Ending a Marriage

Question 1

What is an annulment?

Answer 1

Voids a marriage and declares it as having never been valid.

Question 2

How is a void marriage treated?

Answer 2

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

Question 3

What are the three things that trigger a void marriage?

Answer 3

Prior existing marriage
-> the later marriage is void
-> rebuttable presumption of validity of the latest marriage

Incest
-> a prohibition on marriage between related persons

Mental capacity
-> a person who is unable to understand the nature of the marriage contract (e.g., duties and responsibilities) lacks the capacity to marry

Question 4

How do a minority of states handle a potentially void marriage due to a prior existing marriage?

Answer 4

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

Question 5

How is a voidable marriage treated?

Answer 5

Valid until a judicial decree dissolves the marriage.

Question 6

What are the grounds to make a marriage voidable?

Answer 6

Grounds:
- age
- impotence (inability to consummate the marriage)
- intoxication
- fraud
- duress
- lack of intent

Question 7

What may a party to an annulment request to be equitably distributed?

Answer 7

A party may request an equitable distribution of
-> property,
-> spousal support,
-> child support,
-> custody,
-> attorney’s fees,
AND
-> other costs related to the dissolution of the marriage.

Question 8

What are children of an annulled marriage considered to be?

Answer 8

Marital children so they have all the rights and duties of such a status.

Question 9

What is the defense to a void marriage?

If the defense is successful, what does it make the void marriage into?

Answer 9

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

Removing the impediment makes the marriage voidable

Question 10

What are the defenses to a voidable marriage?

Answer 10

Equitable defense of
-> unclean hands,
-> laches,
AND
-> estoppel are recognized

Question 11

What is the putative marriage/spousal doctrine?

Answer 11

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.

Question 12

What is the residence requirement for a divorce or separation?

Answer 12

Most states require at least one party to be a resident in order for that state to preside over the divorce.

Question 13

What is the ground for a no-fault divorce?

Answer 13

Marriage is irretrievably broke and there is no prospect of reconciliation

Question 14

Is there a time requirement baked into the ground for having a no-fault divorce?

Answer 14

Irreconcilable differences must exist for a specific period of time PRIOR to the filing of the divorce action

Question 15

What are fault grounds for divorce? What must the moving party show?

Answer 15

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

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 this makes continued cohabitation between the parties unsafe or improper

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

Habitual drunkenness -> frequent intoxication that impairs the marital relationship

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

Imprisonment -> of one spouse for a specified period of time

Institutionalization for insanity -> with no reasonably prospect of discharge or rehabilitation

Question 16

What are defenses to fault-based divorces?

Answer 16

Must be affirmatively pleaded

-> recrimination - other party committed same acts as person pleading defense
-> unclean hands - other party played an unethical role in the reason for divorce
-> convince - convince court that claims of fault against them are wrong
-> condonation - other party approved of acts as they were happening
-> collusion - spouses worked together to create a fault ground for the divorce
-> provocation - opposing party provoked the person into committing the act
-> insanity - defending party claims they didn’t understand the act was legally wrong
-> consent - opposing party consent to what defending party did
-> justification - defending party was justified in what they did
-> religion - defending party was justified in what they did because of their religion

Question 17

What states recognize community property?

How does community property work?

Answer 17

AZ, CA, ID, LA, NV, NM, TX, WA, and WI

Most community property states require EQUAL division of marital property

Question 18

How does equitable distribution of property work?

Answer 18

Most states

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

Question 19

What is marital property? Is there a difference between majority and minority states?

Who has the burden of proof in asserting what the property is or is not?

Answer 19

Most states
-> all property acquired during the marriage

Some states
-> all property owned by either spouse (“hotchpot” approach)

Question 20

Who has the burden of proof in asserting what the property is or is not?

Answer 20

The burden of proof is on the party asserting property is non marital -> assumption starts with all property being marital property

Question 21

What are the different categories of non-marital property?

Answer 21

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

Question 22

What are the factors for distribution of marital property?

Answer 22

length of marriage
prior marriages
age
health
earnings potential
liabilities
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 time of divorce
custody of any minor children

Question 23

How do you treat specific types of marital property?

-> professional licenses/degrees
-> retirement or pension benefits
-> goodwill
-> accumulated sick and vacation days
-> expectancy interest in property
-> social security benefits
-> post-separation property
-> unexercised stock options

Answer 23

Professional licenses/degrees -> not a property interest, but can affect alimony

Retirement or pension benefits -> marital property if acquires during the marriage

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

Accumulated sick and vacation days -> states split on classification, timing

Expectancy interest in property -> not distributable

Social security benefits -> not subject to equitable distribution

Post-separation property -> can be marital property (most states)

Unexercised stock options -> marital property if accrued during marriage

Question 24

How do you treat specific types of marital property?

-> personal injury claim proceeds/ workers’ compensation award

Answer 24

Personal injury claim proceeds/workers’ compensation award

-> some states - if the cause of action accrued during the marriage, the proceeds or award are marital property

-> other states - allocate the proceeds to award between marital property and separate property
—-> damages for pain/suffering/disability - separate property of 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 of wages or medical expenses after the termination of the marriage (separate property)

Question 25

What are the tax consequences of equitable distribution?

Answer 25

Transfer of property between divorcing spouses is tax free

Transferee’s basis in property -same as transferor’s basis

Question 26

Are modifications allowed in property division?

Why?

Answer 26

Not permitted

Property division is based on the parties’ assets that the time of divorce