Termination of Marriage

Question 1

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 states)

Question 2

Grounds for annulment

Answer 2

Considered voidable unless otherwise noted:
1. Bigamy or polygamy - marriage is considered void

2. Consanguinity - marriage is considered void
3. Non-age - one spouse under statutory age at the time of marriage
4. Incurable physical impotence - inability to have normal sexual relations

5. Incapacity to consent - lack of capacity to sent to marriage can be due to: 
// Mental incompetence (did not understand due to mental infirmity, drugs, alcohol) 
// Fraud or duress

Question 3

Spousal support under 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

Division of property under 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

Divorce

Answer 5

A divorce decree terminates the marriage relationship.

// Fault vs. no-fault - traditionally, divorce required proof of fault (permitted only if one party was at fault); while some states retain fault grounds, every state offers a form of “no-fault” divorce, which is what is discussed unless otherwise noted.

Question 6

Grounds for divorce

Answer 6

can be any or all of:

1. Irretrievably broke (aka irreconcilable differences) - most common grounds and the only ground in some states (in such states, the two additional factors below are merely evidence of an irretrievably broken marriage)
2. Living separate - parties have been living separate and apart for a given time (usually 6 months to one year)
3. Incompatibility

Question 7

Divorce defenses

Answer 7

Defenses to divorce exist in some states, but a court will not force a marriage to continue if one party wants a dissolution.

Question 8

Separation

Answer 8

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 9

Jurisdiction over annulment & divorce

Answer 9

Jurisdiction over marriage actions is vested in state courts

Question 10

Annulment jurisdiction

Answer 10

Annulment - a state where either party is domiciled has jurisdiction to enter an annulment decree

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

Question 11

Divorce jurisdiction

Answer 11

1. Residency requirement - 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

2. Full Faith & Credit Clause - 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

Marriage vs marital property jurisdiction

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

Division of property overview & approach

Answer 13

When property is divided upon marriage dissolution, there are two main approached used, depending on the state: (1) Equitable division of marital property or (2) Community property

Question 14

Equitable division of marital property

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

Community property

Answer 15

All property acquired during marriage is considered owned 50 - 50 by each spouse; all property owned prior to marriage or acquired by gift or inheritance is separate property

Question 16

Approach to property division overview

Answer 16

Court will do the following:
1. Categorize Property - classify property as marital or separate

2. 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 ti works, then how the relevant factors will influence how the court would divide the property

Question 17

Modification of property distribution decree

Answer 17

Property distribution decrees are generally not modifiable in most states

Question 18

Categorizing property

Answer 18

In categorizing property, courts must distinguish between separate and marital property.

Question 19

Separate property

Answer 19

generally includes:
/ Before marriage - property acquired before marriage by either spouse

/ By gift or bequest - property acquired by gift, bequest, devise, or descent (family money) during marriage by either spouse

/ Separate property proceeds - property acquired with separate property proceeds by either spouse

/ Appreciation because of time - appreciation of separate property due to passage of time (as opposed to efforts of either spouse)

Question 20

Marital property

Answer 20

generally include all property acquired during marriage that is not separate property, regardless of who holds title

/ appreciation because 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 21

Commingled Property

Answer 21

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

Question 22

Distribution of property

Answer 22

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 23

Distribution of property factors

Answer 23

Factors - court 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 marriage;

/ 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

XXX Fault as a factor - marital fault fo either spouse (infidelity) is not a relevant factor

NOTE: if a question asks you to divide property, be sure to utilize facts of the question in discussing relevant factors