ending a marriage Flashcards
annulment
voids a marriage and declares it as having never been valid
void marriage
treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose
what makes a marriage void?
- prior existing marriage: the later marriage is void; some states allow the marriage to become valid if one party had a good-faith belief that the marriage was valid and the impediment is removed (there is a rebuttable presumption of validity of the latest marriage)
- incest: a prohibition on marriage between related persons
- mental incapacity: a person who is unable to understand the nature of the marriage
voidable marriage
valid until a judicial decree dissolves the marriage
what are the grounds for a voidable marriage?
- age
- impotence
- intoxication
- fraud
- duress
- lack of intent
equitable distribution of property in annulment
a party may request and equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage
treatment of children in annulled marriage
children of annulled marriage are considered marital children
what are the defenses to a void marriage?
the only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable
what are the defenses to a voidable marriage?
equitable defenses of:
- unclean hands
- laches
- estoppel
putative marriage/spouse doctrine
a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void
divorce and separation - residency requirement
most states require at least one party to be a resident of the state in which divorce/separation is sought
grounds for divorce - no-fault
- marriage is irretrievably broken and there is no prospect of reconciliation
- irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action
what are the various grounds for a fault divorce?
- adultery
- desertion
- cruelty
- desertion
- habitual drunkenness
- bigamy
- imprisonment
- institutionalization for insanity
fault grounds for divorce - adultery
it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence
fault grounds for divorce - cruelty
the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and makes the continued cohabitation between the parties unsafe or improper
fault grounds for divorce - desertion
results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent
fault grounds for divorce - habitual drunkenness
frequent intoxication that impairs the marital relationship (does not have to be alcoholism)
fault grounds for divorce - bigamy
when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage
fault grounds for divorce - imprisonment
imprisonment of one spouse for a specified period of time
fault grounds for divorce - institutionalization for insantiy
institutionalization for insanity with no reasonable prospect of discharge or rehabilitation
defenses to fault-based divorce
- recrimination
- unclean hands
- connivance
- condonation
- collusion
- provocation
- insanity
- consent
- justification
- religion
must be affirmatively pleaded
community property
most community property states require equal division of marital property
minority of states - AZ, CA, ID, LA, NV, NM, TX, WA, and WI
equitable distribution
the objective of an equitable distribution system is a fair distribution of marital property, not necessarily an equal division
most states
marital property - most states
all property acquired during marriage
marital property - some states
all property owned by either spouse
nonmarital property - burden of proof
the burden of proof is on the party asserting property is nonmarital
nonmarial property (separate property)
- property acquired before the marriage
- property excluded by the parties’ valid agreement
- property acquired by gift or inheritance (except for gifts between spouses)
- any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received
factors for distribution of marital property
- length of marriage;
- prior marriages;
- age, health, earnings, earning potential, liabilities, and needs of both spouses;
- contributions to education;
- income, medical needs, retirement of both spouses;
- homemaking and child-rearing services;
- value of separate property;
- reduction in valuation in marital property by one spouse;
- standard of living;
- economic circumstances of each spouse at the time of divorce;
- custody of any minor children
treatment of specific types of martial property - professional licenses/degrees
not a property interest, but can affect alimony
treatment of specific types of martial property - retirement or pension benefits
marital property if acquired during the marriage
treatment of specific types of martial property - personal injury claim proceeds/workers’ compensation award
some states: if the cause of action accrued during marriage, the proceeds or award are marital property
other states: allocate the proceeds or award between marital property and separate property
- damages for pain/suffering/disability - separate property for the injured spouse
- consortium losses - separate property of the non-injured spouse
- awards for lost wages, loss of earning capacity, and medical expenses - typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss wages or medical expenses after the termination of the marriage (separate property)
treatment of specific types of martial property - goodwill
the reputation and clientele of a professional practice is considered marital property in some states
treatment of specific types of martial property - accumulated sick and vacation days
states split on classification; depends on timing and nature
treatment of specific types of martial property - expectancy interest in property
not distributable
treatment of specific types of martial property - social security benefits
not subject to equitable distribution
treatment of specific types of martial property - post-separation property
can be marital property (most states)
treatment of specific types of martial property - unexercised stock options
marital property if acquired during marriage
tax consequences of equitable distribution
- transfer of property between divorcing spouses is tax-free
- transferee’s basis in property—same as transferor’s basis
modification of property division
not permitted; the property division is based on the parties’ assets at the time of the divorce
consortium losses
deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor
