Ending a Marriage Flashcards
What are the two ways to end a marriage?
- Annulment (void or voidable marriage)
2. Divorce and separation
What is the effect of an annulment?
Annulment voids the marriage and declares it as having never been valid.
What is the difference between a void and voidable marriage?
A void marriage is treated as if it never happened. There is no need to be judicially dissolved. The marriage is not legally recognized for any purpose.
A voidable marriage is valid until judicial decree dissolves the marriage.
Nam three type of void marriages?
- Prior existing marriage*
- Incest
- Mental incapacity
Name some (6) bases under which a marriage is voidable
- Age
- Incompetence
- Intoxication
- Fraud
- Duress
- Lack of intent
What are a spouses rights (property and other) following an annulment?
A party may request equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to dissolution of the marriage.
What happens to children conceived during a marriage that is subsequently annulled?
They are considered marital children
What is the defense to stop the annulment of a void marriage?
The only defense is to deny the existence of the impediment. Removing the impediment makes the marriage voidable.
What are three defenses to stop the annulment of a voidable marriage?
Equitable defenses of:
- Unclean hands
- Laches
- Estoppel
What is the putative marriage doctrine?
A party who participated in ceremonial marriage and believes in good faith that marriage is valid may use the state’s divorce provisions even if marriage is determined to be void.
What are the two types of grounds for a divorce?
Fault and no-fault
What is required for a no-fault divorce?
- Marriage must be irretrievably broken and there is no prospect of reconciliation
- Ground must exist for specific period of time prior to filing of divorce action
Name (seven) grounds for a fault divorce
- Adultery
- Cruelty
- Desertion
- Habitual drunkenness
- Bigamy
- Imprisonment
- Institutionalization for insanity
How does one raise a defense to a fault-based divorce?
Defenses to fault-based divorce must be affirmatively pleaded
Name (ten) defenses to fault-based divorce
- Recrimination
- Unclean hands
- Connivance
- Condonation
- Collusion
- Provocation
- Insanity
- Consent
- Justification
- Religion
What are the two types of jurisdictions for division of property following the dissolution of a marriage?
- Community property (equal distribution) (minority)
2. Equitable distribution (majority)
What characterizes community property jurisdictions?
These states require equal division of marital property
AZ, CA, ID, LA, NV, NM, TX, WA, and WI
What is the objective of equitable distribution jurisdictions?
Fair distribution of marital property, taking into consideration all circumstances between the parties. This is not necessarily equal distribution of marital property.
What is the majority definition of marital property?
All property acquired during marriage
What is the minority definition of marital property?
All property owned by either spouse (“hotchpot” approach)
What is nonmarital property (i.e. separate property)? (Four things)
- Property acquired before marriage
- Property excluded by parties’ valid agreement
- Property acquired by gift or inheritance
- Award / settlement payment for cause of action / claim that accrued before the marriage
Name (eleven) factors a court will consider in distributing marital property.
- Length of marriage
- Prior marriages
- Age, health, earnings, earning potentials, 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 time of divorce
- Custody of minor children
How are professional licenses and degrees treated for purposes of marital property?
They are not property interest, but can affect alimony
How are retirement and pension benefits treated for purposes of marital property?
They are marital property if acquired during marriage
How are personal injury claim proceeds / workers’ compensation awards treated for purposes of marital property? (Two approaches)
Some states – if cause of action accrued during marriage, they are marital property
Other states – allocation between marital and non-marital property (e.g., damages for pain and suffering are separate property of injured spouse; consortium loss is separate property of non-injured spouse; awards for lost wages, medical expenses, etc. are marital property)
How is goodwill and reputation/clientele of professional practice treated for purposes of marital property?
It is marital property (some states)
How are accumulated sick days and vacation days treated for purposes of marital property?
States split on classification / timing
How are expectancy interests in property treated for purposes of marital property?
Not property interest, so separate
How are social security benefits treated for purposes of marital property?
Not subject to equitable distribution
How is post-separation (pre-divorce) property treated for purposes of marital property?
Marital property (most states)
How are unexercised stock options treated for purposes of marital property?
Marital property if acquired during marriage
What are the tax consequences of equitable distribution?
Transfer of property between divorcing spouses is tax-free
Transferee’s basis in property is the same as the transferor’s basis
