Divorce Problems Handbook

By Frederick M. Kal

A Practical Guide to Divorce Problems and the Law of Divorce in Fifty States. More than 1200 questions and answers concerning divorce, custody of children, alimony, annulment, separation agreements -- plus concise definitions of the divorce laws of each state.

• Language: English
• Publisher: Frederick Fell Publishers, Inc.
• Release date: Mar 1, 2017
• ISBN: 9780883915677

Frederick M. Kal

FREDERICK M. KAL attended the University of Dever, and Colorado State College. He is a graduate of Wesminster College of Law, and has been in the practice of law since 1946. He is a member of the Denver Bar Association, Colorado Bar Association, American Bar Association, and the American Bar Association Section on Family Law.

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Colorado

PUBLISHER’S PREFACE

… Adultery is the major ground for divorce in most states. Yet the law differs from state to state, and is subject to some curious deviations and even corruptions. What constitutes adultery as a grounds for divorce in your state?

… More divorces are granted on the vague-sounding ground of mental cruelty than on any other. Just what behavior constitutes mental cruelty, and how must it be proved in the courts?

… What weight do impotency, abnormal sex behavior or a criminal record carry in a divorce action?

… Are drunkenness, drug addiction and certain diseases adequte grounds for divorce—under what circumstances and in what states?

… What steps can be taken to defeat a divorce action by a marriage partner who does not want his—or her—marriage to be dissolved?

… What considerations determine the court’s decision regarding alimony, child custody, property division, tax and inheritance problems?

… What are the differences between divorce, annulment and separate maintenance, and what are the practical and economic consequences of each?

… How valid and binding are out-of-state and out-of-country divorces in our American courts?

… These are but some of the urgent and perplexing questions faced by people considering one of the gravest, and perhaps most tragic, steps in their lives: a suit for separation or divorce from their marriage partner.

Such a person will, of necessity, eventually consult his—or her—attorney. He may also—indeed, he should—approach his minister, his physician, a psychiatrist, marriage counselor or social worker before taking any action. In any case, he will be wise to inform himself as fully as possible on the legal, practical and personal consequences of his contemplated act.

This book, by two eminent members of the American Bar, is an attempt to supply such information. In more than 1200 questions and answers, they discuss the most frequent problems which arise before and after an actual decision to separate is made. This is in no sense a legal treatise, nor is it intended in any way to take the place of an attorney’s services. It is, rather, a down-to-earth, easy-to-understand analysis of divorce problems, to help the layman recognize when further aid and consultation are required.

For the marriage counselor, social worker, psychiatrist, family physician and minister, it should serve as an invaluable tool in untangling the myriad differences in our divorce laws, and in answering the questions — and perhaps forestalling action — on the more than 800,000 cases involving divorce, annulment or separation that reach our courts each year.

It covers every aspect of the problem: from the most common (and uncommon) grounds for divorce to the various defenses to defeat a divorce action—from means of enforcing a decree to its possible modification—from thorny disputes over alimony and child support to delicate negotiations involving property settlement—from the special requirements for annulment to the unique conditions of separate maintenance.

Included are concise definitions of the divorce laws in each of the 50 states, as well as a glossary of the legal terms common to divorce actions. And for those whose marriages are in trouble — and who wish to avoid the heartbreak of divorce or separation — there is a section devoted to the kind of assistance that is available, and where it can be found, to help salvage threatened marriages.

INTRODUCTION

Divorce is the most crucial maladjustment affecting the American family today, with the number of divorce decrees being granted by our courts showing a steady increase annually. Millions of families are either directly or indirectly affected by divorce. The magnitude of its incidence is reflected by the fact that some 800,000 matrimonial cases involving family problems are handled by our courts each year, and approximately half of these actions result in divorce.

All fifty states of the United States have laws setting forth provisions for securing legal separation or divorce. Divorce, however, is not exclusively an American institution, as many European and Asiatic countries have incorporated provisions in their laws and appointed and constituted authorities to handle the problem of legal separation. Provisions for divorce were common in other parts of the world before the United States had become a nation. Church and ecclesiastical bodies also have officials and tribunals with authority to nullify or invalidate marriage. In the United States, decisions of these ecclesiastical courts and officials have no effect on the civil status of marriage; however, some foreign countries give such decrees binding effect in civil law.

It is the policy of the courts to discourage rather than encourage divorce, and they will generally dissolve marriages only in strict adherence to law. In the majority of states a divorce is provided only for the innocent party. However, in some states when both parties are at fault neither party will be granted a divorce, although many states do not follow this practice. There are many irritating and disrupting forms of behavior that are not grounds for divorce. Behavior that is usually not such as to constitute a ground for divorce by itself would include such conduct as extravagance, parsimony, gambling, jealousy, indifference, lack of mutual interests, poor housekeeping, untidiness, slovenliness, want of ambition, laziness, positiveness, negativeness, quarrelsomeness, fault-finding, occasional intoxication, ingratitude, lack of humility, immaturity, holding opposite political views, Sunday golfing and ‘henpecking.

The divorce action is a triangular affair. The wife and husband and the state are all parties to the action. The state is a party to every divorce action, for the reason that the preservation of the marriage is deemed essential to the state. Matters of public welfare require the state to be a party. The interest of the state continues in subsequent court actions involving abandonment of children, failure to support minor children, change of custody, adoption and other matters.

Not with standing the fact that it is public policy to discourage divorce, the state does not discountenance divorce where the relationship of the spouses has deteriorated to such an extent that the legitimate objects of marriage have been destroyed. The state, furthermore, will not insist that the marriage relationship continue or the home be maintained under circumstances that are more detrimental to society than divorce. The courts cannot compel a husband and wife to live together.

In the United States, there has been a significant effort to unveil the causes of divorce and to rectify the plight of sick marriages. Legislatures, lawyers and bar associations are studying and adopting modern statutes reflecting advances in the social sciences. The modern trend is to treat a divorce action not as a case between two opposing parties as plaintiff and defendant, but as a family action, with justice to both parties and their children as the ultimate objective of the decree. New procedural rules have been formulated, and family courts and court counseling services have been inaugurated.

The majority of the courts in this country are equipped only to terminate marriage. Contributions have been made by other groups to the penetrating gain and improved posture in handling the factors that cause marital breakup. The underlying causes of marital discord and failure and the rehabilitation of the parties involved have come to the attention of educational groups and institutions, religious institutions, and the medical profession. The psychiatrist and the psychiatric case worker are contributing immeasurably.

Splendid and able assistance is being rendered daily in the field of marriage counseling for confused couples. In appraising the marital problem and attempting to determine whether there is some basis or hope for the continuance of the marriage relationship in specific cases, the social service agency and the social service case worker are using their skills and techniques with gratifying results.

When the marriage is sick, some agency or individual offering therapeutic assistance should be consulted, and in most large cities there are many qualified groups that will give assistance to the problems of a failing marriage. A lawyer will ordinarily be acquainted with an agency or refer one to a court counseling service. The attorney is interested in holding the marriage together, or in reconciliation. In the appendix of this book are listed a number of agencies that offer such help. If the community does not have such services, some of these groups may be contacted by mail.

When it has been determined that the conflict between the husband and wife is irreconcilable, that their cause of discord is not superficial but deep-rooted and of long standing, then the marriage cannot be salvaged and the frontal attack has failed. The family lawyer or a domestic relations attorney should be consulted.

A consultation with a lawyer does not of itself lead to divorce. The cumulative experience of the practicing attorney enables him to resolve many marital problems with a practical solution. The lawyer is not seeking divorce litigation, but if it is concluded that divorce is the only answer, he will institute divorce proceedings. All matters discussed in the laywer’s office are of a confidential nature and no further disclosure of the problem is made without the complete understanding and acquiescence of the client. The relationship between the lawyer and the client is of a special, confidential nature prescribed by law.

The function of the lawyer when all preventive measures have failed is to determine initially whether annulment, separate maintenance, or divorce is advisable. The complaining spouse may be required to furnish the attorney with some of the following information, depending upon the facts of the particular case: details and nature of the grounds, or causes, for divorce; time, date and places where the grounds occurred; residence of husband and wife and if residence of the other spouse is not known, last known address; date and place of marriage; communities where the parties have lived together as husband and wife; full names and birth dates of minor children; list of jointly owned and individually owned real and personal property; antenuptial agreement (agreement made before the marriage); current earnings and income of both parties from all sources; date of separation; income of both spouses for the previous year; assets of both spouses before the marriage; assets accumulated jointly after marriage; wife’s previous occupation and working intentions; ability to pay attorneys’ fees and court costs; if the divorce is brought in a community property state, a list of individual and community property; funds to meet currennt living expenses and support of children; extra help needed to care for children; adequacy of present living quarters; desirability of paying alimony and support money directly or through the court; necessity to remove spouse from family home; need for restraining orders for the safety of children and spouse; need to keep spouse from leaving state; insurance program of parties in force; future medical needs of parties and children; necessity to leave the state; desire to seek restoration of maiden name.

If the attorney determines, according to the statutes of the state, that grounds for divorce or separation exist, he will ordinarily notify the other party by summons and file a petition or complaint required to initiate the action. The pleading will set forth the grounds upon which the divorce or separation is sought and generally there will be some specific requests, such as custody desired, alimony and support payments for children, division of property, attorneys’ fees and a request for an absolute decree in divorce.

The lawyer may, in preliminary and supplementary proceedings, ask the court for various orders. These orders could be directed at preventing molestation of one party by the other, temporary alimony, support money for the children, restraining the other spouse from transferring or disposing of the property, and such other orders as will preserve the prevailing status of the parties.

The divorce, if granted, will be by either a contested or noncontested action. If contested, a civil suit will ensue, and in most states it will be necessary for the court to determine guilt or fault as the evidence discloses. If the divorce is not contested, and the majority of actions are not, then only the complaining party usually appears and the other spouse is generally represented by counsel. The case of the complaining spouse must be proven to the satisfaction of the court. If the parties have voluntarily entered into a separate agreement adjusting their differences, the court may incorporate the agreement in the decree, and it will be enforceable against the parties.

The fifty states of the Unittd States each have different divorce laws. There is no simplification of the myriad of laws, decisions and statutes on the subject. Divorce is not a do it yourself project, and the need for counsel from a qualified attorney when an individual is involved in a divorce action, is, as we have seen, mandatory.

The material in this book is in no way to be considered a substitute for the services of an attorney. It will, however, supply the reader in a general way with many of the answers to questions that arise concerning divorce. The answers are prepared for those who are not learned in the law. To answer as many questions as possible, the answers are of necessity brief and concise. They are intended to be informative of the diverse problems that are constantly arising in matters of divorce and related subjects. Divorce and related domestic relations problems require a complete case history evaluated by a competent attorney to determine rights, obligations, capacity and procedure.

It should be borne constantly in mind, as these questions are read, that no one question and answer is the rule in every state, as each state has its own particular statutes and decisions. This publication is not intended as a legal treatise, but is for the layman, to give him a preliminary annswer to his questions and help him to recognize when further aid and consultation are required. Thus the language, rather than being in legal terms, has been reduced to relatively understandable form for the average individual. When one has a problem that is not adequately answered in these pages, he should consult an experienced attorney.

QUESTIONS AND ANSWERS

1. General Principles

1. Q: What is meant by a final decree of divorce?

A: A final decree of divorce means that the marriage relationship has become dissolved by a court having competent authority. The marriage has ended, and both spouses are free to marry again.

2. Q: Can a marriage be dissolved by any but legal authority?

A: It cannot.

3. Q: If either party to a divorce action dies before final judgment, may the suit continue in the name of his or her representatives?

A: No; the death of either party defeats the action, and it cannot be revived.

2. Grounds for Divorce

Grounds for divorce are causes of divorce. They are the reasons for which a suit for divorce may be brought and a divorce granted. In order for a divorce to be granted, one or more grounds must exist and be proven. The law of domestic relations has progressed considerably from the old English common law, which, before the time of King Henry VIII, allowed no divorce upon any grounds and considered marriage indissoluble and as a binding sacrament, until the present day, in which every state in the Union now recognizes at least one ground for divorce.

The grounds for divorce differ in nearly every state and are determined by the divorce laws of each state. The number of grounds in each state vary from only one ground to many. A divorce may not be granted unless the grounds upon which it is founded are particularly enumerated by the statues of that state.

The most common grounds for divorce are adultery, cruelty and desertion, which are found to be grounds in more states than are any of the other various grounds. Cruelty, either physical or mental (where mental cruelty as such is a ground for divorce in the particular state), is more frequently used as the ground for a divorce action than any other.

For the grounds in a particular state, the divorce laws of that state should be consulted. In general, the following include most of the grounds found in the various states:

Adultery

Another husband or wife living and not divorced (bigamy)

Impotency

Desertion

Physical or mental cruelty

Nonsupport

Drunkenness

Conviction of a felony

Insanity

Separation, due to another decree or otherwise

Fraud

Gross neglect of duty

Personal indignities

Obtaining foreign divorce as ground of divorce for other party

Public defamation

Violent temper

Vagrancy

Incapacity

Crime against nature

Drug addiction

Wife’s pregnancy at time of marriage not due to husband’s agency or of his knowledge

Incompatibility of temperament

Conviction of felony prior to marriage unknown to other party

Absence, unheard from (for different periods of time in different states)

Duress

Under-age of complaining party, not confirmed after reaching age of consent

Mental incapacity at time of marriage

Attempt on life of other spouse

Communication of venereal disease

Willful or gross neglect of duty (often interpreted as nonsupport)

Being member of a religious society requiring renunciation of the marriage covenant or forbidding cohabitation

Other spouse fleeing from justice

Consanguinity or affinity

Prostitution of wife before marriage unknown to husband

Grounds at discretion of court

Adultery

Adultery is defined as sexual intercourse committed voluntarily by a married man or woman with someone other than the offender’s wife or husband.

4. Q: Is a single act of adultery sufficient to establish adultery as a ground for divorce?

A: In most states a single act of adultery is sufficient on the part of either spouse.

5. Q: If one spouse obtains a decree of divorce, then marries and cohabits with another, and the divorce is later declared void, is such spouse guilty of adultery?

A: Yes; such mistake of law has been held to be no defense.

6. Q: If a husband enters into a separation agreement with his wife and later discovers the previous adultery of his wife, may he obtain a divorce on the ground of adultery?

A: He may.

7. Q: In a divorce proceeding, where a ground of adultery is charged, may the co-respondent, i.e., the person named as the party with whom the offending wife or husband had sexual intercourse, appear in order to defend his or her reputation.

A: In some states, such an intervention (appearance) may be made, in others it may not, and in still others the naming of a co-respondent is prohibited. The laws of the particular state concerned should be consulted.

8. Q: If a man marries a woman of unchaste character, can he obtain a divorce on the ground of her adultery committed after marriage?

A: Yes, he can. Regardless of her previous life, if she violates her marriage vows by unchastity, her husband is entitled to a divorce on the ground of adultery.

9. Q: May the other party’s general reputation for chastity or lack of it be introduced in court by the complaining spouse?

A: No; ordinarily this may not be put in evidence.

10. Q: Suppose one commits adultery unintentionally, as when a wife has intercourse with a man not her husband believing him to be her husband; or a wife is raped; or a wife has intercourse when insane;