Termination of Marriage

Question 1

What is an annulment?

Answer 1

Declaration that the marriage is invalid as a result of a legal impediment at the time of marriage. Effect is generally as if never married. Available for defective marriages which are either legally void or voidable?

Question 2

What marriages are legally void?

Answer 2

Technically do not need an annulment, as these are void ab initio

These fail to meet the essential requirements of marriage (one spouse already married/too closely related) and can be attacked by either spouse or collaterally by an interested third party (sometimes the IRS or insurance company)

Uniform Marriage and Divorce Act and some states allow a marriage to become valid if the impediment is removed (e.g., prior spouse dies)

Question 3

What is a voidable marriage?

Answer 3

A voidable marriage is subject to an event or condition affecting the adequacy of a party’s consent and is valid until annulled. Can only be attacked by or on behave of a party to the marriage (sometimes only by the affected party). May be ratified by continued cohabitation after removal of infirmity

Voidable includes voidable for incurable physical impotence

Question 4

What is the legal effect of an annulment?

Answer 4

Marriage set aside
Children remain legitimate
Child support can be awarded
Spousal support can be awarded in some states
Property generally treated as if the two never married (restore parties to premarital state)

Question 5

What is a no-fault divorce?

Answer 5

Allows for the dissolution of marriage without regard to fault (there may be fault@ but it isn’t litigated).

Proof of

(1) irreconcilable differences, and/or
(2) living apart for a specified time period (state dependent)

Question 6

What are the types of fault based divorce?

Answer 6

(1) adultery — often proven by circumstantial evidence of (a) opportunity and (b) inclination
(2) desertion/abandonment — unjustified departure from marital home for specified period with no intent to return
(3) cruelty (usually requires proof of pattern or practice)
(4) Habitual drunkenness or drug abuse commencing after marriage
(5) insanity

Question 7

What are the defenses to divorce?

Answer 7

No fault — usually no defenses except reconciliation can restart the time on living separately

Fault —

(1) collusion — agreed to fake the grounds
(2) connivance — spouse consent to the misconduct
(3) condemnation — spouse forgave the misconduct
(4) recrimination — other spouse also guilty of marital fault/unclean hands

Question 8

What is legal separation?

Answer 8

Often permissible on same grounds as divorce and while parties remain married they can seek to have rights regarding property, spousal support, child custody and support decided. If court permanently divides marital property, all subsequently acquired property is separate property.

Question 9

What are the 3 main approaches to division of property on divorce?

Answer 9

(1) community property — all marital property split in half and all property owned prior to marriage is separate
(2) equitable division of all property
(3) equitable division of marital property (most common) — separate property remains with each spouse

Question 10

What are the steps of property distribution?

Answer 10

(1) classification — which property is marital and which is separate
(2) equitable division (not equal but may be)

Question 11

Are property distribution decrees modifiable?

Answer 11

No

Question 12

What factors are considered in dividing property?

Answer 12

Age, education, background and earning capacities of each spouse
Duration of marriage
Standard of living during marriage
Present incomes, skills and employability of each spouse
Source of money used to purchase property
Health of parties
Assets, debts and liabilities
Parties’ needs
Child custody provisions
Spousal support
Opportunity to acquire future income
Contribution to marriage (both as earner and at home)
Dissipation of marital property

Question 13

What is separate property?

Answer 13

(1) all real and personal property owned by spouse before marriage (including assets held in individual retirement accounts)
(2) Property acquired at any time by gift/inheritance
(3) property acquired at any time in exchange for either property acquired before marriage or as a gift/inheritance
(4) income from and appreciation of separate property
(5) pain and suffering awards, victim of crime compensation, future medical expenses, future lost wages
(6) property acquired after disposition of property in legal separation

Question 14

What is marital property?

Answer 14

Includes

(1) all property acquired by both/either during marriage
(2) including the value of vested and invested pension, stock options, retirement and employment benefits accrued during marriage
(3) recover in personal injury, workers’ comp, SS disability actions and the like for wages lost during marriage, reimbursement for medical expenses paid for with marital property and property damage to marital property

Question 15

When can otherwise separate property become marital property?

Answer 15

(1) through commingling (when inextricably intertwined, like dumped in same bank acct)
(2) transmutation — turns into marital property based on intent of parties
(3) improvement of separate property — when separate property is improved by the use of marital funds or by the efforts of either spouse the non-owning spouse is usually owed reimbursement for value added

Question 16

Is property acquired before marriage but paid for after marital property?

Answer 16

Courts are split — majority view is that it should be apportioned in proportion to the contribution of separate vs. marital funds to pay for it

Question 17

Are pensions marital property?

Answer 17

Yes, if earned during marriage. Subject to division even if a non-working spouse did not contribute

Question 18

Is a professional license marital property?

Answer 18

No, but some jurisdictions consider it in awarding alimony

Question 19

What are the tax consequences of property division?

Answer 19

Not a taxable event

Question 20

What are the means of dividing property?

Answer 20

In kind and contribution

Question 21

What are the types of spousal support?

Answer 21

Permanent periodic — paid regularly for the lifetime of the recipient/to support a spouse who has neither the resource nor the ability to be self-sustaining

Rehabilitative — periodic payments for a limited period of time to allow a spouse to gain the skills to become self-supporting

Lump sum — a fixed amount payable at once or in a series of installments

Reimbursement — to a spouse who supported the other while they obtained a professional license or degree/lump sum one time, based on amount of contributions not value of degree

Question 22

What factors are considered when awarding alimony?

Answer 22

Duration of marriage
Standard of living established during marriage
Age, physical, and emotional condition of the spouses
Financial resources of each
Contribution to the marriage
Time needed to obtain necessary training for appropriate employment
Ability to pay while still meeting own needs
Some jurisdictions considered marital fault in awarding alimony

Question 23

When can spousal support be modified?

Answer 23

Permanent and rehabilitative support are modifiable based on a substantial change in circumstances. Lump sum and reimbursement awards are not modifiable

Question 24

When does spousal support terminate?

Answer 24

Permanent and rehabilitative support terminate on death or remarriage (in some states also on entering into a cohabiting relationship)

Lump sum and rehabilitative survive the death of either spouse

Question 25

What are the tax consequences of spousal support?

Answer 25

Current: not deductible to payor, not income to recipient

Pre-2019 agreements: deductible to payor and income to recipient unless agreement updated/modified to conform to new rule

Question 26

When are separation agreements enforceable?

Answer 26

Voluntary with full and fair disclosure by both parties
Child custody and support provisions do not bind the court and are only enforced if in the child’s best interest
Consideration = mutual promise
Permissible on same grounds as divorce

Question 27

What is the effect of a separation agreement?

Answer 27

Parties still married, but can seek to have property division, spousal support, child custody and child support decided

Question 28

When does a divorce decree merge the separation agreement and what is the effect?

Answer 28

If a divorce decree states that the separation agreement is merged, then the whole agreement is enforceable as a court judgment. If not merged, it is enforceable as a contract

Incorporation by reference is generally insufficient to create merger

Question 29

What is the effect on marital property of a separation agreement?

Answer 29

If the separated couple seeks a court division of property, then after acquired property will be separate property. If no final property division occurs, then property will be divided when divorce is granted

Question 30

How is child support awarded?

Answer 30

Generally using a formula based on the number of children, their ages and special needs and parents’ incomes

Parents may also be required to provide medical insurance

Question 31

Can visitation rights be withheld because of failure to pay child support?

Answer 31

No, the child support obligation is independent of visitation rights

Question 32

When do child support duties terminate?

Answer 32

Child’s emancipation, child’s marriage, termination of parental rights,or death of support parent

May continue indefinitely if child is severely disabled

Some courts require payments up to a certain level of education, though others have held requiring a parent to pay for college is unconstitutional

Question 33

What are the tax consequences of child support?

Answer 33

Not income to payee, not deductible to payor

Question 34

Is child support modifiable?

Answer 34

Yes based on substantial change in circumstances affecting either the needs of the child or the parent’s ability to pay

E.g., employment changes, inflation, retirement, disabling illness

Past due installments of child support are not modifiable

Question 35

What is the effect of the Full Faith and Credit for Child Support Orders Act?

Answer 35

Full faith and credit must be given to the child support orders of a court in another state

Question 36

How are child support and spousal support orders enforced?

Answer 36

Contempt of court (usually civil, only criminal if nonpayment is willful)
Also: judgment against party, seizure of real estate, attachment of wages, payment of attorneys’ fees
May be enforced through automatic wage withholding, interception of tax return, or refusal of professional or driver’s license

Question 37

What are the methods of enforcing or modifying a support order from another state

Answer 37

From Uniform Interstate Family Support Act

Enforcing: income withholding order mailed to out-of-state obligor’s employer, or the state’s support enforcement agency. Registration of support order in another state may occur through court action.

Modifying: Court issuing controlling support order has continuing and exclusive jurisdiction to modify it. The role of a court in another state is only to enforce unless (1) parties no longer reside or (2) consent in a record to non issuing court’s jurisdiction

Question 38

What are a mediator’s duties?

Answer 38

Explain the process, including parties’ right to independent counsel
Ensure enough info for informed-decision making
Impartial and disclosure of potential bias
Control for power imbalance between parties