Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, July 26, 2006

Case Law Development: Collusive Divorce May be Vacated for Fraud

This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now.  The case involves a request to vacate a divorce decree on the grounds of fraud.

The dissent summarizes the case nicely:

The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.

The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:

The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.

The dissent would have reversed the trial court's judgment vacating the divorce.

Thinking this case couldn't be that unique, I've looked around for other recent cases presenting similar issues but have found none.  Indeed, the Oklahoma court relied primarily on precedent dating from the first half of the 1900s.  I can't help but think there are plenty of couples out there contemplating divorce though they plan on continuing to live together.  This case leads me to revise my lesson plan on divorce to include a discussion of collusive divorce - not as a historical artifact of fault-based divorce - but as a current strategy by couples.

Vandervort v. Vandervort, 2006 OK CIV APP 34 (April 13, 2006) bgf

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i'm not surprised. until 2006, parties could get mail order divorces in the US Territory of Guam. there is currently a federal lawsuit pending about Guam's divorce law that provides 90 days physical presence is an irrebuttable presumption of residency. yet every other Guam law that requires residency requires bona fide residency/domicile. or, a foreign national or other nonresident can spend 7 days on Guam before obtaining a consent divorce.

Posted by: sandie | Aug 28, 2013 7:53:37 PM

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