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Family Law > ending a marriage > Flashcards

ending a marriage Flashcards

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1
Q

annulment

A

voids a marriage and declares it as having never been valid

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2
Q

void marriage

A

treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose

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3
Q

what makes a marriage void?

A
  • 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
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4
Q

voidable marriage

A

valid until a judicial decree dissolves the marriage

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5
Q

what are the grounds for a voidable marriage?

A
  • age
  • impotence
  • intoxication
  • fraud
  • duress
  • lack of intent
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6
Q

equitable distribution of property in annulment

A

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

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7
Q

treatment of children in annulled marriage

A

children of annulled marriage are considered marital children

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8
Q

what are the defenses to a void marriage?

A

the only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable

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9
Q

what are the defenses to a voidable marriage?

A

equitable defenses of:
- unclean hands
- laches
- estoppel

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10
Q

putative marriage/spouse doctrine

A

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

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11
Q

divorce and separation - residency requirement

A

most states require at least one party to be a resident of the state in which divorce/separation is sought

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12
Q

grounds for divorce - no-fault

A
  • 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
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13
Q

what are the various grounds for a fault divorce?

A
  • adultery
  • desertion
  • cruelty
  • desertion
  • habitual drunkenness
  • bigamy
  • imprisonment
  • institutionalization for insanity
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14
Q

fault grounds for divorce - adultery

A

it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence

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15
Q

fault grounds for divorce - cruelty

A

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

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16
Q

fault grounds for divorce - desertion

A

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

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17
Q

fault grounds for divorce - habitual drunkenness

A

frequent intoxication that impairs the marital relationship (does not have to be alcoholism)

18
Q

fault grounds for divorce - bigamy

A

when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage

19
Q

fault grounds for divorce - imprisonment

A

imprisonment of one spouse for a specified period of time

20
Q

fault grounds for divorce - institutionalization for insantiy

A

institutionalization for insanity with no reasonable prospect of discharge or rehabilitation

21
Q

defenses to fault-based divorce

A
  • recrimination
  • unclean hands
  • connivance
  • condonation
  • collusion
  • provocation
  • insanity
  • consent
  • justification
  • religion

must be affirmatively pleaded

22
Q

community property

A

most community property states require equal division of marital property

minority of states - AZ, CA, ID, LA, NV, NM, TX, WA, and WI

23
Q

equitable distribution

A

the objective of an equitable distribution system is a fair distribution of marital property, not necessarily an equal division

most states

24
Q

marital property - most states

A

all property acquired during marriage

25
Q

marital property - some states

A

all property owned by either spouse

26
Q

nonmarital property - burden of proof

A

the burden of proof is on the party asserting property is nonmarital

27
Q

nonmarial property (separate property)

A
  • 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
28
Q

factors for distribution of marital property

A
  • 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
29
Q

treatment of specific types of martial property - professional licenses/degrees

A

not a property interest, but can affect alimony

30
Q

treatment of specific types of martial property - retirement or pension benefits

A

marital property if acquired during the marriage

31
Q

treatment of specific types of martial property - personal injury claim proceeds/workers’ compensation award

A

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)

32
Q

treatment of specific types of martial property - goodwill

A

the reputation and clientele of a professional practice is considered marital property in some states

33
Q

treatment of specific types of martial property - accumulated sick and vacation days

A

states split on classification; depends on timing and nature

34
Q

treatment of specific types of martial property - expectancy interest in property

A

not distributable

35
Q

treatment of specific types of martial property - social security benefits

A

not subject to equitable distribution

36
Q

treatment of specific types of martial property - post-separation property

A

can be marital property (most states)

37
Q

treatment of specific types of martial property - unexercised stock options

A

marital property if acquired during marriage

38
Q

tax consequences of equitable distribution

A
  • transfer of property between divorcing spouses is tax-free
  • transferee’s basis in property—same as transferor’s basis
39
Q

modification of property division

A

not permitted; the property division is based on the parties’ assets at the time of the divorce

40
Q

consortium losses

A

deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor

Family Law (6 decks)

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