Ending a marriage- annulment and divorce Flashcards
Two ways to end marriage
annulment and divorce.
Annulment
always predicated on grounds that predate the marriage. Looks backward from day of ceremony.
a. At TIME OF MARRIAGE—there was problem that one or didn’t know of.
b. Usually issue of capacity. One or both lacked capacity
c. Grounds for annulment: less serious grounds make marriage voidable, more serious grounds make the marriage void.
MARRIAGE CAN BE VOID OR VOIDABLE
ii. Voidable grounds:
non-age, mental incapacity- including temporary, disease of mind, developmental disability, senile demential, incurable physical impotence, duress, or fraud (not including money)
Void grounds
bigamy and incest
Ways to VOID a marirage
- bigamy, incest
i. If marriage is void, you’re not married.
1. But may still want to get the optional annulment to clarify the record. Or to adjudicate collateral issues, maybe some money/ goods you may fight over
2. Chief grounds:
a. Bigamy—no capacity to marry. Ground is not voidable. It is void.
b. Consanguinity—incest. Void, not voidable. Not waivable
i. List of what counts as incest varies from state to state
1. Cannot marry ancestors/ descendents. No matter how far back.
2. Cannot marry siblings, even if only 1 parent in common.
3. Cannot marry aunt/ uncle and nieces and nephews.
a. But CAN marry great aunts/ uncles
4. First cousins—most states allow first cousins to marry
Ways a marriage is VOIDABLE
ii. If marriage is voidable unless/until you go to court to anul. Chief grounds:
non-age, mental incapacity- including temporary, disease of mind, developmental disability, senile demential, incurable physical impotence, duress, or fraud
- Non-age. One party is too young. Must be 18 y/o. some states letyounger teens get married with parental consent.
a. Waivable if parties continue to cohabit (live together and have sex) after the party comes of age.
b. Can only anul until party turns 18, if at 19 you want to break up → get divorce - Mental incapacity—4 types
a. Can be entirely temporary and due to intoxication (must be very very drunk/ on drugs) – deemed to be waived if you continue to cohabit after you sober up
b. Disease of mind—schizo, hallucinations etc.
i. Removed when illness is cured/managed.
c. Developmental disability—i.e. mental retardation.
i. Impediment wont really be removed. Disability wont go away. Always voidable.
d. Senile dementia /alzheimers—also wont go away. No waiver.
e. Must litigate through guardian because you do not have capacity otherwise - Incurable physical impotence—never tested.
a. Inability to have sex.
b. Only valid if you refrained from sex until wedding night.
c. Nothing to do with ability to make babies. Not a capacity issue.
d. 70 y/os and gay people can marry.
e. Must be incurable, not a temporary problem.
f. Doesn’t have to do with being cold and aloof towards spouse, not issue of mental cruelty. That would be a divorce issue. - Duress—
a. For example. Dad gets gun and forces someone who knocked his daughter up. Cannot be a shotgun wedding.
b. Once threat of violence is gone, but you keep cohabiting, grounds for annulment are lost - Fraud—prior to the marriage, one party misrepresents or conceals from the other information that goes to essential aspect of marriage. Waivable.
a. Big lie or big secret. Not small secrets/ lies.
b. Discretionary for the court
c. For example. Husband is a nazi. This is a big lie.
d. For example. Lying about religion- yes goes to essential aspect.
i. Lying about how strongly you follow the religion (like whether you keep kosher) also grounds for annulment.
e. For example, lying about procreation is also grounds for annulment. Like whether you can have/ make babies. But only if not apparent on face of things, like if under the age of 50.
i. Or if you have genetic disorder giving high risk of birth defects→ grounds for annulment.
f. For example, matters of sex. Like lying about sexual history.
i. Must be big lie. Like the fact that wife/husband used to be sex worker.
ii. Like lying about sexual proclivities. Like have crazy sex fantasies. Waivable.
g. For example, lying about money or property or social status are NOT GROUNDS for annulment.
i. Like I make 150k but really make 40k
ii. Or that he has properties all over Europe.
iii. Law assumes people do not get married to improve financial/social status. ABSURD people always do this. except we think it’s tacky to say “I was in it for the money”
Collateral remedies after annulment
iii. After annulment one party may ask for collateral remedies
1. Many jurisdictions, almost all allow property divisions
2. Many jurisdictions do not allow alimony after annulment because not a true marriage.
Divorce and difference from annulment
looks forward from date of marriage. Issue arises after they walk down the aisle.
Common grounds for fault divorce
adultery, desertion, physical cruelty, mental cruelty, miscellaneous grounds
a. Historically marital misconduct = grounds for divorce. Marital misconduct no onger required. States have retained fault grounds in conjunction with no fault. Fault grounds lets you get out without waiting period. Downsides→ other party can contest grounds.
i. Adultery.
ii. Desertion—unjustified departure from marital home for continuous statutorily specified period, usually 1 year.
1. Leaving for good reason is justified.
2. Leaving to escape for abuse is justified, not a deserter
3. Cannot aggregate different disappearances.
iii. Phsyical cruelty—domestic violence. Single episode is enough in most courts.
1. Wasn’t always like that. Some courts though there wasn’t enough violence.
2. Minor shove—court MAY deny this.
iv. Mental cruelty—elastic. Lots of behavior.
1. Persistent abusive language
2. Constant ridicule/ denigrating.
3. Silent treatment
4. Refusal of physical intimacy.
v. Miscellaneous grounds
1. Other spouse stops bathing
2. Conviction of felony – grounds for divorce. Some states say incarceration must be at least 1 year, some states say longer
3. Drug addiction or continuous drunkenness
a. Some states say it must be voluntary. E.g. being hooked on painkillers after back surgery is not enough
b. How long is continuous/ habitual drunkenness—discretionary. Just weekends- may or may not be enough.
How to defend fault-divorce suit
- 3 affirmative defenses—
condonation, connivance (entrapment), or recrimation (dirty hands)
a. condonation—the other spouse waives the grounds by condoning the action. Usually connected to adultery. 3 part showing (knew of conduct + forgave + resumed cohabitation)
iv. But if case involves physical violence—very hard to find condonation.
b. Connivance (entrapment basically) – π spouse is alleged to induce the misconduct to get the fault divorce (maybe to help in alimony amount)
i. Π spouse hires prostitute and detective.
c. Recrimination (dirty hands) – if you want an equitable remedy, your hands must be clean.
i. Divorce is an equitable remedy.
ii. He who wants equity must do equity.
iii. Π spouse is guilty of misconduct. Like offsetting claims of adultery.
trend against recrimation
No fault divorce
b. Every state now has no fault divorces.
i. No fault divorce is not a divorce without grounds. Ground is irretrievable breakdown of the marriage. Irretrievably broken.
Most jurisdictions, proven in only one way→ proof of separation for statutorily prescribed period.
- Some jurisdictions—enough to separate to just stop sharing beds.
- Period varies-
a. If both spouses agree- bilateral/ mutual consent. Period is relatively short. Some states it can be just six weeks.
b. If only one spouse wats out—unilateral no fault. Law requires longer time. Some states say 9 mos, can be 1 yr or 2 years.
3. During period of marriage = still married.
a. Cannot have sex w others→ adultery
b. Cannot have sex with spouse→ this resets period.
i. Celibacy for a year.
Legal separation AKA limited divorce
court order authorizing living separate and apart, to cease cohabitating. Adjudicate collateral issues and alimony and child custody. Leaving marriage intact. 2 reasons for this
i. Keeping marriage intact has monetary or pragmatic reasons. Like joint income tax, or joint insurance. Or benefits under social security laws.
ii. Or religious scruples, divorce is unacceptable
iii. Grounds are usually the same as divorce grounds
1. Many states have one extra ground—non-support. Like if you are dependant on spouse that gives you little/ no money and are completely a prisoner, grounds for separation.
Procedure for divorce
a. Is given state proper forum for divorce
i. State has SMJ so long as one spouse is domiciled in that state and has met residency requirement (varies by state)
iii. If spouse A moves residency, how does that court have jurisdiction over spouse B?
1. Divorce considered an in rem proceeding, something that acts over an object based on forum state.
a. Marriage is in the state where a spouse is located
2. Not based on PJ over absent spouse.
iv. BUT if you want economic remedies, you need PJ. If you cannot get PJ in new state, must go back to state where Spouse B is located.
Conflict of laws and divorce
once state enters divorce decree all other states will give divorce full faith and credit.
i. American courts have discretion to respect acts of foreign decisions—comity.
ii. Usually if only one spouse participates in foreign divorce, American courts will not honor it.
iii. More likely to respect it if the country resembles USA legal system and is developed country.
1. Canada vs. Botswana.
