Annulment, Divorce & Division of Property Flashcards
What are the grounds for an Annulment?
An annulment invalidates a marriage. Grounds include:
1. Lack of capacity (fraud, duress, mental incapacity);
2. Bigamy;
3. Consanguinity (marriage between close family members); or
4. Underage at the time of the marriage (voidable by the underage spouse)
Fraud exists when?
A spouse made a misrepresentation prior to the marriage on an essential and vital part of the marriage; AND
The marriage would not have been consented to if the other spouse had been made aware.
Waived if spouse continues to cohabitate after discovery of fraud
NOT usually granted for character/financial misrepresentations.
What are the 5 grounds for Divorce?
- cruel and inhumane treatment
- adultery
- abandonment (set amount of time)
- Habitual drunkenness or drug addiction
- No-fault divorce (irretrievable breakdown over a set amount of time)
A Divorce Settlement Agreement may be set aside when?
- Mediator misconduct; OR
- Substantially unfair AND the result of fraud, duress, overreaching, or coercive conduct
When can a separation agreement be set aside?
Invalid if:
1. unconscionable; OR
2. was the result of fraud
What approach do most states take to division of property in a divorce?
Equitable Division or Equitable Distribution Approach
What does Separate Property include?
B - I - G
B. Acquired Before Marriage;
I. Inheritances/Bequests (even if during marriage);
G. Gifts (even if during marriage);
- Property that spouses agreed will be separate; and
Passive appreciation of separate assets (increase in value due to passage of time)
What is marital property?
All OTHER property acquired during the marriage, including: (1) active appreciation caused by the effort of a spouse; and (2) future expectancies, even if payment will not be received until after the marriage ends.
Distribution of Marital Property
All marital property is pooled and then divided among the spouses based on various factors, i.e., duration of marriage, age of spouses, earning capacity, lifestyle, income, separate property of each spouse.
At what point does marital property stop accruing?
Some states > ends upon permanent separation (date of separation)
Other states > ends upon final divorce decree
Is a professional degree or license marital property?
Most states > not marital property, but allowed reimbursement for any support provided to a spouse to obtain the degree/license.
Minority view > is marital property with value based on potential future earnings
Is the fault of either party considered in determining distribution of marital property?
No, this is generally irrelevant, but economic misconduct, i.e., dissipation of assets, is considered.
Can a spouse request modification of a property division award?
Only where exceptional circumstances exist such as fraud or duress.
Do unmarried cohabitants have division of property rights?
Depends on the jurisdiction, but if permitted, the party who has title retains sole ownership of the property unless:
1. there is an agreement between the cohabitants (express or implied); OR
2. Equitable Remedy Theory applies: (a) Resulting trust - title in one party’s name, but another gave money to acquire the property with the intent to have ownership; or (b) Constructive trust - one party obtained title through wrongful conduct; or (c) Quantum meruit - one party is unjustly enriched by the services provided by another.
Either party may bring an action to partition jointly held property.
Agreements between Cohabitants
Agreements for division of property may be:
1. express > enforceable except if based on sexual relations; or
2. implied > court may find an implied-in-fact agreement if the parties comingled funds during the relationship
