ending a marriage

Question 1

annulment

Answer 1

voids a marriage and declares it as having never been valid

Question 2

void marriage

Answer 2

treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose

Question 3

what makes a marriage void?

Answer 3

• prior existing marriage: the later marriage is void; some states allow the marriage to become valid if one party had a good-faith belief that the marriage was valid and the impediment is removed (there is a rebuttable presumption of validity of the latest marriage)
• incest: a prohibition on marriage between related persons
• mental incapacity: a person who is unable to understand the nature of the marriage

Question 4

voidable marriage

Answer 4

valid until a judicial decree dissolves the marriage

Question 5

what are the grounds for a voidable marriage?

Answer 5

• age
• impotence
• intoxication
• fraud
• duress
• lack of intent

Question 6

equitable distribution of property in annulment

Answer 6

a party may request and equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage

Question 7

treatment of children in annulled marriage

Answer 7

children of annulled marriage are considered marital children

Question 8

what are the defenses to a void marriage?

Answer 8

the only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable

Question 9

what are the defenses to a voidable marriage?

Answer 9

equitable defenses of:
- unclean hands
- laches
- estoppel

Question 10

putative marriage/spouse doctrine

Answer 10

a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void

Question 11

divorce and separation - residency requirement

Answer 11

most states require at least one party to be a resident of the state in which divorce/separation is sought

Question 12

grounds for divorce - no-fault

Answer 12

• marriage is irretrievably broken and there is no prospect of reconciliation
• irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action

Question 13

what are the various grounds for a fault divorce?

Answer 13

• adultery
• desertion
• cruelty
• desertion
• habitual drunkenness
• bigamy
• imprisonment
• institutionalization for insanity

Question 14

fault grounds for divorce - adultery

Answer 14

it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence

Question 15

fault grounds for divorce - cruelty

Answer 15

the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and makes the continued cohabitation between the parties unsafe or improper

Question 16

fault grounds for divorce - desertion

Answer 16

results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent

Question 17

fault grounds for divorce - habitual drunkenness

Answer 17

frequent intoxication that impairs the marital relationship (does not have to be alcoholism)

Question 18

fault grounds for divorce - bigamy

Answer 18

when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage

Question 19

fault grounds for divorce - imprisonment

Answer 19

imprisonment of one spouse for a specified period of time

Question 20

fault grounds for divorce - institutionalization for insantiy

Answer 20

institutionalization for insanity with no reasonable prospect of discharge or rehabilitation

Question 21

defenses to fault-based divorce

Answer 21

• recrimination
• unclean hands
• connivance
• condonation
• collusion
• provocation
• insanity
• consent
• justification
• religion

must be affirmatively pleaded

Question 22

community property

Answer 22

most community property states require equal division of marital property

minority of states - AZ, CA, ID, LA, NV, NM, TX, WA, and WI

Question 23

equitable distribution

Answer 23

the objective of an equitable distribution system is a fair distribution of marital property, not necessarily an equal division

most states

Question 24

marital property - most states

Answer 24

all property acquired during marriage

Question 25

marital property - some states

Answer 25

all property owned by either spouse

Question 26

nonmarital property - burden of proof

Answer 26

the burden of proof is on the party asserting property is nonmarital

Question 27

nonmarial property (separate property)

Answer 27

- property acquired before the marriage - property excluded by the parties' valid agreement - property acquired by gift or inheritance (except for gifts between spouses) - any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received

Question 28

factors for distribution of marital property

Answer 28

- length of marriage; - prior marriages; - age, health, earnings, earning potential, liabilities, and needs of both spouses; - contributions to education; - income, medical needs, retirement of both spouses; - homemaking and child-rearing services; - value of separate property; - reduction in valuation in marital property by one spouse; - standard of living; - economic circumstances of each spouse at the time of divorce; - custody of any minor children

Question 29

treatment of specific types of martial property - professional licenses/degrees

Answer 29

not a property interest, but can affect alimony

Question 30

treatment of specific types of martial property - retirement or pension benefits

Answer 30

marital property if acquired during the marriage

Question 31

treatment of specific types of martial property - personal injury claim proceeds/workers' compensation award

Answer 31

some states: if the cause of action accrued during marriage, the proceeds or award are marital property other states: allocate the proceeds or award between marital property and separate property - damages for pain/suffering/disability - separate property for the injured spouse - consortium losses - separate property of the non-injured spouse - awards for lost wages, loss of earning capacity, and medical expenses - typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss wages or medical expenses after the termination of the marriage (separate property)

Question 32

treatment of specific types of martial property - goodwill

Answer 32

the reputation and clientele of a professional practice is considered marital property in some states

Question 33

treatment of specific types of martial property - accumulated sick and vacation days

Answer 33

states split on classification; depends on timing and nature

Question 34

treatment of specific types of martial property - expectancy interest in property

Answer 34

not distributable

Question 35

treatment of specific types of martial property - social security benefits

Answer 35

not subject to equitable distribution

Question 36

treatment of specific types of martial property - post-separation property

Answer 36

can be marital property (most states)

Question 37

treatment of specific types of martial property - unexercised stock options

Answer 37

marital property if acquired during marriage

Question 38

tax consequences of equitable distribution

Answer 38

- transfer of property between divorcing spouses is tax-free - transferee's basis in property—same as transferor's basis

Question 39

modification of property division

Answer 39

not permitted; the property division is based on the parties' assets at the time of the divorce

Question 40

consortium losses

Answer 40

deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor