Marriage/Divorce Flashcards
Common Law Marriage
Elements:
1) Capacity: mental and legal capacity to marry
2) Present Agreement: both parties must intend to presently be married; an agreement to be married in the future does not meet this requirement
3) Cohabitation: the parties must live together
4) Holding Out a Marital Relationship: hold themselves out tot the public as “spouses”
Conflict of Laws Note: a marriage, including common law marriage, valid in one state will be valid in another state UNLESS it violates a strong public policy of the other state
Putative Marriage
Most jurisdictions have this doctrine.
Arises when an innocent party participated in a ceremonial marriage and believes in good faith that the marriage is valid, but they later discover that there was an impediment to the marriage (e.g., other spouse was still legally married to someone else).
The innocent party is the “putative spouse.”
Allows the party to seek legal remedies like spousal support and property distribution.
No-Fault Divorce
Every jurisdiction has a no-fault ground for divorce.
The typical standard is irreconcilable differences.
No required attempt at reconciliation.
Fault-Based Divorce
Grounds for Fault-Based Divorce:
1) Adultery: voluntary sexual intercourse with someone other than your spouse. The charging spouse must show both opportunity and inclination by the other spouse (can prove by circumstantial evidence).
2) Cruelty or Inhumane Treatment: cannot be just a one time incident; requires a course of conduct. Most jurisdictions look for physical harm; only some allow for divorce based on emotional abuse/cruelty. Must make cohabitation unsafe or improper.
3) Desertion: one spouse voluntarily leaves the marital home without cause or consent from the other spouse, with the intent to remain away permanently. Some jurisdictions also find desertion when a spouse forces the other spouse out and there is fear of harm if they return (i.e., constructive desertion).
4) Habitual Drunkenness: some states only. Applies if frequent habit of getting drunk causes impairment in the marriage. Alcoholism is not a requirement.
5) Bigamy: One party knowingly entered into a prior legal marriage before entering into the current marriage. Most jurisdictions–ground for annulment and grounds for divorce.
6) Imprisonment: imprisonment of one of the parties in the marriage may be grounds for an at-fault divorce if the imprisonment period is for a specified period of time.
7) Indignity: when one spouse exhibits negative behavior to the other that renders that spouse’s condition intolerable and their life burdensome. The majority of states DO NOT recognize indignity as a basis for at-fault divorce.
8) Institutionalization: if a spouse’s insanity or serious mental condition results in the spouse being confined t a mental institution for a specified time; prior to the commencement of the divorce; with no reasonable prospect of discharge or rehabilitation.
Mediation
Sometimes parties are required to engage in mediation as part of the separation and divorce process. The mediator must be impartial and disclose any conflicts of interest they might have. They must clearly explain the process and make sure the parties have all the information required. They must control the proceedings and not coerce or improperly influence a party to make a decision.
Defenses to Fault-Based Divorce
1) Recrimination and Unclean Hands: Both spouses commit a marital wrongful act of like conduct.
2) Connivance: then complaining spouse has given consent to participation in the marital wrong.
3) Condonation: Forgiveness for whatever wrongful act in which they were engaged. The forgiving spouse must have knowledge of the wrongful act and must resume marital relations after having that knowledge. At CL: once that misconduct is forgiven, it can’t be used as grounds for a fault-based divorce.
4) Collusion: both parties have conspired to fabricate grounds for divorce.
5) Provocation: the misconduct of the respondent is due to something the other spouse is doing.
6) Insanity: one spouse does not know the difference between right and wrong and lacks the ability to understand the act is wrongful.
7) Consent: consent to desertion or adultery.
8) Justification: one spouse leaves the home because of the other spouse’s misconduct.
9) Religion: challenges to a divorce on religious grounds will FAIL in all jurisdictions.
Equitable Distribution
Majority Rule
Requires an equitable, or fair distribution of all marital property. Not necessarily a 50/50 division. Takes into consideration all of the circumstances between the parties.
Community Property
Only 9 states have this.
Generally requires an equal division of the marital property.
Marital Property
Equitably divided between spouses.
All property or assets acquired DURING the marriage by means other than gift, descent, or devise.
Example: wages earned by spouses during marriage
In most states, marital property continues to accrue until a final divorce decree is entered.
Specific Types of Marital Property That’s Commonly Tested:
- Future retirement/pension benefits
- Professional licenses and degrees are NOT marital property BUT spouses can seek reimbursement for contribution to educational and living expenses.
- Personal injury claim proceeds if the cause of action accrues during the marriage (in some states ALL of it is MP; in other states, the compensatory damages are SP of injured spouse, consortium damages are SP of non-injured spouse, and lose wages/earning capacity and medical expenses are MP).
Separate Property
Generally remains the property of the owning spouse.
Includes assets acquired during marriage by gift, descent or devise, and anything acquired BEFORE the marriage.
Separate property can be transformed into marital property if marital funds or efforts are used to increase its value or build equity.
Distribution of Marital Property Factors
1) How long was the marriage?
2) Were there prior marriages?
3) What are the economic circumstances of each spouse? (e.g., ages, health, retirement, earning potential and capacity, needs)
4) Contributions to the education or career advancement of the other spouse
5) Their needs for future acquisitions
6) Income, medical needs, retirement of both spouses
7) What is the value of any separate property?
8) Was there a reduction in the value in marital property by one spouse?
9) Economic circumstances of each spouse at divorce
10) Custodianship of any minor children
Modification of Property Division Awards
Once a property division occurs, it CANNOT be modified!
Changes in circumstances after divorce are not considered once the property division award is entered.
