Ending a marriage Flashcards
Ways to terminate a marriage
Annulment
Divorce
Death
Annulment
Voids a marriage (never existed at all)
Can be attacked by a 3rd party
Defense of bigamy
GF belief previous spouse was dead
Presumption of death arises 7 years after unexplained absence. If presumed dead spouse returns, the second marriage is void.
Strong presumption latest marriage is valid. Rebuttble by strong evidence of the existence of prior valid marriage at time second marriage was entered into.
What leads to a void marriage in NC
Bigamy
Voidable marriages in NC
Valid until challenged
There must be a judicial decree to dissolve the marriage
If parties cohabitate and a child is born, a spouse may seek to annul a voidable marriage only during the parties joint lifetimes.
Court recognizes equitable defenses: unclean hands, laches, estoppel etc.
Grounds for voidable marriage
Age, only the underage spouse may attack
Impotence: other party didn’t know of impotence when entered into marriage.
Incest: closer that 1st cousins or double first cousins
Representation of pregnancy: believed female pregnant, separate w/in 45 days of marriage, separation continuous for 1 year, and no child is born w/in 10 months.
Want of will or u/s (lack of capacity)
Legal consequences of annulment
No equitable distribution
No permanent alimony, but post-separation support and attorney’s fees may be available.
Child custody and support are not based on marital status, so unaffected.
Absolute divorce
Legal dissolution of marriage
Action can only be brought by a spouse
Claims for alimony and equitable distribution generally must be asserted before judgment of divorce entered into.
No effect on separate K rights
Grounds for absolute divorce
Incurable insanity
Separation for one year:
lived separate and apart for 1 year;
either party has resided in NC for 6 months;
venue is proper in county where either party resides;
JX with district court.
Fault does not matter for petition of divorce (may affect PSS)
Reconciliation will end restart 1 year period (isolated sex doesn’t count) it also voids a separation agreement.
Divorce from Bed and Board
Court ordered separation ; requires a finding of fault.
Doesn’t end the marriage, permits parties to live apart.
May receive permanent alimony, PSS & attorneys fees.
At least one party must be NC resident for 6 months
No waiting period for action
Grounds for divorce from bed and board
Abandonment: leaves marital home; w/out justification; w/out consent of other spouse & no intent to return.
Maliciously turning out: kick P spouse out of home
Cruel or barbarous treatment: D treats P so badly that endangers Ps life
Indignities: P life intolerable and burdensome
Drug or alcohol abuse: abuse makes life intolerable or burdensome
Adultry
Defenses to action for divorce from bed and board
Recrimination and unclean hands: spouse committed similar wrong
Condonation: forgiveness by P spouse of conduct in question (doesn’t apply for domestic violence)
Connivance: consent to participate in marital wrong
Collusion: fabricate grounds for divorce
Effect of reconciliation after divorce from bed and board
If parties reconcile effect of divorce from bed and board is destroyed. No legal action required.
