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21 Cards in this Set
- Front
- Back
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Commencing the Case: 3 stages of a case |
1. Ex Parte (Wild) Phase 2. Temporary Phase 3. Permanent Phase |
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Ex Parte (Wild) Phase entails |
the Complaint and Notice to OP |
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Ex Parte (Wild) Phase interview: 4 questions |
1. will the OP hide assets? 2. will the OP want custody of the children? 3. will the OP cut off assets? 4. will the OP physically harm the client? |
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Ex Parte (Wild) Phase: types of ex parte orders |
Until Further Order of the court...
1. Ex Parte Asset Injunction: neither party shall hide, secrete, encumber assets, cancel insurance, etc. 2. Ex Parte Financial Status Quo Order: the financial status quo should continue to be maintained (e.g., mortgage payments, utitlies, JA, etc.) 3. Ex Parte Order neither party shall remove party from jurisdiction. 4. Ex Parte PPO: prohibits physical or threatening conduct |
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Ex Parte (Wild) Phase-The Complaint Contents |
1. Jurisdiction 2. Grounds for Divorce 3. Children 4. Property to be Divided 5. Support 6. Attorney Fees |
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Ex Parte (Wild) Phase: SMJ & PJ Jurisdiction Checklist |
Can the court hear the case? 1. Does the court have SMJ over the case?
2. If the court does have SMJ, does court have PJ over D, in order to make an adverse ruling over D?
Additional considerations: a. Are the parties married? b. Grounds for divorce c. Whether the court has personal jurisdiction over the child. |
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Ex Parte (Wild) Phase: SMJ ANALYSIS |
Quetion 1: Does court have SMJ over the case?
a. Has one of the parties been a resident of jurisdiction for the prescribed amount of time preceding filing (e.g., in MI it is 180 days). i. residency = domicle ii. whether the party has the intent
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Ex Parte (Wild) Phase: PJ ANALYSIS |
Question 2: Does the court have PJ over the case?
a. Does D have minimum contacts or long arm statute over the D? i. If court does have PJ over D, then the court may make adverse rulings over D re: division of property, child support, spousal support, & attorney fees. |
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Ex Parte (Wild) Phase: Jurisdictions Overall |
1. SMJ
2. PJ
3. Jurisdiction over Children
4. Venue |
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Ex Parte (Wild) Phase: Child Custody Jurisdiction |
The court may only make determinations re: child custody if the court has PJ over the child (i.e., UCCJEA) |
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Ex Parte (Wild) Phase: Grounds for Divorce |
1. No Fault Based grounds
2. Fault Based grounds
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Ex Parte (Wild) Phase: Grounds for Divorce Fault Based Grounds |
Requires P plead and prove grounds for divorce.
1. Adultery: must prove sexual intercourse occurred outside the marriage 2. Desertion or Abandonment: spouse voluntarily separates with the intent not to resume marital cohabitation without the consent of the other spouse and without justification 3. Constructive Abandonment: OPs actions force PC to leave 4. Cruelty: mental or physical cruelty
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Ex Parte (Wild) Phase: Grounds for Divorce Defenses to Fault Based Grounds |
1. Condonation: parties resume marital relationship a. Party forgives wrongdoer b. Resumes intimate relations (presumptive evidence of condonation) 2. Recrimination: if both parties are at fault 3. Connivance: party entraps spouse 4. Collusion: parties collude to create fault |
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Ex Parte (Wild) Phase: Grounds for Divorce No Fault Based Grounds |
P only required to plead something innocuous.
MI: "Breakdown in the marriage relationship to the extent that the object of marriage have been destroyed and there is no reasonable likelihood that the marriage can be preserved."
Generally, one party can testify to this, but some states require a corroborating witness. |
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Temporary Phase entails... |
Motion practice and discovery |
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Temporary Phase Objectives (2) |
1. Get the case under control
2. Get the information you need |
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Temporary Phase: Gathering Information Documents(4) |
1. Statement of Net Worth - A & L
2. Income statement - cash flow statement depicts spendable cash
3. Family expenses/life style analysis- expenses of OP/mo
4. Marital history - custody issues, affair, etc. (negotiation) |
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Temporary Phase: Discovery--how do we gather information |
Interrogatories: written questions submitted to OP under oath
Subpoenas: existing public records
Depositions: oral questions asked under oath
Requests to admit: admit or deny statement. If denied, then must be able to prove at trial.
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Temporary Phase: Motion Practice |
"a request for relief"
Praecipe: request to put something on docket & gives notice to OP
Supplementary documents: temporary order, affidavit verifying facts, brief
Oral argument: identify the motion & state the relief |
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Temporary Phase: when to file |
in most jurisdictions, motions have to be filed with the court on 7 days notice |
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Permanent, Post-Judgment Phase entails |
Preparing client for post-divorce |
