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Chapter 5

Changes In The Culture Of Divorce

Divorce changes started in north america, during the american revolution, where personal liberty contributed to different views on marital vows.  Traditionally divorce cases were based on evidence of physical abuse and adultery. However, lawyers became creative in the interpretation of the law with time which led to the adoption of omnibus clauses that allow courts to give verdicts on divorce-related cases on its best judgment. While using the fault-based filing in divorce laws in 1800 -the 1900s, divorce cases continued to rise and caused various issues such as the clean hands` doctrine meaning the party filing the divorce could not have contributed to the annulment of the marriage. It led to a fault–based issues in  illinois whereby the judges accepted evidence from other people saying they had seen physical marks on abused parties, this would have been regarded as `hear say`  in the current courtrooms as there is no proof at the time of the hearing.

The introduction of family law in california, enhanced `irreconcilable differences` making a way for the common law based on no-fault divorce laws used in most countries in the world.  

Legal approaches for appropriately altering the marital status

According to family law for one to appropriately alter marriage through divorce one needs to;

Prepare an original divorce petition

Prepare temporary divorce orders

Divorce discovery mechanisms

Mediation for the divorce

Divorce court if mediation fails

Bifurcated divorce is granted by the court before resolving economic challenges that are associated with the divorce. It is occurs based on three grounds

A fault divorce is very expensive

Where both parties give consent of their affidavit files

Parties agree to live `separate and apart  

Divorce dispute resolutions

Mediation – it is also referred to as facilitation as control of the results is based on the parties

Arbitration – through this process parties involved are not allowed to make any decision

Conciliation- in this process a positive bond is created amongst parties in dispute, it is normally applied in consumer and labour disputes.

Neutral evaluation- parties present their cases and evidence to a neutral party that gives insights on the strengths and weaknesses of each party and predicts the results.

Settlement conferences- depending on the judge the settlement meetings are voluntary or compulsory. In this case, the referee who is the judge does not make the decision he or she advises the parties on the best way to settle their issues until they reach an agreement.

Community dispute resolution committee-this programs are designed to handle very privately and public issues but are cheaper than the court processes

Personal jurisdiction -this is the power that the court has on a defendant as a person compared to the defendant`s interest in a property

Rem jurisdiction –this is an action taken by the court regarding a defendant’s property.

The primary difference between fault and no-fault grounds for divorce

No-fault is a divorce where the spouse filing the divorce has no charges or evident reasons over his or her partner an example is a divorce based on irreconcilable differences, the party receiving the petition cannot object to it and both spouses are supposed to be separated before the petition is filed. While a fault divorce involves a partner petitioning the other party based on faults such as adultery, life imprisonment, abandonment for a long time, and many others.

Potential defenses to a divorce action

Connivance- this is where there is evidence of a set -up from one of the parties

Condonation-in this case the petitioning party knew about their partner`s unacceptable behaviors but forgave and pursued the marriage.

Recrimination- this is when both parties are viable to charges included in the petition.

Provocation-this is when one spouse forces his or her partner to commit an unacceptable act that brings forth the petition

Collusion-this is a result of fabricating basis or reasons to be divorced.

Nature and purpose of a complaint

A complaint is a request or a plead that initiates a case.

The claimant initiates a court process by pleading a complaint, which contains all the claimant`s demands against a respondent and must state the compensations the claimant`s demand. After stating the respondent must answer acceptance or denial of the claims.

Primary ways of serving process and describe the nature and purpose of the long-arm statute