Annulment, Divorce, and Dissolution

Question 1

Annulment is…

Answer 1

… a judicial declaration that a marriage never existed and was invalid from when the parties entered into it.

A marriage can be annulled if it is void or voidable.

Question 2

Common grounds for an annulment include:

Answer 2

Lack of capacity to consent at the time of the marriage (e.g., mental incapacity, influence of drugs or alcohol, inducement by force/duress/fraud, etc.);

Lack of capacity to physically consummate the marriage by sexual intercourse;

Underage minors without parental consent or judicial approval; AND

Marriages prohibited by law (e.g., bigamy, incest, etc.).

Question 3

Ratification

Answer 3

may be a defense to an annulment action involving voidable marriages. A void marriage (e.g., bigamy or incest) can never be ratified. Generally, ratification occurs when the party seeking annulment fails to bring the annulment action within a reasonable amount of time after discovering the defect.

Question 4

Traditionally, divorce was only permitted if…

Answer 4

… one party was determined to be at fault (e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony convictions).

Question 5

Today, some states have completely abolished

Answer 5

fault as a ground for divorce; however, every state has adopted a form of no-fault divorce.

Question 6

Common grounds for a no-fault divorce are:

Answer 6

A minimum duration of separation (usually 6 months to 1 year);

AND/OR

Irreconcilable differences.

NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other.

Question 7

Jurisdiction over marital actions is vested…

Answer 7

…solely in the state courts (federal courts do not have subject matter jurisdiction over domestic relation matters).

Question 8

Under the majority view, a state where either party is domiciled has jurisdiction to…

Answer 8

… enter an annulment decree.

Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.

Question 9

Are divorces granted in one state valid in another state?

Answer 9

Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states.

Question 10

Generally, a divorce is valid and must be recognized by other states if the petitioning party:

Answer 10

Was domiciled in the state that granted the divorce (regardless of whether that court had personal jurisdiction over the other spouse);

AND

Provided adequate notice of the proceeding to the other spouse.

Question 11

What is divisible divorce?

Answer 11

Under the concept of divisible divorce, a distinction is made between the marriage and the marital property. A state does NOT have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant spouse.

Note, however, from July 2014 MEE:

UIFSA does not apply to divorce property-division disputes. Thus, although a State A court may
not adjudicate the husband’s petition to modify his child support obligations, it
may adjudicate his property-division claims. (Even though the court has jurisdiction, it may not
modify the property-division award on the merits. See Point Two(c).)

Question 12

How is property divided upon divorce?

Answer 12

Some follow community property approach, while most states follow equitable distribution approach. Both approaches involve:

1. Categorize the property as separate or marital;

THEN

2. Determine an equitable distribution of the marital property between the spouses.

Question 13

At divorce, under either approach, the court must categorize all property owned by the spouses as either…

Answer 13

… separate property of each spouse or marital property owned jointly by both spouses. Generally, a court CANNOT divide separate property at divorce.

Question 14

Separate property generally includes:

Answer 14

All property acquired by either spouse BEFORE marriage;

All property acquired by a spouse during marriage by gift, bequest, devise, or descent;

All property either spouse acquires with the proceeds of the spouse’s
separate property;

AND

All passive appreciation of separate property (appreciation in value due to the passage of time rather than the efforts of either spouse).

Question 15

Marital property generally includes…

Answer 15

… all property acquired during marriage (regardless of who holds title) that is NOT separate property.

Question 16

What is Active appreciation? How is it categorized upon divorce?

Answer 16

Active appreciation = appreciation in value due to the efforts of either spouse

active appreciation of separate property is usually categorized as marital property.

Question 17

In almost every state, professional degrees and licenses are considered…

Answer 17

… separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license.

Question 18

Once the court categorizes the property as either separate or marital, the court will then

Answer 18

equitably distribute the marital property between both spouses.

Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce

Question 19

General factors in distributing marital property include

Answer 19

The income, property, and liabilities of each party;

The duration of the marriage;

The obligations for support arising out of a prior marriage;

The lifestyle each spouse is accustomed to;

The contributions made by each spouse toward the accumulation of marital property (including contributions as a homemaker).

NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in the division of marital property.

Question 20

Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination) UNLESS

Answer 20

exceptional circumstances exist (e.g., fraud).

A property-distribution award divides assets of the marriage based on the equities at
the time of divorce. Because the past can be ascertained, a property-division award is not subject
to post-divorce modification

Question 21

What are other words for spousal support?

Answer 21

Maintenance
Alimony

Question 22

When and how is spousal support awarded?

Answer 22

At divorce, spousal support (sometimes called maintenance or alimony) is awarded if a spouse’s separate property is insufficient for their maintenance. Courts are afforded significant discretion in making this determination and usually examine a spouse’s needs under the totality of the circumstances.

Question 23

Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:

Answer 23

Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment;

OR

Is the custodian of a child such that it would be inappropriate for him to work.

Question 24

Once the court determines that a spouse is eligible for support, the court will then determine the appropriate amount to award.
Factors include

Answer 24

General factors include:

The financial resources of the party seeking maintenance;

The time necessary for the spouse seeking support to obtain an appropriate job (includes time needed for education or training);

The duration of the marriage;

The standard of living established during the marriage;

The age and physical/emotional condition of the spouse seeking maintenance;

The ability of the spouse paying support to meet her own needs while meeting those of the spouse seeking support.

NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT a factor considered in determining the amount of spousal support to be awarded.

Question 25

In most states, a spousal support order can only be modified when...

Answer 25

... there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Question 26

Some courts will NOT permit a modification of spousal support if...

Answer 26

... the change in circumstances was anticipated or voluntary.

Question 27

Parents have an absolute obligation to...

Answer 27

... support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must: Consider the income of the non-custodial parent; Provide for the child’s healthcare needs; AND Be based on specifically descriptive numeric criteria (i.e., a formula).

Question 28

As to child support and Education Expenses...

Answer 28

Some states require support for the child’s continuing education. In such states, a child may lose their support if the child fails to follow the obligor parent’s reasonable instructions.

Question 29

In all states, there is a rebuttable presumption that the amount of support produced by the state’s formula..

Answer 29

... is proper.

Question 30

Duration. Child support obligations generally last until

Answer 30

the child reaches the age of majority or is otherwise emancipated (e.g., becomes married, enters the military, etc.).

Question 31

In most states, a child support order can only be modified when...

Answer 31

... there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Question 32

Some courts will NOT permit a modification of child support if the change in circumstances was

Answer 32

... anticipated or voluntary. If the obligor voluntarily made this change, courts usually require that the obligor prove the change occurred in good faith, rather than to punish the obligee or deprive the child of support (e.g., voluntarily quitting a job to reduce income in order to pay less child support is usually not allowed).

Question 33

The state that originally issued the child support order...

Answer 33

... has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of the obligee, child, or obligor (i.e., no other court can attempt to modify a child support order if the obligee, child, or obligor remains a resident of the state that issued the order).

Question 34

As to child support, Federal law:

Answer 34

Bars courts from retroactively modifying child support orders; AND Requires states to give full faith and credit to child support awards from other states.

Question 35

The interstate enforcement and modification of child support is governed by

Answer 35

the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all states.