UNIV. OF DIVORCE AND SEPARATION. BY WILLIAM T. NELSON. I. SUIT FOR DIVORCE, 4. 1. Bill, Libel, Complaint or Petition, 4. a. In General, 4. b. On Special Grounds, 15. 8 Of Absence Without Being Heard From, 15. (a) Generally, 16. aa. Particeps Criminis Known, 18. bb. Particeps Criminis Unknown, 22. (b) Living in Adultery, 22. (3) Of Attempt on Life of Spouse, 23. (4) Of Commission of Crime, 23. (5) Of Concealment or Contracting of Loathsome Disease, 23. (6) Of Consanguinity or Affinity, 24. (7) Of Conviction and Imprisonment for Crime, 24. (a) After Marriage, 24. (b) Before Marriage, 26. (8) Of Cruelty, 27. (a) Generally, 27. (b) Endangering Life, Limb or Reason, 41. (9) Of Desertion or Abandonment, 41. (10) Of Fraud, Force or Duress, 45. (11) Of Habitual Intoxication, 47. (12) Of Habitual Use of Opiates, 51. (13) Of Impotency, 51. (a) Of Husband, 52. (b) Of Wife, 53. (14) Of Insanity, 54. (15) Of Living Apart, 54. (16) Of Maliciously Turning Wife Out of Doors, 55. (17) Of Neglect to Furnish Wife Necessaries, 55. (18) Of Pregnancy at Time of Marriage, 57. (19) Of Prior Divorce by Opposite Party, 58. (20) Of Prior Undissolved Marriage, 58. (21) Of Religious Views, 59. (22) Of Want of Chastity at Time of Marriage, 60. 2. Answer, 60. a. In General, 62. (1) General Denial, 62. (2) Denying Validity of Marriage, 62. 7 E. of F. P. — 1. 1 Volume 7. (3) Condonation, 62. (4) Recrimination, 63. (5) Setting Up Prior Divorce as Defense to Adultery, 63. b. Answer and Cross-complaint, 64. 8. Stipulation for Reference and Waiving Jury, 65. a. Of Divorce a Vinculo Matrimonii. 68. (1) In General, 68. (a) Pro Confesso, 68. aa. Actual Notice, 68. (aa) Issues Tried by Court, 68. bb. Constructive Notice, 73. (b) Upon Report of Master or Referee, 74. (e) Upon Cross-complaint, 76. aa. For Defendant, 76. bb. For Plaintiff, 76. (f) Upon Remittitur After Appeal, 77. (2) Precedents, 78. b. For Divorce a Mensa et Thoro, 89. 6. Alimony Pendente Lite, 91. a. Notice of Motion, 91. b. Motion or Petition, 92. (2) Wife Defendant, 93. c. Order of Reference as to Amount, 93. (1) Generally, 93 (2) Confirming Prior Order, 95. b. Order, 98. 8. Affidavit for Arrest of Defendant, 98. II. SUIT FOR ANNULMENT, 100. 1. Bill, Complaint or Petition, 100. b. On Ground of Fraud, 103. c. On Ground of Impotency, 106. d. On Ground of Insanity, 106. (1) Where Party has been Restored to Reason 106. (2) Where Party is Still Insane, 107. e. On Ground of Non Age, 107. (1) Where Party has Attained Age, 107. (2) Before Party has Attained Age, 107. (b) By Parent, 103. f. On Ground of Prior Undissolved Marriage, 108. 2. Decree, 109. III. SUIT TO DECLARE VOID MARRIAGE VOID, 109. 1. Bill, Complaint or Petition, 110. 2. Order to Show Cause, 119. 3. Answer, 119. 4. Reply, 124. 5. Judgment or Decree, 126. a. Generally, 126. b. Referring Amount, 126. V. MODIFICATION AND ANNULMENT OF DECREE, 127. 1. Complaint or Petition, 127. a. To Increase Alimony, 127. b. To Decrease Alimony, 128. c. To Annul or Vacate Decree, 129. (2) On Ground of Fraud in Procuring Decree, 130. 2. Order, 134. a. Opening Decree and Referring Question of Alimony, 134. b. Modifying Decree, 135. (1) Increasing Alimony, 135. (a) Generally, 135. (b) And Referring Amount, 136. (2) Decreasing Alimony and Changing Custody of Child, 137 c. Vacating and Annulling Decree, 137. CROSS-REFERENCES. For Form of Petition for Adoption of Children, where the Parents have been Divorced, see the title ADOPTION OFf children, vol. 1, Form No. 630. For Form of Order Granting Leave to Amend a Bill for Divorce, see the title AMENDMENTS, vol. 1, Form No. 1257. For Form of Bill of Particulars in Divorce Suit, see the title BILLS OF PARTICULARS, vol. 3, Form No. 4326. For Forms in Proceedings for Contempt for Nonpayment of Alimony, see the title CONTEMPT, vol. 5, p. 226. For Forms connected with Service of Process, see the title PUBLICATION; SERVICE OF WRITS AND PAPERS. See also the GENERAL INDEX to this work. For matters of Substantive Law, see 9 AMERICAN AND ENGLISH ENCYCLOPÆDIA OF LAW (2d ed.), title DIVORCE. I. SUIT FOR DIVORCE.1 1. Bill, Libel, Complaint or Petition. a. In General. Form No. 7764. To the Circuit Court for the County of Ingham, in Chancery.2 Your oratrix, Jane Doe, of the city of Lansing, in the county of Ingham, and state of Michigan, respectfully shows unto the court, that she is now, and has been for more than one year last past, a resident of said county and state.3 1. Scope of Section.- In this section the various forms have been grouped according to the statutory grounds for divorce, and without reference to whether or not the statute makes the given facts ground for an absolute or limited divorce. Care should be taken, therefore, to examine the statute in each case and to make the prayer for relief conform to the statute under which it is desired to bring the suit. 2. For the formal parts of a bill in equity in a particular jurisdiction consult the title BILLS IN EQUITY, vol. 3. P. 417. 3. Domicile of Parties- Generally. In nearly all the states, the plaintiff, or one of the parties, is required to reside a given time within the state before commencement of suit, unless the offense or injury complained of occurred within the state. This domicile is a jurisdictional fact, and the bill should contain an averment of residence in strict accordance with the statutory provisions, for which see infra, this note. Gray v. Gray, 15 Ala. 779; Bennett v. Bennett, 28 Cal. 600; Burns v. Burns, 13 Fla. 369; Phelan v. Phelan, 12 Fla. 449; Powell v. Powell, 53 Ind. 513; Cole v. Cole, 3 Mo. App. 571; Batchelder v. Batchelder, 14 N. H. 380; Smith v. Smith, 12 N. H. 80; Greenlaw v. Greenlaw, 12 N. H. 200; Mix z. Mix, I Johns. Ch. (N. Y.) 204; Lattier v. Lattier, 5 Ohio 538; Irwin 2. Irwin, 2 Okla. 180; Haymond v. Haymond, 74 Tex. 414; Luce v. Luce, 15 Wash. 608. Under some statutes it is held that the plaintiff must allege residence in the county where the suit is brought. Lattier v. Lattier, 5 Ohio 538; Irwin v. Irwin, 2 Okla. 180; Gould . Gould, 14 Pa. Co. Ct. Rep. 185; Johnson v. Johnson, 3 Pa. Dist. Rep. 166; Haymond v. Haymond, 74 Tex. 414. But the omis sion of such an averment in a bill may be cured by amendment. People v. McCaffrey, 75 Mich. 115. While in other states, where it is provided that the action must be tried in the county where the parties reside, or one of them resides, such provision is held to relate to the venue of the action and does not require an allegation of residence in such county. Young . Young, 18 Minn. 90; Gant v. Gant, 49 Mo. App. 3, overruling Pate v. Pate, 6 Mo. App. 49. See also Werz v. Werz, II Mo. App. 26. It is not necessary that the actual words of the statute as to the residence in the state should be used, but the allegation should cover the intent and meaning of the statute. Collins v. Collins, 53 Mo. App. 470. Sufficient Allegations. An allegation "that the plaintiff is now, and has been for more than two years last past, a bona fide resident of the State of Indiana, and for more than six months last past a bona fide resident of the county of Allen," is a sufficient compliance with a statute requiring that the plaintiff, at the time of filing of such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition." Polson v. Polson, 140 Ind. 310. A statement that "the complainant is, and has been for more than two years, a resident of this State," that the parties were married at Jacksonville, in April, 1862, where the parties have ever since lived," is a full compliance as to the pleadings with the statute, which requires that "it shall appear that such applicant has resided in the Your oratrix further shows that on or about the twenty-fifth day of state of Florida for the space of two years prior to the term of said application," and is a sufficient allegation of the time of marriage. Burns v. Burns, 13 Fia. 369. The averment that the plaintiff "now resides, and for some while has resided, in this, Garrard, county" is prima facie equivalent to the expression "usually resides," contained in the code. Lochnane v. Lochnane, 78 Ky. 467 Insufficient Allegations. Where the statute requires a residence of "one whole year next before filing of the petition," an allegation that the plaintiff is now and has for more than one year prior to the filing of this petition been a resident," etc., is insufficient, as it does not allege a continuous residence of one year next before the commencement of the action. Collins v. Collins, 53 Mo. App. 470. Where the plaintiff must be "an actual bona fide inhabitant of the state, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit," an allegation that plaintiff is a bona fide citizen of the county of Bell, state of Texas, and has been for more than six months before the filing of this petition." is insufficient, as such residence is not alleged to be "next preceding the filing of the suit." Haymond v. Haymond, 74 Tex. 414. See also Luce v. Luce, 15 Wash. 608. Alabama. No bill can be filed for a divorce on the ground of voluntary abandonment unless the party applying therefor, whether husband or wife, has bona fide been a resident of this state for three years next before the filing of the bill, which must be alleged in the bill and proved. Civ. Code (1886), § 2328. Where the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved. Civ. Code (1886), § 2330. Arizona. No suit for divorce from the bonds of matrimony shall be maintained in the courts unless the complainant for such divorce shall, at the time of exhibiting his or her complaint, be an actual bona fide resident of the territory, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit. Rev. Stat. (1887), § 2112. Arkansas. The plaintiff must allege and prove a residence in the state for one year next before the commencement of the action. Sand. & H. Dig. (1894), § 2511. California. - A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months, next preceding the commencement of the action. Civ. Code (1897), § 128. Colorado. No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action, provided this section shall not affect applications for divorce upon the grounds of adultery or extreme cruelty, where the offense was committed within the state. Sess. Laws (1893), c. 80, § 6. Connecticut. If the plaintiff shall not have continuously resided in this state three years next before the date of the complaint, it shall be dismissed unless the cause of divorce shall have arisen subsequently to the removal into this state, or unless the defendant shall have continuously resided in this state three years next before the date of the complaint, or unless the alleged cause is habitual intemperance or intolerable cruelty, and the plaintiff was domiciled in this state at the time of the marriage, and before bringing the complaint has returned to this state with the intention of permanently remaining. Gen. Stat. (1888). § 2806. District of Columbia. -No divorce shall be granted for any cause which shall have occurred out of the District, unless the party applying for the same shall have resided within the District for two years next preceding the application. Comp. Stat. (1894), c. 30, 36. |