Lois & Clark Forums Forums Fan Fiction Fanfic Related FFQ: divorce procedure with murderers?

I'm looking for some legal help here. Not that I married a murderer and want a divorce, but... an unnamed character of mine (unnammed because I want to protect the guilty party ) might just have married someone who turned out to be a cold-blooded monster. My character had absolutely no clue that was the case before she married said-murderer. If the husband is arrested for murder and that kind of charge, can the wife ask for divorce and obtain it immediately, no condition?

Thanks for any answer that might save my character.

Kaethel

I have no idea about the legalities, but I would think that if the marriage was carried out under false pretenses (your spouse not presenting their character in an accurate light) then the character in question could probably get an annulment rather than a divorce. But I'm sure it would probably take some legal hoop jumping to make it happen.

Kaethel, It is my understanding that in the US, each state is under its own divorce laws. So I imagine you could make up any laws you want on Divorce.

But I can tell you that in Canada finding out that your husband is a cold blooded monster is not grounds for Divorce. You could divorce him, of course, but you'd have to go about divorcing him the normal way.

As far as annulment is concerned, not knowing who he is or marrying him under false pretense has to do with him lying about his name not about his character - after all, don't most men lie about their character to get a woman to marry them . (Sorry. I couldn't resist that one)

ML, in Canada, what are the laws if a husband tries to kill his wife--and is convicted of it? Can she get a divorce without his agreement?

Michael and ML, thank you both for your answers. It's going to be a tad more complicated than I'd bargained for, although like you say ML, I might be able to get off technicalities thanks to different laws applying in New Troy. I'd rather have something that was really believable for any state, though.

Sheila, thank you for asking that question. That could work equally well for my (unnamed ) character. If it does work, though, how long would it take between the murder attempt and the divorce to happen? Would it be a matter of days? Weeks? Months? Please don't tell me years.

Kaethel

In Canada, there is only one ground for divorce - and you don't need his agreement to get a divorce. In fact, in Canada, if he agrees to the divorce, it simply means that he doesn't bother to respond to your divorce petition.

The single ground for divorce is: if there has been a break down of the marriage.

There are three ways to prove that:
1. Separation for a year
2. Adultery
3. Cruelty

So in theory, a woman whose husband tried to kill her could get a divorce on grounds of cruelty. However, by the time she got through the courts, a year is likely to have passed and since separation for a year is easier to prove in court and since you can commence divorce proceedings the moment you separate, it is very unlikely that your lawyer will advise you to get a divorce on grounds of cruelty.

In fact, when the Divorce Act was amended twenty years ago, the drafters wanted to take adultery and cruelty out of the legislation all together (since the one year separation was likely to be up by the time anything got to trial). The only reason they left those two in the legislation was because they figured the public wouldn't understand if you couldn't get a divorce for adultery or cruelty.

On the other hand, if he has already been convicted of trying to kill you, it is possible that you could get a divorce before the year is up. But unless he's planning to plead guilty, the likelihood that he's going to get a trial date, be convicted and (if he's really fighting it), exhaused his appeal options in less than a year is unlikely.



[Edit to add: Make up your own laws. After all, this is New Troy. If you need some help drafting a law that's believable, send me an email and I'll give you a hand]

I might just take you up on that, ML. I'm not at that stage in the story yet, but I guess I'd better be prepared if I want to write something believable. Thanks for offering. I really appreciate that.

Kaethel

Just a thought: we hear of so-called 'quickie' divorces in places like Reno. I assume they wouldn't be recognised in New Troy anyway, but would that be a semi-solution in the interim, at least to make your unnamed character feel a little better?

But I don't know how these 'quickies' work - do both parties need to be present, or at least to have signed a document saying that they agree? Though the unnamed character may have a means of persuading her murdering husband to agree...


Edit: answered my own question. See \'quickie\' out-of-state or out-of-country divorces and another from the same site. And also this on the the divorce process generally .

So if her husband were agreeable, and your character were willing to take up residence for six weeks in Nevada, there's a chance she could be divorced legally a lot sooner, if New Troy recognises Nevada divorces.


Wendy

Many (all?) American states have "no-fault" divorce. I most know about California law, but I believe many states have similar rules.

If there are no children, it is generally just a question of filing papers and waiting a period of time. (Don't know what the minimum is.) That's assuming both parties are agreeable. I don't know what happens if one party is contesting the divorce.

Divorces are No-fault in California

Thanks to interstate laws, marriages and divorces are recognized in every state, no matter what state it took place in. Unless, of course, there are certain reasons why the state wouldn't recognize the marriage (ie the recent bans/allowances of gay marriage).

Come to think of it, (and apologies for muscling in on your thread, K) I could do with knowing a thing or two about divorce. What are the consequences for the person against whom divorce papers are being filed if said person doesn't want to contest the grounds of the divorce? For example, if the person filing for divorce decided to claim a large settlement, what would happen?

Yvonne

Quick response, Y: I know some states have community property laws, which mean there isn't a question of contesting the division of property. It's a 50:50 split. (Which is why some very rich people - well, mostly very rich men - utilise pre-nuptial agreements and/or get their divorces somewhere which isn't a community property state.

As ML said, very few divorces are contested in that way any more - since it's possible to get a divorce on the grounds of separation, it's not necessary. I think - and lawyers and anyone who knows more than I do feel free to correct me - that the granting of the divorce is settled first and then any division of assets/alimony/whatever is decided afterwards. Or negotiated between lawyers or whatever. And if it takes a lot of negotiation and a lot of lawyer time there might not be a lot left to divide...


Wendy

Community property states (like California) only divide in half all MARITAL assets. Assets owned by one party before (or inherited by that person during) the marriage are not divided that way. (The difficulty comes with figuring out what part of, say, a business owned by the husband before the marriage which increased in worth over the course of the marriage is a marital asset.)

If the marriage were of short duration OR if one of the parties is willing to give up claims to such assets (perhaps because they want out of the marriage but don't need/want their share of the marital assets), this would be less of an issue. If not, forensic accountants may be necessary.

Yvonne, in most instances the main difference (at least, in no-fault states) between being the filer and the other party is whether you are referred to as the "Petitioner" or "Respondent" in the various documents.

This can be done, but is not usually. My divorce, for instance, is STILL not final. Issues that had been settled keep coming back to life before a final agreement can be drawn up. One thing we have looked at is a separation of the two parts, where the actual divorce and agreement are dealt with independently. (At the moment, it looks like it may not be necessary. I am cautiously optimistic.) >_< Tell me about it.

Yvonne:

Okay, in Canada, there are a lot of ways to settle issues like custody or property issues. Let's say that you left your husband (and, of course, resided in Canada for at least a year). You might have any number of issues you want to settle: custody, access, division of property, support, restaining orders and divorce. You can deal with all of those together or you can deal with the issues seperately.

Now, here is where Canada is a little weird. The federal government controls marriage and divorce and all things associated with it whereas the provincial governments deal with children, support and property. Do you see a problem developing here?

Anyway, as a result, laws on custody, access, support and property division will (often) differ from province to province and the way you get these differs from province to province. As a result, I'm going to now assume you live in Ontario. (And that was probably much more than you wanted to know )

If you wanted to get support (child and spousal), custody, property division and a divorce, these can all be done in a Petition for Divorce. Since a person can file a Petition for Divorce at the time of separation, that is probably the way to deal with it. A person can contest the property issues, custody issues and support issues in the petition without contesting the divorce. There are times when a year has gone by and we still haven't sorted out all of those issues. But the person is in a hurry to be divorced. At that point, I have on occasions brought a Motion for Summary Judgment to get the divorce while not finalizing the other issues. (I know, that sounds like a lot of legal mumbo-jumbo , but I hope I managed to answer your question)



Edit to add:

That's the objective (btw, if you don't know, I am kidding - maybe )

Thanks, ML. The reason I was asking the question was in the case of a husband who refused to sign the divorce papers or agree to a divorce because he refused to let go of her. I know you can't get married unless both of you agree, and I assumed, wrongly perhaps, that you couldn't get divorced unless both of you agreed to it, too. That's why I wondered if the wife could be granted a divorce despite her husband's opposition to it if he had tried to kill her (like, oh, throwing her from the balcony of his penthouse ).

Some more useful info.

If the spouse does not respond at all, you can usually get a default judgment, in what's called an uncontested divorce .

Also, if there is proof that he has tried to hurt her (and in many states, even if all there is is her word), domestic abuse laws would help her get a divorce, I believe.

(And I found this gem here : "One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce." :rolleyes: )

Sheila, I actually have had spouses come into my office wanting to stop a divorce. And basically I tell them that they should save their money. Now that all it takes is proving separation for a year (during which you can actually cohabit for a maximum of 90 days to attempt reconciliation), it's almost impossible to stop the divorce.

It takes two people to get married. It only takes one person to get divorced.

On the other hand, this is New Troy. So the law might well be different (in order to accomodate the 'throwing wife off balconey' situation

States have to recognize other states court procedings, so they have to recognize a divorce. Thats in the Constitution.

But you have to watch out for details. A friend of mine was getting divorced and under Maryland law you have to be seperated for a year. It turns out that staying in the same house in seperate bedrooms for one night at a family event counted as not seperated so the year had to start over.

I typed in divorce on my search engine and came up with a website from the goverment on divorce laws for several states. I checked a number of them and found that if a felony was committed after the marriage that is growns for divorce as well as drug use and alcohol abuse, non-support and fraud to induce marriage. Also in one state if a seperation agreement was entered into by both parties a divorce could then be gotten in as few as 60 days. They all said that agreements on child support, property division etc had to be reached for a divorce to be finalized or it had to go before a judge. Also one state said if the wife was pregnant by another man at time of marriage and he didn't know it that was growns for divorce. For all the states that did list crime as a reason for divorce it stated as taking place after the marriage and some even listed that the sentences had to be 1 year and another listed I think 5 years. So even though you could get the divorce without him agreeing to it you would probably have to file and then wait a year for it to be finalized.

...Maybe you should just have the cold-blooded murderer killed by another inmate in prison... Then your unnamed character :p can get on with her life as a widow.

~Toc