Ending a Marriage

Question 1

How may a valid marriage be terminated?

Answer 1

1. Annulment
2. Divorce
3. Death

Question 2

What is the affect of an annulment?

Answer 2

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

Question 3

Under what circumstances can a marriage be deemed void?

Answer 3

1. If either party had a valid prior existing marriage, in which case the later marriage is void.
   
   1. UNLESS the impediment is removed, in which case the later marriage will be valid from that date if they continue to cohabit and one or both entered into the subsequent marriage in good faith in the full belief that EITHER
      
      1. the former spouse was dead;
      2. the former marriage had been annulled or terminated by divorce; OR
      3. without knowledge of the former marriage.
2. The marriage consists of incest (first-cousins included).
3. At least one party lacked the mental capacity to enter into the marriage at the time the contract was executed.
4. If either party was under the age of 18 and entered into a common-law marriage.

Question 4

Under what circumstances will a marriage be deemed voidable?

Answer 4

1. If either person is under the age of 16 and did not obtain permission from the court to marry.
2. If the parties were 16 or 17 and did not obtain parental consent or court approval.
   
   1. Annulment must be filed within 60 days, which is not done merely by turning 18 within 60 days.
3. If one party is naturally and incurably impotent, unless the other party knew before they got married.
4. If either party was under the influence of drugs or alcohol and the action is commenced within 60 days.
5. If one party was induced to enter the marriage through fraud, duress, coercion, or force, UNLESS the affected party continues to voluntarily cohabit with the other spouse after
   
   1. learning of the fraud OR
   2. being released from the effects of the fraud, duress, coercion, or force.

Question 5

What are the practical differences between a void marriage and a voidable one?

Answer 5

A void marriage need not be judicially dissolved and was never valid.

A voidable marriage must be judicially dissolved and was void until it was annulled.

Question 6

How does an annulment affect property distribution?

Answer 6

The party seeking the annulment has a right to

• request an equitable distribution of any marital property,
• seek alimony,
• seek child support,
• seek custody, and
• seek attorneys’ fees and other costs associated with the annulment.

Question 7

What is a divorce?

Answer 7

A legal dissolution of a marriage.

Question 8

What are the different grounds for divorce?

Answer 8

1. No-fault
   
   1. Bilateral no-fault
   2. Unilateral no-fault
2. Fault
   
   1. Adultery
   2. Cruelty
   3. Desertion
   4. Bigamy
   5. Imprisonment
   6. Indignity
   7. Institutionalization

Question 9

What is bilateral no-fault grounds for divorce?

Answer 9

1. Both parties mutually consent to the divorce and
2. affirm the consent by affidavit, which
3. alleges that the marriage is irretrievably broken an there is no prospect of reconciliation.
   
   1. 90 days must pass from commencement of the action.
   2. A person who is convicted of a personal injury crime against the other party is presumed to have consented.

Question 10

What is unilateral no-fault grounds for divorce?

Answer 10

If an affidavit confirms that

1. both parties have lived apart for at least one year, commencing when one spouse communicates to the other their intent to dissolve the marital relationship and
2. the marriage is irretrievably broken.

N.B.: This does not require that the parties live separately.

Question 11

What burdens does a party seeking a fault-based divorce have?

Answer 11

1. To establish the requirements under the fault-based ground AND
2. to establish that they are the innocent and injured spouse.

Question 12

What is adultery and how can it be proven?

Answer 12

The voluntary sexual intercourse with somebody other than one’s spouse. Can be proven by circumstantial evidence if the party seeking the divorce can prove that the other party had the opportunity and inclination to commit adultery.

Question 13

What constitutes cruelty?

Answer 13

1. Physical abuse if there is physical harm;
2. Mental abuse if it arises to the level of impairing a spouse’s health.

Question 14

What constitutes desertion?

Answer 14

1. One spouse
2. voluntarily
3. leaves the marital home
4. without cause
5. for one year.

OR

1. One spouse
2. forces the other out of the marital home and
3. fears harm if the spouse returns.

Question 15

What constitutes bigamy?

Answer 15

1. One party to the marriage
2. knowingly entered into a prior legal marriage
3. that still existed at the time the party entered into the subsequent marriage.

Question 16

What constitutes imprisonment?

Answer 16

An innocent spouse can seek divorce upon the other spouse’s conviction of a crime and a sentence of two or more years imprisonment.

Question 17

What constitutes indignity?

Answer 17

One spouse exhibits negative behavior toward the other, rendering the other spouse’s condition intolerable aand life burdensome.

1. Can include vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, or violence.
2. A single incident is generally insufficient.
3. A gay relationship is sufficient if it is so open and notorious to the public that it is sufficiently serious to bring continued shame and humiliation on the innocent spouse even if it’s not adulterous.
4. Poor communication must be really really bad, like no talking for two years.

Question 18

What constitutes institutionalization?

Answer 18

1. A spouse’s insanity or serious mental condition
2. results in a spouse being confined to a mental institution for at least 18 months
3. before the action is commenced,
4. with no reasonable prospect of discharge within 18 months.

Question 19

What defenses exist to fault-based grounds for divorce?

Answer 19

1. Recrimination
   
   1. Complete defense when both spouses committed a marital wrongdoing of like conduct.
2. Connivance
   
   1. Complete defense to adultery when one party consents of or participates in the marital wrong (usually adultery)
3. Condonation
   
   1. Complete defense to adultery when one spouse knows of the misconduct, forgives, and resumes marital relations. Not likely to be successful for other grounds.
4. Collusion
   
   1. Both spouses conspired to fabricate grounds for divorce.
5. Provocation
   
   1. If misconduct was provoked by moving party.
6. Insanity
   
   1. One spouse does not know the difference between right and wrong or lacks ability to understand that an act is wrongful.
7. Consent
   
   1. Defense to desertion or adultery.
8. Justification
   
   1. Defense to desertion when one party left the home because of the other’s misconduct.