4. Separation (DPC/UMDA) Flashcards
What is required for a void marriage?
Impediment at time of marriage
- Bigamy (another living spouse unless other spouse unaware of bigamy + reasonably believed marriage was valid - ‘Doctrine of putative spouse’)
- Incest/Consanginuity (most states)
- Underage (some states)
What are the consequences of a void marriage?
Nullity (no court order required)
Any interested party may seek annulment
Subject to collateral/parties’ attack after death
What defences are available against void marriages?
Uniform Marriage and Divorce Act (UMDA)
1) Remove impediment
2) Parties continue to co-habit
What is required for a voidable marriage?
Impediment at time of marriage
- Inability to have normal sexual relations
- Lack of capacity (drugs/alcohol/duress/fraud/no mutual assent)
- Underage (most states)
What are the consequences of a voidable marriage?
Valid until declaration of annulment
Spouse may seek annulment
What defences are available against voidable marriages?
Uniform Marriage and Divorce Act (UMDA)
1) Remove impediment
2) Parties continue to co-habit
Ratification
Laches
Estoppel
Spouse’s death
What is a legal separation order?
Prevents termination of marriage
Adjudicate spouses’ rights
- Alimony/Custody/Support/Property
What grounds are required for a divorce?
No fault grounds
1) Irretrievably broken down (at least one spouse believes)
2) Separated for specified period
Fault grounds
- Adultery
- Mental illness
- Addiction
- Cruelty
- Desertion
- NOT collusion/connivance/condemnation
What is required for state to have jurisdiction (satisfaction of full faith and credit) over divorces?
1) Spouse domiciled in rendering state (SMJ)
- 90 days for most states
2) PJ over Defendant
What are the consequences of a state having jurisdiction over divorces?
NO PJ => Divorce decree valid in all states
PJ => Satisfaction of full faith and credit => Determines property/alimony/child support provisions (not child custody)
- NO fraud/unconscionability
What type of divorce orders can be made?
Final
Interlocutory (not final until after specified period)
- No remarriage allowed
- Co-inheritance allowed
How can spouses mediate divorce orders?
Parties’ decisions (mediator’s decision not binding)
Independent counsel
Impartial mediator
Informed decision-making
What is a separation agreement?
Prevents termination of marriage
Agreement to live separately
Resolve economic issues
- Enforce property/alimony provisions
- Enforce child support/custody provisions (in child’s best interests)
What is required for a separation agreement?
1) Capacity
2) Full and fair disclosure of spouses’ financial worth
3) Consideration (mutual promises)
4) Independent counsel representation
What is the difference between a separation agreement and a divorce?
Separation agreement
- Enforceable as ‘contract’
Divorce
- Enforceable as court judgment
- Can merge divorce + separation agreement
