have been no pre nuptial agreements drafted to the contrary. As a result, it's again probably best to go for an out of court solution if you think this may end up affecting your financial health.

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Last Updated on Tuesday, 24 February 2009 12:08

Family Law Terms

ANSWER - The Second Pleading in an action for divorce, separation or annulment, which is served in response to the Complaint and which admits or denies its allegation.
CHILD SUPPORT - Support for a child (not taxable to the recipient or deductible to the payor spouse).
COMPLAINT - The First Pleading in action for divorce, separation, or annulment, setting forth the allegations upon which the requested relief is based.
CONDONATION - The adultery of a spouse is NOT grounds for divorce.
CONTEMPT OF COURT - The willful and intentional failure to comply with a Court Order, Judgment, or Decree by a party to the action. Contempt of Court is punishable by fine or imprisonment.
CONTESTED CASE - Any case where the Court must decide one or more issues that are not agreed to by the parties. Cases are considered contested until all issues have been agreed to.
DEFAULT ORDER OR DEFAULT JUDGMENT - An Order or Judgment granted by the Court without the other side's being heard because they failed to plead or submit papers within the time allowed or failed to appear at the hearing.
DEFENDANT - The one who defends the Lawsuit brought by another. Same as Respondent.
DEPOSITION - The testimony of a witness taken out of Court under oath and reduced to writing. Depositions are taken for the purpose of discovering the facts upon which a party's claim is based; obtaining financial information or discovering the substance of a witness's testimony prior to trial.
DISCLOSURE - Procedures followed by attorneys in order to determine the nature, scope, and credibility of the opposing party's claim and his/her financial status. Disclosure devices include depositions, written interrogatories, and notices to produce various documentation relating to issues which are decided in the case. Psychological examinations, blood tests, and court social-service investigations are also part of disclosure.
EQUITABLE DISTRIBUTION OF PROPERTY - A system of distributing property acquired by spouses during their marriage in connection with a divorce or dissolution proceeding. The division is based on a variety of equitable factors, including length of the marriage, relative financial contribution, contribution as a spouse and homemaker and respective need. Title to property in the name of either spouse does not necessarily restrict the Court's right to award all or part of that property to the other spouse as part of an Equitable Distribution.
GROUNDS FOR DIVORCE - The legal circumstances which must be proved before a divorce can be granted, also called a "Cause of Action." Florida is a 'no-fault' state which merely requires there to be irreconcilable differences between the parties.
INJUNCTION - A Court Order forbidding someone from doing a particular act which is likely to cause injury or property loss to another party (same as a Restraining Order).
INTERROGATORIES - A series of written questions served upon the opposing party in order to discover certain facts regarding the disputed issues in a matrimonial proceeding. The answers to Interrogatories must be under oath and served within a prescribed period of time.
IRRECONCILABLE DIFFERENCES - Differences between spouses that are considered sufficiently severe to make married life together more or less impossible.
JOINT PROPERTY - Property held in the name of more than one person.
JUDGMENT - The Order of the Court determining the action requiring the parties to do certain things or setting forth their rights and responsibilities.
JURISDICTION - The power of the Court to rule upon issues relating to the parties; their children or their property.
MAINTENANCE - Spousal support (deductible to the payor spouse and taxable as income to the recipient).
MARITAL PROPERTY - Accumulated income and property acquired by the spouses during the marriage, subject to Equitable Distribution by the Court. Property acquired by gift from third parties or inheritance, and personal injury recoveries is not marital property.
MEDIATION - An informal, voluntary process allowing parties to work with a neutral third party (the 'mediator') to develop a separation agreement. An agreement developed with a mediator is said to be a 'mediated agreement.'
MOTION - A written application to the court for some particular relief such as temporary support, injunction, or attorney's fees, which is made upon advance notice to the other party.
PLAINTIFF - The party who files the Lawsuit.
PLEADING - Formal written application to the Court for relief and the written response thereto. Pleadings include complaints, answers, counterclaims, and replies.
SETTLEMENT AGREEMENT - The agreed resolution of disputed issues reduced to a written document.
SHOW CAUSE - (Same as Order to Show Cause) Written application to the Court for some type of relief which is made upon such notice to the other party as the Court directs and which may contain a restraining order, temporary injunction, or other ex parte relief, pending the determination of the Motion.
SUMMONS - A written notification to the Defendant that an action has been commenced against him, and requiring that the Defendant appear within a specific period of time to answer the Complaint.
TEMPORARY MOTIONS - Applications to the Court for interim relief pending the final decree of divorce, separation, or annulment. Typical temporary motions include motions for temporary maintenance, child support, attorneys' fees, expert fees, custody, visitation, enforcement or modification of prior temporary orders. The Court enters a temporary order after determining a motion. Motions are brought on by the service of a notice of motion or order to show cause, with supporting affidavits.
TRIAL - A formal Court hearing to decide disputed issues raised by the pleadings.