Termination of Marriage

Question 1

what is annulment

Answer 1

Annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred

A marriage can be annulled if it is void or voidable (a distinction that varies by state)

Question 2

what are grounds for annulment

Answer 2

Bigamy or polygamy — marriage is considered void
Consanguinity — marriage is considered void
Non-age — one spouse under statutory age at the time of marriage; voidable
Incurable physical impotence — inability to have normal sexual relations; voidable
Incapacity to consent — lack of capacity to consent to marriage can be due to lack of capacity or fraud/duress; voidable

Question 3

what’s the deal with spousal support during/after an annulment

Answer 3

many states allow for temporary support during the annulment suit, although fewer states allow for spousal support following an annulment

Question 4

how is property divided after an annulment

Answer 4

most courts attempt to divide property in such a way that puts parties in the position they were in before the marriage commenced

Question 5

what is the difference between fault and no-fault divorce

Answer 5

traditionally, divorce required proof of fault (i.e., permitted only if one party was at fault); while some states retain fault grounds, every state offers a form of “no-fault” divorce

Question 6

what are the different grounds that can be cited in filing for divorce

Answer 6

Irreconcilable differences — most common ground and the only ground in some states (in such states, the two additional factors below are merely evidence of an irretrievably broken marriage)
Living separate — parties have been living separate and apart for a given time (usually 6 months to one year)
Incompatibility

Question 7

what is the deal with legal separation

Answer 7

a legal parting that does not terminate the marriage

Not a divorce and does not terminate marriage; parties cannot remarry
- Parties seek to have rights regarding property, spousal support, custody, child support, etc. determined in a separation proceeding
- Can become an absolute divorce in some states at the request of the parties after a specified period of time

Question 8

what are the jurisdictional requirements to have a state court annul a marriage

Answer 8

a state where either party is domiciled has jx to enter an annulment decree

Most states also give jx to the court in the state where the marriage was entered into and recognized

Question 9

what are the jurisdictional aspects to have a state court give a decree of divorce

Answer 9

Residency requirement
Full Faith & Credit Clause (“FFCR”)

Question 10

what is the deal with residency requirements for a state to have jx to give a divorce

Answer 10

to establish jx over a divorce, one or both parties must be domiciled in the jx where the action is brought
- Some states require a minimum durational residency before the action can be filed; designed to prevent forum shopping

Question 11

what does the full faith and credit clause have to do with jx for divorce

Answer 11

under the Constitution’s FFCR, a divorce decree obtained in one state is recognized in other states as long as one or both parties was domiciled in the state that granted the decree

Question 12

what is a divorcing ct’s jx rights to deal with marital property/support

Answer 12

a court does not have jx to determine rights to property located outside the state or support decrees unless it has jx over both parties

Question 13

what are the two main approaches to division of property upon dissolution of a marriage

Answer 13

1) equitable division of marital property
2) community property

Question 14

what’s involved with the equitable division of marital property approach

Answer 14

each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis
- Most popular approach — assume this approach for MEE purposes unless provided otherwise

Question 15

what’s involved with the community property approach

Answer 15

property acquired during the marriage is 50-50 by each spouse, unless acquired by gift or bequest then it is considered separate property

Question 16

how will courts divide property between the ex-spouses

Answer 16

Categorize property — classify property as marital or separate

Determine equitable distribution of marital property — distributed between spouses based on relevant factors
- Note — if asked to divide marital property, make sure to discuss the approach and how it works, then how the relevant factors will influence how the court would divide the property

Question 17

are property distribution decrees modifiable

Answer 17

property distribution decrees are generally not modifiable in most states

Question 18

what is generally considered to be separate property

Answer 18

1) Before marriage — property acquired before marriage by either spouse
2) By gift or bequest — property acquired by gift, bequest, devise, or descent (i.e., family money) during marriage by either spouse
3) Separate property proceeds — property acquired with separate property proceeds by either spouse
4) Appreciation b/c of time — appreciation of separate property due to passage of time (as opposed to efforts of either spouse)

Question 19

what is generally considered to be marital property

Answer 19

generally includes all property acquired during marriage that is not separate property, regardless of who holds title
- Appreciation b/c of effort — appreciation of separate property due to efforts of either spouse is usually marital property
- Pensions — portion earned by one spouse during marriage is considered marital property
- Professional license or degree — in some states reimbursement may be ordered if one spouse provided support that contributed to the other spouse’s degree or license

Question 20

what is the deal with comingled property

Answer 20

separate property that is inextricably mingled with marital property or separate property of the other spouse can become marital property

Question 21

what is distribution of property

Answer 21

Once a court categorizes property as separate or marital, it equitably distributes marital property between both spouses

Courts have significant discretion in determining equitable distribution

Question 22

what are factors courts will consider in determining how property should be distributed bt ex-spouses

Answer 22

courts look at all relevant factors concerning how marital property was accumulated and each party’s needs going forward, including:
- Income, educational/vocational skills, employability of each party;
- Duration of the marriage;
- Standard of living during the marriage;
- Assets, debts, and liabilities of the parties;
- Obligations for support arising out of a prior marriage;
- Contributions made by each spouse towards accumulation of marital property (including contributions to the home/household);
- Needs of the parties;
- Provisions for custody of minor children;
- Whether distribution is in lieu of alimony/spousal support; and
- Health of the parties

NOTE: marital fault (e.g., infidelity) is NOT a factor