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Family Law > Ending a Marriage > Flashcards

Ending a Marriage Flashcards

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1
Q

What are the two ways to end a marriage?

A
  1. Annulment (void or voidable marriage)

2. Divorce and separation

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2
Q

What is the effect of an annulment?

A

Annulment voids the marriage and declares it as having never been valid.

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3
Q

What is the difference between a void and voidable marriage?

A

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.

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4
Q

Nam three type of void marriages?

A
  1. Prior existing marriage*
  2. Incest
  3. Mental incapacity
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5
Q

Name some (6) bases under which a marriage is voidable

A
  1. Age
  2. Incompetence
  3. Intoxication
  4. Fraud
  5. Duress
  6. Lack of intent
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6
Q

What are a spouses rights (property and other) following an annulment?

A

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.

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7
Q

What happens to children conceived during a marriage that is subsequently annulled?

A

They are considered marital children

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8
Q

What is the defense to stop the annulment of a void marriage?

A

The only defense is to deny the existence of the impediment. Removing the impediment makes the marriage voidable.

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9
Q

What are three defenses to stop the annulment of a voidable marriage?

A

Equitable defenses of:

  1. Unclean hands
  2. Laches
  3. Estoppel
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10
Q

What is the putative marriage doctrine?

A

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.

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11
Q

What are the two types of grounds for a divorce?

A

Fault and no-fault

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12
Q

What is required for a no-fault divorce?

A
  1. Marriage must be irretrievably broken and there is no prospect of reconciliation
  2. Ground must exist for specific period of time prior to filing of divorce action
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13
Q

Name (seven) grounds for a fault divorce

A
  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual drunkenness
  5. Bigamy
  6. Imprisonment
  7. Institutionalization for insanity
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14
Q

How does one raise a defense to a fault-based divorce?

A

Defenses to fault-based divorce must be affirmatively pleaded

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15
Q

Name (ten) defenses to fault-based divorce

A
  1. Recrimination
  2. Unclean hands
  3. Connivance
  4. Condonation
  5. Collusion
  6. Provocation
  7. Insanity
  8. Consent
  9. Justification
  10. Religion
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16
Q

What are the two types of jurisdictions for division of property following the dissolution of a marriage?

A
  1. Community property (equal distribution) (minority)

2. Equitable distribution (majority)

17
Q

What characterizes community property jurisdictions?

A

These states require equal division of marital property

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

18
Q

What is the objective of equitable distribution jurisdictions?

A

Fair distribution of marital property, taking into consideration all circumstances between the parties. This is not necessarily equal distribution of marital property.

19
Q

What is the majority definition of marital property?

A

All property acquired during marriage

20
Q

What is the minority definition of marital property?

A

All property owned by either spouse (“hotchpot” approach)

21
Q

What is nonmarital property (i.e. separate property)? (Four things)

A
  1. Property acquired before marriage
  2. Property excluded by parties’ valid agreement
  3. Property acquired by gift or inheritance
  4. Award / settlement payment for cause of action / claim that accrued before the marriage
22
Q

Name (eleven) factors a court will consider in distributing marital property.

A
  1. Length of marriage
  2. Prior marriages
  3. Age, health, earnings, earning potentials, liabilities, and needs of both spouses
  4. Contributions to education
  5. Income, medical needs, retirement of both spouses
  6. Homemaking and child-rearing services
  7. Value of separate property
  8. Reduction in valuation in marital property by one spouse
  9. Standard of living
  10. Economic circumstances of each spouse at time of divorce
  11. Custody of minor children
23
Q

How are professional licenses and degrees treated for purposes of marital property?

A

They are not property interest, but can affect alimony

24
Q

How are retirement and pension benefits treated for purposes of marital property?

A

They are marital property if acquired during marriage

25
Q

How are personal injury claim proceeds / workers’ compensation awards treated for purposes of marital property? (Two approaches)

A

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)

26
Q

How is goodwill and reputation/clientele of professional practice treated for purposes of marital property?

A

It is marital property (some states)

27
Q

How are accumulated sick days and vacation days treated for purposes of marital property?

A

States split on classification / timing

28
Q

How are expectancy interests in property treated for purposes of marital property?

A

Not property interest, so separate

29
Q

How are social security benefits treated for purposes of marital property?

A

Not subject to equitable distribution

30
Q

How is post-separation (pre-divorce) property treated for purposes of marital property?

A

Marital property (most states)

31
Q

How are unexercised stock options treated for purposes of marital property?

A

Marital property if acquired during marriage

32
Q

What are the tax consequences of equitable distribution?

A

Transfer of property between divorcing spouses is tax-free

Transferee’s basis in property is the same as the transferor’s basis

Family Law (6 decks)

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