Termination of Marriage Flashcards
Annulment
a declaration that a marriage is invalid due to an impediment at the time of the marriage.
For what kind of marriages is an annulment an option?
marriages which are void or voidable.
When is a marriage void?
when the marriage fails to meet the requirements for marriage.
Who can argue that a marriage is void?
spouses or a third party.
How can a void marriage be remedied?
continued cohabitation after removal of the impediment.
When is a marriage voidable?
when an event or condition affects the adequacy of consent to a marriage contract. An impediment at the time of the marriage allows one of the parties to bring an action declaring the marriage void.
A voidable marriage is treated as valid until . . .
it is annulled.
Who can argue that a marriage is voidable?
only a spouse
How can a voidable marriage be remedied?
continued cohabitation after removal of the infirmity.
What are examples of a voidable marriage?
spouse is underage, incurable physical impotence, lack of capacity, fraud.
What is the effect of an annulment on children of that annulled marriage?
there is no effect. The children are still legitimate.
Can child support be paid by a spouse to an annulled marriage?
yes
Can spousal support be paid by a spouse to an annulled marriage?
yes
What happens to property when a marriage is annulled?
the property is treated as though the two people never married.
In order for a court to have jurisdiction over a couple wishing to get divorced, what must be present?
one of the spouses must be domiciled in the state where the court is sitting.
For a court to determine property and financial issues in a divorce, the court must have what?
personal jurisdiction over BOTH parties.
Can more than one state have personal jurisdiction over a divorce?
yes, and whichever comes to a conclusion first is determinative.
What are the two general categories of divorces?
no-fault divorces and fault divorces
What are the grounds for a no-fault divorce?
irreconcilable differences; living apart for a long enough time; incompatibility
What are the grounds for a fault divorce?
Adultery; desertion; cruelty; habitual drunkenness; and insanity.
For a showing of grounds for a fault divorce based on adultery, what must be shown?
the non-cheating spouse must show 1) opportunity; and 2) inclination.
Adultery is usually proved using ___________ evidence.
circumstantial.
What is the only real defense against a no-fault divorce action?
reconciliation between the parties.
What are the defenses against a fault divorce?
collusion; conivance (consent); condemnation (forgiveness); recrimination (unclean hands)
Collusion
the fraudulent simulation of grounds for divorce.
When will a couple be allowed to legally separate?
under the same grounds as of divorce.
In a legal separation, is the couple still married?
yes
Can property and child support issued by decided if a couple is merely separated?
yes
Where a couple is legally separated, property acquired by either spouse after the separation is . . .
separate property
In an equitable division of marital property, each spouse takes what?
each spouse takes their separate property and an *equitable share of the marriage property.
Equitable does not necessarily mean ___________.
equal
Property distribution decrees are not ________________.
modifiable
Is property which is titled in spouse A’s name but which was acquired during the marriage separate or marital property?
marital property. Title does not effect it if it was acquired during the marriage.
Individual retirement accounts are what kind of property?
separate property
Specific bequests, devises, and gifts are what kind of property?
separate property
Property acquired in exchange for property acquired before the marriage is what kind of property?
separate property. If A exchanges his bike that he had before the marriage for something else, the thing he exchanged it for is separate property.
Income and appreciation of separate property is what kind of property?
separate property
Civil damages awarded to one spouse are what kind of property?
separate property.
Property acquired by a spouse after an order of legal separation is what kind of property?
separate property
Must marital property be acquired by both spouses together?
no, it can be acquired by only one of the spouses
Marital property can only be acquired during what time period?
during the marriage
When can marital property no longer be acquired?
after a final divorce decree
Pension rights, stock options, retirement rights, and benefits of employment are what kind of property?
marital property
What are the ways that separate property can be turned into marriage property?
by 1) commingling the property; 2) by the intent of the parties; 3) improvement of separate property using marital funds; 4) property acquired before the marriage but paid for after the marriage.
Are pensions separate or marital property?
marital property, even when the other spouse did not contribute.
Where property is acquired before marriage but paid for after marriage, how will it be distributed upon divorce?
the court will apportion the property according to the separate and marital funds used to pay for the property.
Are professional degrees or licenses marital or separate property?
separate property
Is a property division a taxable event?
no
Can a court’s property division be modified?
no, it is final.
The division of marital property during divorce is also referred to as . . .
equitable division
Alimony
payments of money made to an economically dependent spouse.
How many types of alimony can a court require a former spouse to pay to the other spouse?
as many as the court decides.
What are the four types of alimony?
1) permanent periodic support; 2) lump sum support; 3) rehabilitation support; 4) reimbursement support.
Can permanent periodic support be modified?
yes
What is the difference between lump sum support and a permanent periodic support?
permanent periodic support is permanent, whereas lump sum support is a sum being paid in installations over a period of time.
Can lump sum support be modified?
no
Can rehabilitation support be modified?
yes
When will rehabilitation support be paid?
when the spouse receiving the support needs to gain education or skills.
Is rehabilitation support permanent?
no
When is reimbursement support paid?
when the supported spouse has gained education or skills that the supporting spouse should have contributed to.
Spousal support is modifiable in ____________________________________ affecting the needs of the recipient spouse or the ability of the other spouse to pay.
substantial and material change of circumstances
Where a supporting spouse voluntarily reduces their income, what result on the spousal support they are paying?
the spousal support will remain the same.
What terminates periodic payment of support?
the remarriage of the supported spouse or the death of either spouse.
Where a supporting spouse dies, what is the effect on their paying lump sum support?
it remains. Lump sum support survives death.
Can a supporting spouse claim a tax deduction based on payments of support to a spouse?
yes
Separation agreements require what?
consideration
In a separation agreement, a court will not be bound by a couple’s contract regarding what?
children
What is the effect of submitting a separation agreement with a divorce decree?
the divorce decree is merged with the separation agreement and the two become one document which can be modified by the court.
If you want to be able to modify your separation agreement, what is the best course of action?
you should submit it alongside your divorce decree so as to make it modifiable.
If a separation agreement is not submitted with a divorce decree, what is the result?
the agreement is a mere contract subject to contract law.
A separation agreement is basically a type of __________.
contract
Can a void marriage be remedied?
only if the impediment is removed and the couple continues to cohabitate. A void marriage is a complete nullity. The spouses can walk away from each other at any moment after a marriage is declared void.
Can spousal support be reinstated if a spouse’s subsequent marriage is also terminated?
no
What are the three approaches the dividing property in the event of divorce?
community property; equitable division of all property; and equitable division of marital property.
Property which was gained before the marriage but which was paid for during the marriage is what kind of property?
it is partially marital property and partially separate property.
There is a rebuttable presumption that the state granting the divorce to a spouse is . . .
the bona fide domicile of the spouse.
