Annulment

(or Judical Statement)

Divorce or Dissolution of Marriage

Legal Separation or Judicial Separation

(ends the "bed abnd board" relationship but not the marriage part)

Is one that a court must declare annulled and in order for it to be recognized as such.

Is a marriage that is invalid only if someone challenges it and a court declares it invalid.

In Ohio, the only void marriages are same-sex marriages and incestuous marriages.

Normally, only the innocent party. The wrongdoer is estopped from suing.

Estopped

(Marriage by Estopped)

The husband and wife are too closely related by blood.

The husband and wife are too closely related by marriage.

NOT A GROUND FOR ANNULMENT IN OHIO

[image][image]In Ohio, the minimum marrying age is 18 for men, 16 for women. [ORC 3101.01 (A)]

Action for annulment must be brought by the under-age party or his or her parent or guardian within 2 years after such party reaches the minimum age, unless such party cohabited with the other as husband and wife after reaching the minimum age

Prior Existing Marriages

Bigamy

Entering or attempting to enter a second marriage when a prior marriage is still valid.

In Ohio Bigamy is a 1st degree misdemeanor.

Prior Existing Marriage

Civil Action to Annul

Prior Existing Marriage

Polygamy

1. Multiple simultaneous marriages,

2. Having more then one wife at the same time.

Prior Existing Marriages

Enoch Arden Defense

The presumption that a spouse is dead after being missing for a designated number of years.

Minimum time to be missing is often 5 years.

Not of Minimum Age (Nonage) Continued

The minimum age may differ, however, depending on whether:

1.Parental consent exists

2.The female is already pregnant

3.The child has already been born out of wedlock

Duress

Coercion; acting under the pressure of an unlawful act or threat.

In Ohio, action for annulment must be brought by aggrieved party within 2 years after marriage ceremony.

Knownly making a false statement of present fact with the intention that the plaintiff rely on the statement. The plaintiff is harmed by his or her reasonable reliance on the statement.

In Ohio, action for annulment must be brought by aggrieved party w/in 2 years after discovery of facts

-If marriages is valid in state celebration, courts in most other states will recognize it validity.

-If marriage is invalid in state of celebration, courts in many states will not annul a marriage that is valid according to its law.

-Most courts have used an essentials test: did the matter go to the heart or essence of the relationship?

-The fraud must involve the essentials of the marital relationship, usually defined as those aspects of the marriage that relate to having future sexual relations and having children.

Materiality Test:

If a specific event had not occurred would the result had been different?

-Annulment negates inheritance rights of spouses.

-Annulment does not change child custody and support obligations that arose when the couple treated themselves as married.

Ohio Fault  Grounds for Divorce 

• At the time  of marriage, either party already had  a living spouse (Bigamy);
• Willful absence of the adverse party for one year; (Desertion)

Ohio Fault  Grounds for Divorce

[ORC 3105.01, 3105.17]

• Adultery, Extreme Cruelty,Fraudulent Contract,Any gross neglect of duty, Habitual drunkenness,Imprisonment in state or federal correctional institution at time of filing complaint

Party seeking divorce has also committed

a serious marital wrong

• A judicial separation  is a decree that two married people  can live separately while remaining husband  and wife. The decree establishes rights and duties between the parties while they are separated. Grounds for such a decree must be established. In Ohio, grounds for a judicial “legal” separation are exactly the same as grounds for divorce.

• On the application  of either party, when husband and wife  have, without interruption for one year, lived apart without cohabitation;
• Incompatibility, unless denied by either party. 
• Petition for dissolution of marriage signed by both spouses, with attached separation agreement. 
   

• An action for  separate maintenance is one brought by  one married partner to secure financial  support from the other partner.
• The basis for the action is the refusal or failure of the defendant spouse to support the complaining spouse without just cause.
  

Husband and/or wife travel to another state to obtain a divorce, establish(es) domicile there, obtain(s) the divorce and then returns to the home state.

• If domicile is valid, the home state must give full faith and credit to the decree of the foreign state.

A divorce decree enforceable only in part. A divorce decree can:

• Dissolve the marriage;
• Award spousal support;
• Award child support;
• Divide marital property;
• Award child custody.

A divorce  decree may accomplish all these objectives,  or only some of them, depending on what type(s) of jurisdiction it has.

A divorce in which the dissolution of the marriage is tried separately from the financial and other issues.

This enables the court to issue the divorce decree ending the marriage, before time consuming financial and other issues are resolved. The parties can thus get on with their separate lives while the financial issues are resolved.

• Subject Matter Jurisdiction,
• Is in a state having In Rem Jurisdiction, and
• Is in the proper location, or Venue, within the state.

The “subject  matter” is “divorce.”

Only certaincourts in each state have the power,  or “jurisdiction,”

 to decide divorce cases.

In  Ohio, this court is  usually*

the  Court of Common Pleas

in  each county, or

its  Domestic Relations Division.

No Federal  Court has the power to decide a divorce  case, even if it otherwise qualifies as  a Diversity of Citizenship case.

*One exception is  Stark County, which  has a separate “Family  Court,” whose jurisdiction  includes Domestic  Relations and Juvenile  cases.

Subject  Matter Jurisdiction

•  In Rem Jurisdiction is a court’s jurisdiction over a thing, object, or status of something.In a divorce action, “In Rem” refers to the status of the marriage, and “In Rem Jurisdiction” is the power to change that status by issuing a divorce decree;Whether a state has “In Rem” jurisdiction is determined by the domicile of one or both spouses.A person’s domicile is the place Where he or she has physically been; With the intention of making that place his or her permanent home; or with no intention of making any other place a permanent home.

In  Rem Jurisdiction (con’t) Venue

 In Ohio, the proper venue for a divorce or annulment

action is the county in which the plaintiff has resided f

or 90 days prior to filing the complaint.

Personal service of process on defendant in

another state pursuant to the state’s long arm

statute relating to divorce causes of action.

Personal  Jurisdiction over the  Defendant

• If either party  is a minor or if defendant is insane,  the court may require that party to  be represented by
•  a guardian ad litem.Some states require a waiting period
  
• after initial pleadings, to allow time for possible reconciliation,
  
• mediation, or even dismissal of the action, before other
  
• proceedings take place.

Pre-Trial Matters  (con’t)

Judgement

• In many states,the court issues an interlocutory decree that
  
• does not become a final decree until after a specified
•  period of time.This allows the parties a final opportunity
•  to reconcile and cancel their divorce.
• A default judgment can be entered against a
  
• defendant who does not appear.

• Effect of BankruptcyProperty division debts are not necessarily discharged by bankruptcy, but there are two major exceptions:
  Alimony (as well as child support) obligations are not discharged by bankruptcy.
  The debtor does not have enough assets to pay the property division debt and all other debts.
• The debtor can show the benefit of discharging the property division debt outweighs the harm caused to the other spouse.

3. Distinguishing between Alimony and Property Division


Labels used in the Agreement or Decree: They are  only one indication of whether the payments  are for alimony or property division.Contingencies:If payments end on happening of a certain event,  particularly remarriage or

death of recipient,that is strong evidence theyare supportpayments (alimony).

• Distinguishing between  Alimony and Property Division
  • Method of payment: Single lump  sum suggests Property Division. Periodic/Fluctuating  payments suggest alimony.
  • Nature of what is transferred:

     Money suggests  alimony. Other property  suggests property division.

Property Division

• Categorizing Property
  • Real property (real estate)
  • Tangible personal property (things)
  • Intangible personal property (stocks, bonds, bank accounts, investment accounts, etc.)

2. How and When Acquired?


Separate Property: Property acquired before the marriage
Property acquired by gift, will, or intestate inheritance
Property purchased with separate property
Marital Property:All other property acquired during the marriage.All income from and increase in value of separate property during the marriage. All commingled property

3. How Is the Property Held? Who Has Title?


Legal title in name of one spouse only


Joint Tenancy or Tenancy by the Entirety


Each party has undivided interest in property, with right of survivorship. It is not a part of the estate of the first one to die.


Tenancy in Common: Each party has a share or percentage interest in the property. Each party may sell or will his share of the property to another person.

 4. What Property is Divided & Who Gets What?

If there is a separation agreement, the judge may approve the distribution agreed upon by parties.Community Property States:All marital property is split evenly.Common Law Property States (Ohio)All marital property is split equitably:What contribution did each make to the acquisition of the property?Length of the marriage.What did other party contribute to the household while the asset was been earned?

 5. Adjustment for dissipation of assets:


Add the amount dissipated to the current total value of all assets to determine what the marital property would have been worth had there been no dissipation.Divide this “would-have-been” total either in half or equitably.Give the party who did not dissipate their portion of the “would-have-been” total.Give the party who did dissipate the remainder (their portion minus what they dissipated).

• Property Division  terms rarely can be modified.

  Ohio  forbids modification. Many states give their courts broad power to modify spousal support terms, but not Ohio.  Ohio  allows modification only if the separation agreement specifically authorizes it, and circumstances of spouses has changed.Child Support  and Child Custody provisions are almost  always modifiable.

• Physical  (“Residential”) Custody: Right to decide where child will reside.
• Joint Physical Custody: Child spends some time with one parent and some time residing with the other parent.

• Legal  Custody: Right to make major child-rearing decisions on health, religion, education, discipline, and general welfare.
• Joint Legal Custody: Parents agree jointly on major child-rearing decisions.
• Split Custody: Children of the marriage are placed with different parents. Judges prefer not to do this, but it is sometimes the best solution.

• Mediation by private  trained counselor.Factors consideredby judges in determining “best interests of child”: 

  Modification  of Custody Order Possible grounds  for modification:Significant change in circumstances,New facts presented to court.Examples of such circumstances or facts:Custodial parent’s abuse/neglect of child.Custodial parent has moved contrary to court order, making visitation difficult.Custodial parent’s changed lifestyle is negatively affecting child.Custodial parent’s mistakes are ongoing, relatively permanent, and detrimental to child

• Jurisdiction to  Issue Initial Custody Order ,“Home State” Custody Jurisdiction,
  • The state where child has lived with parent for past 6 consecutive months immediately before filing cases.If child less than 6 months old, state where child has lived since birth .Or, state where child had been living with parent for 6 consecutive months prior to leaving state but parent still living there and case filed within 6 months of child leaving

• Jurisdiction to  Issue Initial Custody Order, “Significant Connection/Substantial Evidence” Jurisdiction
  • No other state is “home state” of child, or if there is a “home state,” that state has declined jurisdiction, Child and at least one parent have “significant connection with the state,There is also “substantial evidence” of child’s care, protection, training, and personal relationships

• Jurisdiction to  Issue Initial Custody Order
• 3. “Temporary  Emergency Custody” Jurisdiction Child is present in state. Child has been abandoned or an emergency exists requiring child’s protection because child, a sibling, or a parent is being subjected to domesting violence.Custody order remains in effect only until state with “home state” or “significant connection/substantial evidence” jurisdiction intervenes

• • State with “home state” or “significant connection/substantial evidence” jurisdiction may decline to exercise it because it determines it is an incovenient forum.Reasons why a court in one state might defer to another state:
    • Domestic violence occurring in other state
    • Child has been in other state a longer time
    • Financial burden of party in other state
    • Important evidence is in other state

• Jurisdiction to  Modify Custody Order
  • State making the initial custody order has exclusive continuing jurisdiction to modify order or otherwise act in the case, except:When child and its parents no longer reside in state, or When court with exclusive continuing jurisdiction determines child and parents do not have a “significant connection” with the state and “substantial evidence” is no longer present

• State making the initial custody order has exclusive continuing jurisdiction to modify order or otherwise act in the case, except:
  • When a court in another state with temporary emergency jurisdiction issues a temporary order
    • But the court with exclusive continuing jurisdiction can intervene with a permanent order at any time.

• State making the initial custody order has exclusive continuing jurisdiction to modify order or otherwise act in the case, except:
  • When a court in that state declines to exercise such jurisdiction if doing so would not harm the child and parent is guilty of dirty hands, for instance, by blatant forum shopping.

• Nonresident personally  served within state.
• Nonresident submits to jurisdiction by consent, by entering a general appearance, or by filing document having effect of waiving contest to personal jurisdiction.
• Nonresident had resided in state with child.
• Nonresident resided in state and provided prenatal expenses and support of child.

• Child resides  in state as a result of acts or  directives of nonresident.
• Nonresident engaged in sexual intercourse in the state and child may have been conceived as a result of that intercourse.
• Nonresident asserted parentage in state such through a putative father registry.

• Custodial parent  can register a child support order by  its home state court in the appropriate  court or agency in the home state  of the noncustodial parent:
  • The custodial parent uses a local IV-D child support agency to help send the order to the tribunal in the other state.
  • The tribunal of the other state can enforce, but not modify the support order.

• Under the UIFSA,  the custodial parent still does not have  to travel to the home state of the  noncustodial parent.
• The custodial parent files a petition for child support in a IV-D agency in its home state.
• The IV-D agency helps the parent forward the petition to an agency or court in the noncustodial parent’s state.

• The UISFA gives  preference to the order issued by the  “home state,” defined as:
  • the state where the child lived with a parent for at least 6 consecutive months, or continuously since birth if less than 6 months old (periods of temporary absence are ignored).

• A “substantial  change in circumstances” such as:
  • Unexpected illness or other increased needs of child;
  • Increased resources of child;
  • Increase or decrease of one or both parent’s ability to support the child (other than “self-imposed poverty”).