Family Law exam #4 2023 with 100% correct answers

Annulment Declaration by the court that a valid marriage never existed despite existence of a marriage license, ceremony, lived together and perhaps had children •Nullification of a voidable marriage •Determined by facts in existence prior to the marriage [ex. consanguinity relationship, not free to marry due to age, etc.] Voidable Marriage •A marriage capable of nullification due to circumstances existing at the time of the marriage •Marriage which will be valid if no action is taken to annul it Examples of VOIDABLE marriages Consanguinity - Too closely related Capacity - Age Void ab initio marriage which has no legal effect from the offset - automatically null and void Divorce •Validity of marriage is not being challenged •Dissolution of marriage that once validly existed; the marriage is acknowledged •Granted as the result of events which occurred after the marriage •Marriage is terminated from the date of divorce •Spousal support may be available Legal or Judicial Separation Court order allowing parties to live separate and apart although they remain married Ends the "bed and board" relationship but not the marriage [don't want to live w/ him anymore, but not divorce him b/c I want his health insurance] Annulment vs. Divorce Annulment: nullifies the marriage as though the marriage never occurred. Spousal support UNAVAILABLE Divorce: terminates the marriage from the date of divorce Spousal support is available under certain circumstances requirements for the court to grant a judicial separation severe abuse or some severe dysfunction. Party wishing the other party to be removed from the home needs the marriage to continue b/c of the certain benefits associated w/ the eligibility for health insurance, etc. Void Marriage •Marriage is invalid whether or not a court makes this declaration •Considered void ab initio - invalid from the beginning •Not necessary to bring legal action to seek declaration that marriage is invalid [but parties often want the judicial declaration; they don't have to go to court to seek this declaration, but they often do so there's a record made of it.] Voidable Marriage •Court must declare the marriage invalid •If a judicial determination to this effect is made, it relates back to the time when the parties attempted to enter the marriage •If the marriage is never challenged in the courts, it remains valid •May be ratified or approved retroactively by agreement, conduct or inaction that can be interpreted as approval •Marriage the court declares invalid based on a petition from 1 of the parties and it meets the grounds associated in the statute for voidability bigamy The statute allows posthumous attacks [by family members] on marriage only in the case of___, a limitation that leads to the conclusion that only _____marriages are truly void in NC. Ratification Retroactive approval of a situation by agreement, contract or action reasonably indicative of approval This can occur with a voidable marriage If a party ratifies a voidable marriage by continued cohabitation after fraud or deception is discovered, [remain in a voidable marriage and don't do anything about it] the marriage is validated Would intoxication when you got married constitute an issue w/ capacity? Ex. grounds for annulment exist; party could argue in a petition to the court that he lacked contractual capacity at the time he got married b/c he was intoxicated. Needs to be done quickly or ratification would be assumed. Can fraud be used as a basis for annulment? •may not be used as the basis for an annulment •There is 1 statutory exception Statutory Exception to Fraud not being able to be used as basis for annulment •A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, •followed by the separation of the parties w/in 45 days of the marriage •which separation as been continuous for a period of one year, •shall be voidable •Fraud = girl is pregnant to induce the marriage, but girl wasn't really pregnant Procedural Requirements for Annulment in NC Civil Action requiring the filing and service of Summons & Complaint for Annulment on the defendant w/ Domestic civil action cover sheet NC Statute of Limitations for the initiation of Annulment procedures •No recognized Statute of Limitations for the initiation of Annulment procedures with the following exception: •Marriages in which children have been born may not be annulled after the death of one of the parties except for bigamy •the parties may have married in violation of the statute and adult children are seeking after the death of 1 of the parents to annul the marriage usually for purposes of an enhanced inheritance. Statute says you can't do that unless the defect claimed is bigamy.