III. Termination of Marriage Flashcards
Ending
By annulment or divorce
When is annulment avilable
- defective marriages that are legally void or voidable depending on whether the impediment can be removed
- includes bigamy/polygamy, cosanguity, age, incurable physical impotence at marriage, lack of capacity, mental incompetence, durress, fraud
- may not be granted if children are born as a result of marriage
When is a void marraige null
- From inception
- fail to meet essential requirements, so invalid
- can be attacked by one of the parties or collaterally by a 3P
- cannot be ratified
Voidable Marriage
- Event or condition affecting adequacy of consent to marriage
- valid until anulled
- attacked by or no behalf of party to marriage and in some cases only by the party who is sought to be protected
- Can be ratified (by cohabitiation after rmeoval of infrimity)
Effect of annulment
marriage set aside as if it never existed
alimony may still be awarded
child support nad custody handled as in divorce cases
Method of Trail for divorce
can be judge or jury
Divorce Jurisdictional Requirement
one of hte parties msut be a bona fide resident of Georiga. 6 month residency requirement before actino can be filed
Full Faith and Credit for Divorce
As long as one was domiciled in the state divorce dceidced, recognized as valid in all other states
All other proivisoin given full faith and credit as long as court had PJ over defendant
In rem action for divorce
Domestic Relations Long arm statute.
Okay if divorce or action for support of defendants if non resident 1
- maintains a matrimonial domicile in GA at time of action; OR
2 resided in ga preceding the commencemnt of action
Grounds for Divorce: Fault Based
- Adultery
- Desertion for for a period of 1 year or longer without justificaiton
- Cruel Treatment
- Voluntary Drug Addiction
- Mental Incapcity
- Conviction for an offense involving moral turpitude under which a party is sectencned to prison for two years or longer
- Incest
- Impotency at time of marriage–incurable and not temporary
- force menace duress or fraud in obtain marriage
- pregnancy of wife by a man other than her husband, at the time of marriage that is unkown to husband
- icurable mental illness
Defenses to Fault based Grounds
- collusion–> agreement to simulate grounds for divorce
- connicance: willful consent by one spouse to other’s miscondunct
- Condenation–forgiveness with full knowledge of offense
- Rcrimination–Seeking party also guilty for a ground
No Fault Grounds
Marriage is irretrivably broken with no possibility of reconiliation
No longer live together
30 day waiting period–why fualt more attractive
Legal Separation
Sepearate maintenance–division of property and alimony may be accomplished
Dividing Property
Georgia not community property state
On Divorce, how court will dive property
- first determine what is seperate and what is marital
- THan make an equitable division of property
- equitable division DOES NOT MEAN EQUAL
Separate Property
Property owned prior to marriage, its appreaciation, and any additional separate prop acquired through gift, bequest, devise or descent
Marital Property
everything else. Court have authoirty to order equitable distribution of marital property
Mixed Property
proeprty that is both separate and amarital. May beomce marital if inextricably mingled with marital proper or with the separate property of the other spouse.
Factors to consider in making an equitable divsiion
- Who are these people?
- age education background earning capacity
- duration of marriage and if there were any prior marriages
- each party’s opportunty to acquire future income and assets
- What do they have?
- Each party’s income–includes employability
- Standard of living during the marriage, which includes a consideration of expenses
- assets and liabilities of each party
- How did they get it?
- source of funds to purchase property
- Contributions to the marital prop for each party (e.g. one does a lot to invest)
- Contributions of a home maker
- WHere should it go
- party health
- needs of hte party
- provisions for the custody of children*
- Distribution is in lieu of or in addition to spousal support award
- marital fault or other party conduct
Pension Rights
on spoue’s pension earned during the marriage is marital property subject to division
Professional degrees and licenses
Not marital prop. THeir value in professional practice can be divided or taken into account in giving an award
Personal injury actions
- Pain suffering and disfigurement of injured spouse is separate prop of injured spouse
- loss of consoritoum of non injured: seperate of non injured
- Lost wages and medical expenses during marriage: marital property
- Lost wages post marriage: sepearate of injured
Modification of divorce agreement
No, but may be reopened for traditional reasons you annul a judgment
Spousal Support Generally
- Alimony or maintenace may be awared while parties are still maried, during divorce, or as part of divorce. Either spouse may pay
- Based on need, not right.
- Ensure that an adequate income stream for persons for whom economic deficiency has resulted from in part the mariage
