III. Termination of marriage

Question 1

Void marriage

Answer 1

Void marrigage is a complete nullity. Any interested parties may seek annulment of a void marriage, and may be subject to collateral attack even after death of one of the parties.

NOTE: Under UMDA, where impediment causing marriage to be void is removed, marriage become valid if parties continue to cohabit.

1. grounds:
   
   1. bigamy
   2. consanguity
   3. nonage (some states)
2. effect:
   
   1. cannot be ratified
   2. complete nullity even wo Ct order
   3. any interested party may seek annulment
   4. subject to collateral attack

Question 2

Voidable marriage

Answer 2

Deemed invalid, but bc an impediment existed at the time of marriage, one of the spouses may bring action to have marriage declared invalid. If spouse ratifies by continuing relationship after impediment is removed, or spouse dies, marriage can no longer be invalidated.

1. Grounds
   
   1. nonage (most states)
   2. incurable physical impotence - NOT inabiity to have children
   3. lack of capacity - (i) lack of understanding due to mental condition, (ii) lack of mutual assent, (iii) duress, (iv) fraud going to essentials of marriage
2. Defense:
   
   1. ratification

Question 3

Divorce

Answer 3

Decree of divorce terminates marital relationship.

1. No-fault divorce - require showing
   
   1. irretrivable breakdown
   2. *living separate and apart *
   • defense: denial of grounds
2. Fault grounds
   
   1. adultery
   2. desertion
   3. extreme cruelty (mental/physical)
   4. voluntary drug addiction
   5. habitual drunkeness
   6. insanity
   • defense: collusion, connivance, condonation, recrimination

Question 4

Legal separation

Answer 4

An order of legal separation does not terminate marriage, but parties may have rights regarding property, spousal support, custody, and child support adjudicated in a proceeding.

Question 5

Jurisdiction and recognition of decrees

Answer 5

1. Residency requirements - one of the parties must be domiciled in J where action is brought. Most state set durational residency requirement bf action can be filed
2. In Rem action - certain types of constructive servive permitted. Ct must have PJ over D to have J over spousal support
3. Recognition of decree - Full Faith and Credit
4. Comity - Ct likely to recognize foreign decrees if party was domiciled in country redering judgment

Question 6

Division of property***

Answer 6

1. Community property - all property acquired during the marriage is deemed owen 1/2 by each spouse, an all property brought into or acquired by gift/bequest is separate property.
2. Equitable division of all property - all property acquired before or after
3. Equitable division of marital property - each spouse takes his separate property and Ct divides the property acquired during marriage

Factors considered under EDMP

1. age, education, background, earning capacities
2. duration of marriage
3. standard of living during marriage
4. present income of both parties
5. source of money used to purchase property
6. health of both parties
7. assets, debts, liabilities
8. need
9. child custody provisions

Question 7

Separate property

Answer 7

Each spouse can take the separate property that she owned prior to the marriage as well as separate property acquired during marriage by gift, bequest, or descent.

Question 8

Marital property

Answer 8

All other property acquired during marriage = subject to equitable distribution by Ct.

1. pensions
2. professional license - not distributable property, but some Js compensate supporting spouses for contribution
3. damage awards from tort suits
4. stock options

Question 9

Mixed property

Answer 9

Separate property become martial property if:

1. separate property is inextricable mingled w marital property to the extent it cant be traced,
2. treated in a way that show an intent for property to be marital property

• if separte property is improved by martial funds, Ct hold property remains separate property, but grant reimbursement for value added

Question 10

Spousal support

Answer 10

Spousal support may be awarded whiled married, during divorce proceeding, and as part of divorce decree. Marital fault not considered in most states.

1. Amount - Ct has greate discretion. Factors: (i) duration of marriage & standard of living (ii) age & physical condition of parties, (iii) financial resources, (iv) contribution. etc.

2. Types of spousal support

1. Permanent periodic spousal support
   
   1. paid regularly for the lifetime of recipient
   2. terminate upon death/remarriage
   3. modifiable upon SCS
2. Rehabilitative
   
   1. paid regularly for a limited period of time
   2. terminate upon death or remarriage
   3. modifiable upon SCS
3. **Lump sum **
   
   1. payable all at once or in a series of payments
   2. nonmodifiable
4. Reimbursement spousal support
   
   1. fixed sum for supporting spouse to obtain pro degree/license
   2. nonmodifiable

Question 11

Child support***

Answer 11

Both parent have equal duty to support children. Determined by number of children, age and special needs, parent’s incomes.

1. Independent from visitation rights
2. terminates when upon child’s emancipation
3. not includible income/deductible for tax purposes

Question 12

Modification of spousal and child support

Answer 12

1. Spousal award - only periodic spousal support may be modified - substantial change in circumstances (must be unanticipated)
2. Child support - subtantial change of circumstances. factors:
   
   1. change in employment, growth of child, infaltion, income, retirement, illness.
   2. under fed FFCCSOA, full faith and credit must be given to child support orders of a Ct in another state.
3. Overdue payment not modified

Question 13

Enforcement of awards

Answer 13

Spousal support and child support awards may be enforced by holding nonpaying party in contempt of Ct.

1. Uniform Interstate Family Support Act (UIFSA)

1. enforcing support order - income withholding order may be mailed to (i) obligor’s out-of-state employer or (ii) support enforcement agency in obligor’s state
2. modifying support order - Ct that issues the controlling childe support order has continuing and exclusive Jto modity it. Role of another state isonly to enforce it unless;
   
   1. paties no longer reside in issuing state; or
   2. parties consent in record

Question 14

Mediation

Answer 14

Mediator must explain the mediation process, including right to independent counsel, ensure informed decisionmaking, be impartial, and control power imbalances

Question 15

Separation agreements

Answer 15

An agreement entered into during marriage under which parties agree to live apart and resolve economic issues and custody rights. To be enforceable it must be (i) voluntary and (ii) full and fair disclosure.

1. Child custody and support provisions enforce only if in child’s best interest (CBI)