Termination of Marriage Flashcards
Annulment
***Very rarely granted in GA
Available for defective marriages that are legally void or voidable.
*May be ratified if the impediment can be removed.
Grounds: bigamy, polygamy, consanguinity, insufficient age, incurable impotence, fraud, incompetence, duress.
*Annulment will NOT be granted if children are born or are to be born as a result of the marriage!!
Void Marriages
Fail to meet the essential requirement. Can be attacked by a third party. They are void from inception.
ex. Marriage to a sibling
Voidable Marriages
- Event or condition that affects the adequacy of consent to the marriage contract.
- Treated as valid until annulled.
- Can only be attacked by a party to the marriage.
- CAN be ratified.
ex. Marriage to a 17 year old with no consent
Effect of Annulment
The marriage is set aside as if it never existed. Alimony may still be awarded as in divorce cases. Child support and custody are handled the same as they would be in divorce cases.
Trier of Fact in Divorce/Separation Proceedings
-May be handled by judge or jury!
Grounds for Fault Based Divorce
- Adultery
- Desertion for a period of 1 year or more
- Cruel Treatment (denial of sex, accusation of adultery)
- Voluntary drug addiction or habitual intoxication
- Mental incapacity
- Conviction for an offense involving moral turpitude (under which there is imprisonment for 2+years)
- Incest
- Impotency at time of marriage (Has to be incurable and not merely temporary)
- Force, menace, duress, or fraud in obtaining the marriage.
- Pregnancy of the wife by a man other than her husband at the time of marriage, unknown to the husband.
- Incurable mental illness (VERY narrowly construed)
Defenses to Fault Based Divorce
- Collusion: an agreement to simulate grounds (If marriage irretrievably broken divorce can move forward even if parties continue to co-habitat.
- Connivance: willing consent to other’s misconduct
- Condonation: forgiveness (Ex. If spouse remains with cheating spouse after they’ve discovered an affair - Condonation is a defense to adultery
- Recrimination: similar to “unclean hands” doctrine
No Fault Grounds
The marriage is irretrievably broken with no possibility of reconciliation. (met where either or both say there is no possibility of cohabitation - 30 day waiting period)
Legal Separation in Georgia
Called Separate Maintenance
Marriage still exists, but property division and alimony awards may be accomplished, just as in divorce.
Division of Property
-GA is NOT a community property state!
-GA - Equitable division of marital property
On divorce, a court will divide property by:
1. Determining what is marital property and what is separate property.
2. Making an equitable division of marital property.
**Keep in mind, equitable does NOT mean equal!
Separate Property
Property owned prior to the marriage, any appreciation it has earned, and any additional separate property acquired through gift, bequest, devise, or descent.
Martial Property
Everything else that is not separate. Courts can order equitable distribution of this.
Mixed Property
- The property is both marital AND separate. Separate property may become marital if it is inextricably mingled with marital property or with the separate property of the other spouse.
- Commingling does not occur if the separate property can be traced into the new product.
Factors Considered in Equitable Division
WHO ARE THESE PEOPLE?
1. Age, education, background, earning capacity
2. Duration of the marriage/prior marriages
3. Party’s opportunity to acquire future income/assets
WHAT DO THEY HAVE
1. Each’s income (incl: employability)
2. Standard of living during marriage
3. Assets and liabilities
HOW DID THEY GET IT?
1. Source of the funds used to purchase the property
2. Contributions to the marital property
3. Contributions of a homemaker
WHERE SHOULD IT GO?
1. Health of the parties
2. Needs of the parties (physical/personal)
3. Provisions for the custody of children
4. Whether distribution is in lineu of or addition to spousal support
5. Marital fault (i.e., Adultery)
Pension RIghts in Division of Property
- Pension earned during the marriage is marital property. (Includes profit sharing, 401ks, etc.)
- It does not matter whether the non-employee spouse made a contribution to its acquisition
Professional Degrees and Licenses
- NOT marital property because they are considered too personal.
- BUT, the value of a professional practice (e.g., goodwill) can be divided, or taken into account in awarding other property to the other spouse
Personal Injury Actions (Tort Claims)
Pain/suffering/disfigurement - separate as to injured
Loss of Consortium - separate as to non-injured
Lost wages/med. expenses during marriage - marital
Lost wages/med. exp. after the marriage - separate as to injured
Spousal Support (Alimony)
May be awarded while the parties are still married, during the pendency of a divorce, or as part of the terms of the divorce decree.
- Based on the NEED, not awarded as of right. Purpose is to insure an adequate income stream for persons for whom economic deficiency has resulted, at least in part, from the marital relationship.
- Court had wide discretion
Permanent Periodic Alimony
Replicates support during marriage. Indefinite and at the discretion of the court.
- Duration: Ends at death of either spouse or remarriage of recipient. Cohabitation or meretricious relationship terminates it. (“Live in Lover Law”)
- Modification: upon material change in circumstances.
- ex. Alimony of 1k/month to wife until her death or remarriage
Lump Sum Alimony
Replicates present value of long-term support.
- Duration: Lasts for a specified time period. Can be payable in installments or in a lump sum. Does not expire at death of either spouse or remarriage.
- Modification: CANNOT MODIFY. Treated like a contract right.
- ex. the sum of 36k paid at a rate of 3k/month for 12 months
Rehabilitative alimony
Equitable remedy to get nonworking spouse back into the workplace.
- Duration: Lasts for a specified period unless modified by court. Ends at the death of either spouse or remarriage of the recipient. Cohabitation or meretricious relationship terminates it.
- Modification: Can be modified upon a material change in circumstances after the decree.
Reimbursement Alimony
Repayment for contribution to education where the contribution was made with the expectation of achieving a higher standard of living for the family unit, and the couple did not realize the expectation due to divorce.
-Duration: Distributed in lump sum or in installments at the discretion of the court.
Modification: CANNOT MODIFY - treated like a contract right
Factors to Consider in Determining Award of Spousal Support (Alimony)
- Duration of the marriage
- Standard of living during the marriage
- Financial resources of each party (including how marital property was divided, obligation to pay child support, etc.)
- Age and physical/emotional conditions of parties
- Contributions of each spouse to the marriage. (Includes homemaking and child raising)
- The time needed to get education or training to enable a party to find appropriate employment
- Ability to pay, while meeting own needs
- Conduct, including marital fault
*Adultery bars a spouse from receiving support (But only if it was the cause of the separation between the parties.)
Jurisdictional Requirement for Divorce Proceedings
-One party must be a bona fide resident of GA (6 month residency requirement before action may be filed). GA wants to avoid “suitcase divorces”
-In rem actions - Ga Domestic Long-arm statute - can bring claim in if nonresident:
1. maintains matrimonial domicile in GA at the time of the commencement of action or
resided in GA prior to commencement -whether cohabiting during that time or not
- Venue is proper in the county where the defendant resides. If the defendant is no longer a GA resident, it is where the plaintiff resides.
- ** When D is a GA resident venue is proper where he resided when the action BEGAN.
Modification for Division of Property Award by Court?
Generally no, but the awards can be reopened for the grounds which you can annul a judgment (e.g. Fraud)
Modification of Spousal Support?
- Only for substantial and material change in circumstances
- Has to affect need or ability to pay
- Does not apply to lump sum alimony or reimbursement alimony, as they are treated as contract rights
4 Types of Spousal Support
- Permanent periodic alimony
- Lump sum alimony
- Rehabilitative alimony
- Reimbursement alimony
Attorney Fees Paid by Opposing Spouse?
- It is within the court’s discretion to award attorney’s fees
- Purpose to ensure effective representation of both spouses so that all of the issues can be fully heard and fairly resolved
- Court considers financial circumstances of both parties. Not based on misconduct or wrongdoing of one of the parties.
Judge required to make findings of fact in divorce trial?
No - not required to make findings of fact in a nonjury trial unless requested to do so by one of the parties prior to the entry of the written judgment.
