TERMINATION OF THE MARRIAGE

Question 1

ANNULMENT

Answer 1

A declaration that a marriage is invalid because there was an impediment at the time of the marriage. Once decree is entered, parties are treated as though the marriage never existed. Heard in equity courts. The state of domicile OR the place of celebration of the marriage of either party has jurisdiction.

Question 2

Annulment Grounds

Answer 2

Bigamy, Consanguinity, Nonage, Incurable Physical Impotence, Lack of Capacity (Age)

(1) Void. {ABC} Age, Bigamy, Consanguinity

(2) Voidable. Age (can ratify once of age), Impotence, Lack of capacity

Question 3

Annulment Defenses

Answer 3

Only defense is to deny the existence of the defect. If the impediment has been removed and the parties continue the relationship, the marriage becomes valid in state following UMDA. Ratification is the most common defense in an action to annul a voidable marriage. Laches, Estoppel, or Unclean hands are also defenses.

Question 4

Annulment Support and Division of Property

Answer 4

Spousal Support: Generally, not awarded in annulment actions. Once spousal support has been terminated by remarriage, will not be reinstated if remarriage is annulled.

Division of Property: Courts attempt to place the parties in their pre-marriage position and usually give each party that property to which he has legal or equitable title

Question 5

Legal Separation

Answer 5

An order of legal separation does not terminate the marriage, but may have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding. It’s usually capable of being enlarged into an absolute divorce if the parties so request.

Question 6

DIVORCE

Answer 6

A decree of absolute divorce terminates the marriage relationship.

i) No Fault Divorce. (i) Marriage is irretrievably broken (irreconcilable differences or incompatibility); AND/OR (ii) the parties have been living apart for a statutorily specified time. The only defense to a no-fault divorce is to deny the existence of one of the above grounds.

ii) Fault. (1) adultery; (2) willful desertion for a specified time; (3) Extreme physical or mental cruelty; (4) voluntary drug addiction or habitual drunkenness; (5) a spouse’s mental illness.

Question 7

Defenses to Fault

Answer 7

{CCCR}
Connivance (willful consent of misconduct);
Collusion (agreement between spouses to simulate grounds for divorce or forgo raising a valid defense);
Condonation (forgiveness of marital offenses with full knowledge of their commission – Resumption of marital relations);
Recrimination (party seeking divorce is also guilty of misconduct).

Question 8

Jurisdiction & Recognition

Answer 8

One of the parties must be domiciled in the jurisdiction where the action is brought. Most states set a durational residency required before an action may be filed. (90 days.)

• Full Faith and Credit. As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states. Provisions of the decree relating to property rights, spousal support, child support, etc, are given full faith and credit only if the court had PJ over the Defendant.
• Comity. Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment.

**Prelim interlocutory decrees vs Final. Be careful: some questions will say that a decree was granted, but is NOT YET FINAL-