Ending A Martiage Flashcards
Define Annulment
An annulment voids a marriage, and declares it as having never been valid
Define a void marriage
Avoid marriage is treated as if it never happened. It also does not need to be judicially dissolved. And not legally recognized for any purpose.
What are ways that a marriage may be void?
Prior existing marriage
Incest
Mental incapacity
If there was a prior existing marriage, what then occurs
The latter marriage is void
some states allow the marriage to become valid if one party had a good faith, belief that the marriage was valid, and the impediment is removed
Reputable presumption of validity of the marriage
What are the grounds for a voidable marriage?
Age, impotence, intoxication, fraud, duress, or lack of intent
True or false: children of an annulled marriage are considered marital children
True
What is a defense to a void marriage?
The only defense is to deny the existence of the impediment that makes the marriage void
Removing the impediment makes the marriage voidable
What are the defenses to a voidable marriage?
Equitable defenses of unclean, hands, laches, and estoppel are recognized
True or false at least one party must be a resident of the state they are seeking a divorce in
True
What are the grounds for divorce?
No fault or fault
What are the requirements for a no-fault divorce?
1) marriage is irretrievably broken, and there is no prospective reconciliation
2) reconcilable differences must exist for specific period of time prior to the filing of the divorce action
What are the grounds for a fault based divorce?
Adultery: must be shown that the spouse had the opportunity and the inclination to commit adultery
cruelty: must demonstrate a course of conduct by the other party that is harmful either physically or mentally, and that makes continue to cohabitation between the parties, unsafe or improper
desertion: results, when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis - does not apply if the parties consent
habitual drunkenness: frequent intoxication that impairs the marital relationship
bigamy: when a party knowingly entered into a legal marriage prior to the existing one
imprisonment:
institutionalization for insanity: with no reasonable, prospective, discharge or rehabilitation
What are defenses default based divorce?
Recrimination, unclean hands, connivance, consolation, collusion, provocation, insanity, consent, justification, religion
Define community property states
Community property states require equal division of marital property
Define equitable distribution
The objective of an equitable distribution system is a fair distribution of marital property not necessarily an equal one. Generally, it’s considered equitable division.
What is the general definition of marital property?
All property acquired during the marriage
Define non-marital property
Property acquired before the marriage
property excluded by the parties valid agreement
property acquired by gift or inheritance except for gifts between spouses
any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received
What factors does the court consider for distribution of marital property?
-Length of marriage
-Prior marriages
-Age & health
-Earnings and earnings
-Liabilities and debts
-Needs both spouses
-Contributions to education
-Income
-Medical needs
-Retirement to 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 the time of divorce
-Custody of any minor children
True or false: professional licenses, and degree are marital property
False, not a property interest, but can affect alimony
True or false retirement or pension benefits are marital property
Marital property is acquired during the marriage
True or false : Personal injury claim proceeds, or Work compensation awards marital property
Some states allow that if the cause of action occurred during the marriage, the proceeds are awards are marital property
Other states allocate the proceeds or award between marital property and separate property as follows
- Damages for pain, suffering or disability are separate property of the injured spouse
-consortium losses are separate property of the non-injured spouse
-Awards for lost wages loss of earning capacity and medical expenses are typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (martial) and the portion attributable to lost wages or medical expenses after the termination of the marriage (separate property)
True or false sick and vacation days may be marital property
True states are still split on classification and require timing considerations
True or false you are permitted to modify a property division after entered by the court
False you are not permitted to modify a property division
