Termination of marriage Flashcards
Ways to terminate marriage
Death
Annulment
Divorce
Annulment
Voids marriage as if it never happened.
Annulment & void marriages
Void marriages are not legally recognizable for any purpose.
Anyone can attack a void marriage, not just parties to marriage.
A void marriage doesn’t need a judicial adjudication.
Void marriages:
1. prior existing marriage (already married)
- mental incapacity (doesn’t understand nature of the marriage contract)
- Incestuous marriage (direct/half blood, ascendants, descendants, siblings, aunt/uncle, niece/nephew)
Annulment and voidable marriages
Voidable marriages are valid until adjudicated void by the court.
Only the parties to the marriage can seek annulment of a voidable marriage.
Voidable marriage is valid until judicially dissolved.
Voidable marriages:
1. Age: under the age of consent to marry, unless minor continued to feely cohabitate w/ other spouse after age of majority.
- Impotence: naturally & incurable impotent, unless other party knew of this before marriage.
- Intoxication: either party under influence of drugs/alcohol, making party incapable of entering into marriage K, unless continue to cohabitate
- Fraud, misrep, duress, coercion, or force: fraud or misrep must go to “essence of marriage” & based on present facts.
- essence of marriage doesn’t include fortune or character.
- if parties continue to freely cohabitate after fraud, no longer voidable. - Lack of intent: shame or joke, unless consummated.
- limited purpose marriage, like for immigration purposes.
Distribution of property or alimony after annulment
FL law is unclear on division of property after annulment.
Most cts put parties in same position as they were prior to marriage.
Alimony is NOT available.
-Temporary alimony, may be available during pendency of annulment.
Defenses to annulment
Recrimination: equal unclean hands
Condonation: forgiveness of spouse
Laches: waited too long to bring suit
Ratification: cohabitation after discovering defect
Children & annulment
Not considered marital children if born to a void or voidable marriage that’s later annulled.
Divorce
Legal dissolution of marriage
Grounds for divorce
- Irretrievably broken
- Need testimony of at least 1 spouse
- uncontested/no minor chilren: judgment of dissolution must be entered if ct finds sufficient evidence marriage is irretrievably broken.
- contested/minor children: ct may (1) continue proceeding up to 3 months for reconciliation, (2) order counseling, or (3) order conduct in best interest of child. - Incapacity
- Spouse must be adjudicated mentally incompetent for at least 3 years prior to filing.
Divorce defense
Only defense is to deny grounds to divorce
Divorce jurisdiction
Subject matter jurisdiction
-Residency req: at least 1 spouse mut be resident of FL for 6 months before commencing action, or ct will consider a party’s intent to make FL principal residence & reasons for absence.
Personal jurisdiction
- notice of compliant required*
- minimum contacts,
- physical presence,
- property in the state, or
- consent.
Ex parte (divisible) divorce
Ct with SMJ over divorce & PJ over 1 spouse can grant divorce but cant determine property division, alimony, child support, or child custody.
Proper court for a divorce
Circuit court.
County court for simplified dissolution proceedings.
- Reqs: (1) no minor children of marriage, (2) wife isn’t pregnant, (3) assets & debts amicably divided, and (4) parties agree marriage is irretrievably broken.
- Parties must file a financial affidavit, financial disclosures, and draft of settlement agreement.
- This waives trial & appeal.
Venue in divorce
Proper in county in which couple last lived together as a married couple, OR in county where the defendant resides.
Full faith and credit w/ divorce
As long as it’s an action FL recognizes.
FL does not recognize judicial separation and divorce from bed and board.
