Dissolution of Marriage Flashcards
- Divorce, Annulment & Suits to declare marriage void
Annulments
Action to have marriage undone
- Dissolve marriages where there is a** legal impediment** to the creation of a valid marriage.
- Marriage is voidable, not void.
- Unlike divorce, no residency requirement for annulment—instead, general venue statutes apply (COA, Respondent’s residence, etc.)
- One party must live in Texas or marriage entered into in Texas
- No PJ necessary
- It treats the marriage as if it never existed (fiction).
Voidable: need to take action to end.
Void: never was valid to begin with
Grounds for Annulment
- Underage spouse
- Influence of drugs/alcohol
- Impotency
- Fraud/duress
- Mental incapacity
- Concealed divorce
- Marriage less than 72 hours after issuance of license
Annulment: Under 18 Years of Age
next friend: suit brought on behalf of a minor
- If a party to marriage is over 16 but younger than 18 (and no court order of emancipation) an annulment can be brought by a next friend (within 90 days of date of marriage); a parent; or managing conservator, guardian of person.
- After 18th birthday of the party, annulment because of age is moot.
Annulment: Alcohol or Drugs
- If petitioner was under the influence of alcoholic beverages or narcotics and as a result, did not have the capacity to consent to the marriage; and
- Petitioner has not voluntarily cohabited with the other party to the marriage since the effects of alcohol or narcotics ended.
Person who brings suit: Petitioner not plaintiff
Annulment: Impotency
- If either party, for physical or mental reasons, was permanently impotent at the time of the marriage;
- The petitioner did not know of the impotency at the time of the marriage; and
- The petitioner has not voluntarily cohabited with the other party since learning of the impotency.
Annulment: Fraud, Duress, Force
- If a party used fraud, duress, or force to induce the petitioner to enter the marriage; and
- The petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.
Annulment: Mental Incapacity
- At the time of the marriage the petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of mental disease or defect; and
- Since the marriage ceremony the petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.
- These suits may be brought by a party, a party’s guardian or next friend.
Annulment: Concealed Divorce
- A party was divorced within the 30-day period preceding the date of the marriage ceremony;
- At the time of the marriage, the petitioner did not know, and a reasonably prudent person would not have known of the divorce; and
- Since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, petitioner has not voluntarily cohabited with other party.
- Barred if brought after the first anniversary of the date of the marriage.
**Annulment: 72 Hour Waiting Period **
- If the marriage took place in violation of the 72-hour waiting period, and no exception applies or waiver was granted, can be annulled.
- Suit cannot be brought after the 30th day from the date of marriage.
Suits to Declare Marriage Void
- Dissolves a marriage where there are no children involved.
- Brought where there is a legal impediment to creation of valid marriage which cannot be cured or waived by the parties
- They are void ab initio-–void regardless of court declaring it void.
- PJ not necessary
**Grounds for Void Marriage **
- Incest
- Bigamy
- Same Sex parties—no longer enforceable, but still on the books.
- Marriage to minor
- Marriage to stepchild or stepparent
* Some void marriages can become valid if impediment is removed and couple still reside as a married couple (bigamy, minor).
A court order can declare minor emancipated, therefore removing the impediement and making marriage valid.
Divorces
All ceremonial or informal marriages must be dissolved, somehow. Most common form is through divorce.
Divorce Generally Jurisdiction
- Either party has resided in Texas for 6 months and is resident of the county of filing for 90 days prior to filing.
-Must meet subject matter jurisdiction requirements - If one spouse meets the jurisdiction requirement a non-resident spouse may file action in Texas in county where resident spouse is present.
Residency
- Military members and their spouses can qualify for divorces in Texas with the same residency requirements if stationed in one or more installations in Texas.
- Non-U.S. Citizens that meet jurisdictional requirements can obtain divorce in Texas.
TX Rules of Civil Procesure, Rule 4. Computation of Time
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail.
mail box rule: extends any deadline by 3 days.
* Because it extends the three day period, you count weekends and holidays
