Annulment, Divorce, and Separation

Question 1

annulment

Answer 1

• Backward-looking doctrine that declares a marriage invalid b/c of impediment that existed at the time of the marriage
• Marriage is either void or voidable
• Once order is entered, it is as if marriage never happened

Question 2

void marriage

Answer 2

• Failed to meet the requirements for a legal marriage (legal impediments)
• Requires no legal action but usually brought to determine property distrobution or custody
• Marriage is subject to collateral attack (third party)
• If impediment is removed, continued cohabitation may ratify marriage (UDMA, some states)

Question 3

voidable marriage

Answer 3

• Generally a result of consent issue
• Valid until declared null by a court
• No collateral attacks allowed
• If impediment is removed, continued cohabitation may ratify marriage (UDMA, some states)

Examples: nonage, incurable phusical impotence, duress, fraud

Question 4

defense to annulment

Answer 4

• Denial of existence of defect
• Ratification after removal of defect
• Laches, estoppel (rare)

Question 5

Are children of an annulled marriage considered marital children?

Answer 5

Yes

Question 6

Is spousal support awarded in annulment actions?

Answer 6

• No, but it may be available in some jurisdictions
• Reinstatement of spousal support from previous marriage that terminated based on remarriage is not allowed

Question 7

How do courts divide property in case of annulment?

Answer 7

Courts try to put the parties in their pre-marriage position

Question 8

What court has jurisdiction over annulment actions?

Answer 8

• Generally heard in courts of equity
• State of domicile or place of celebration

Question 9

What court has jursidiction over a divorce action?

Answer 9

• In the state that one of the parties is domiciled
• Most states have minimum residency requirement
• To determine financial issues, court must have personal jurisdiction over the defendant

Question 10

mediation

Answer 10

• Hearing by a neutral third party to help work thru issues such as spousal support or custody
• Agreement must be reached by parties
• Proceedings and records are confidential

Question 11

What are the duties of a mediator?

Answer 11

1. Explain the mediation process
2. Explain the right to indpt counsel
3. Ensuring parties have enough info for informed decisionmaking
4. Remain impartial and disclose any potential bias
5. Control power imbalances

Question 12

no-fault divorce

Answer 12

• Irreconcilanle differences (bilateral)
• Separation for continous and specified period (bilateral or unilateral)
• Incompatibility (bilateral)

Question 13

fault divorce

Answer 13

1. Adultery: circumstantial evidence + corroboration
2. Willful desertion: unjustified departure from martial specified period
3. Extreme physical or mental cruelty
4. Voluntary drug addition or habitual drunkeness commencing after marriage
5. Insantiy

Question 14

defenses to divorce

Answer 14

No-fault
* Reconciliation

Fault
* Collusion: agreement to simulate grounds or forgo valid defense
* Connivance: willing consent to other spouse’s misconduct
* Condonation: forgiveness of martial offense with full knowledge (resumption of marital relations)
* Recrimination: misconduct by both parties

Question 15

legal separation

Answer 15

• Does not terminate marriage
• Parties can have rights regarding property, support, custody adjudicated
• Can be enlarged into absolute divorce upon request