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Flashcards in 3 - dissolving the marriage Deck (17)
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1

dissolving the marriage

annulment
divorce and separation

2

dissolving the marriage
annulment

Annulment is a declaration that a marriage is invalid.
Annulment is available for defective marriages that are legally void or voidable.

3

dissolving the marriage
annulment
void

Void marriage (probably impediment to marriage)
1. Fails to meet the essential requirements, so invalid
2. Can be attacked by one of the parties OR collaterally by a 3rd party (IRS, insurance)
3. May or may not be remedied by continued habitation after removal of the impediment.
Uniform Marriage and Divorce Act (UMDA) and some states permit the marriage to be valid after removal of the impediment (after death of prior spouse)

4

dissolving the marriage
annulment
voidable

Voidable marriage (probably lack of capacity
1. Event or condition affecting adequacy of consent
2. Treated as valid UNTIL annulled
3. Can be attacked ONLY by or on behalf of a party to the marriage and in some cases only by the party who is sought to be protected
4. Marriage can be ratified by continued cohabitation after removal of the infirmity.
examples: effects of drugs/alcohol wear off, too young spouse becomes age of majority

5

dissolving the marriage
annulment
effects of annulment

1. The marriage is set aside as if it never existed.
2. Children remain legitimate
3. Child support can be awarded
4. Spousal support may be awarded, but not in all states.
5. Property generally treated as if never married; put spouses in their "premarital" state

6

dissolving the marriage
divorce

jdx, grounds for divorce, defenses to divorce, legal separation

7

dissolving the marriage
divorce
jdx

1. Only 1 of the spouses must be domiciled in the state seeking to enter the divorce
2. Generally, if the spouse is a resident of the state for a minimum period of time, there is a presumption he is domiciled there and the court will have jdx
3. Compare jdx for the court to determine financial issues. Court must have personal jdx over both parties.
NOT FIRST TO FILE. More than 1 state can have jdx over the divorce. Cases can proceed in both states. Once one state renders judgment, the other will lose SMJ.

8

dissolving the marriage
divorce
grounds for divorce

no-fault divorce and fault-based divorce

9

dissolving the marriage
divorce
grounds for divorce
no-fault divorce

1. Allows for dissolution of marriage w/o regard to marital fault.
2. Generally can be allowed on proof of: (3 ways)
a. irreconcilable differences (may require both spouses agreement to get divorced)
b. living separate and apart for a specified period of time (if spouses agree, it is generally a shorter period; if unilateral, then time can be longer
c. incompatibility

10

dissolving the marriage
divorce
grounds for divorce
fault-based divorce

1. adultery
2. desertion or abandonment for a specified time
3. cruelty
4. habitual drunkenness or drug commencing AFTER marriage
5. insanity

11

dissolving the marriage
divorce
grounds for divorce
fault-based divorce
adultery

1. often proven by circumstantial evidence of OPPORTUNITY and INCLINATION to commit adultery
2. corroboration of adultery often required

12

dissolving the marriage
divorce
grounds for divorce
fault-based divorce
desertion or abandonment

Unjustifiable departure from the marital home for a specified period w/no intent to return
Abuse is a justifiable departure

13

dissolving the marriage
divorce
grounds for divorce
fault-based divorce
cruelty

Cruelty can be physical or mental

14

dissolving the marriage
divorce
grounds for divorce
fault-based divorce
habitual drunkenness or abuse of drugs commencing AFTER marriage

Habitual drunkenness or abuse of drugs commencing AFTER marriage
If it happened before marriage, then you knew what you were getting into.

15

dissolving the marriage
divorce
grounds for divorce
fault-based divorce
insanity

Insanity may require that the spouse was institutionalized.

16

dissolving the marriage
divorce
defenses to divorce

no-fault - traditional defense generally unavailable (one spouse can claim reconciliation to restart the time clock for living separate and apart
fault-based:
1. collusion (parties agreed to simulate grounds for divorce)
2. connivance (P willingly consented to the other spouse's misconduct)
3. condonation (P forgave the marital offense w/full knowledge of the offense)
4. recrimination (P is also guilty of marital fault - doctrine of unclean hands)

17

dissolving the marriage
divorce
legal separation

1. Often permitted for the same grounds as divorce
2. May be called "divorce from bed and board" but is really just legal separation
3. Effect of legal separation: Still married, but parties can seek to have their rights regarding property, spousal support, child support, and child custody decided
4. Court MAY permanently divide marital property when legal separation granted. If so, after acquired property is SEPARATE PROPERTY. If no property division, property will be divided when and if divorce granted.
5. Done for religious reasons, because elderly, or to keep status for insurance or tax benefits.