Matthew A. Bradford I.

Family Law Exam

Professor Howard

Marital Property (Essay Question) a. Equitable Distribution 1. Case law requires courts to equitably distribute property at the time of divorce b. Anything acquired by the parties during the marriage is marital property 1. For example, if one of the parties uses income to by a ring, it is marital property 1. This is true for anything that is purchased c. If bought before the marriage, will belong to that person may consider increase in the property value for example, if property may have been remodeled together. d. Key: If it is marital property then both parties have the right to use it or have access to it. 1. If something is marital property then argue that both parties have to right to use it or have the right to access it because it is marital property and was acquired during the marriage. e. Exceptions to whether it is Marital Property 1. Things inherited by one partner during the marriage 1. If it is left to you, then its your separate property. Does not matter what happens to that money. 2. If things get commingled, however, and it is hard to trace, then you can make the argument for the right to access then. 2. Proceeds of a lawsuit or personal pain and suffering 1. If during marriage you get an award for pain and suffering on a tort settlement then that is yours. Everything else is marital property. 3. Anything that you owned prior to marriage. f. What would you do if your client in a divorce proceeding was being prevented from having access to that property? 1. File a motion prior to you filing a complaint 2. Enter an ex parte (temporary order) to act as a restraint from other people disposing of the marital property. 3. Present the motion and hope for the best. g. On the exam, if it is property acquired during marriage and purchased / investment made from one partner of marriage during the marriage then it is marital property 1. Conclude then with: Therefore, subject to equitable distribution. h. Gifts 1. Anything at the time of the marriage belongs to the individual 2. Gifts within the marriage separate property 3. Gifts between the couple specific to the person, stays with the person 4. Personal property that is identifiable belongs to that person, ex) car title i. Cut Off dates for Property 1. Date of physical separation 2. Date divorce complaint is filed (MI uses) 3. Judgment of Divorce j. Goal: To divide property equitably, 50/50. k. Community Property

Matthew A. Bradford

Family Law Exam

Professor Howard

1. Whatever acquired during the marriage is equally owned, has to be divided in the same way 2. Affects use as each spouse owns 50% of your income if one spouse does not have income, they still have the ability to run up the debt 3. Other spouse may be liable for this debt. II. Michigan is a no fault state for purposes of getting a divorce a. Courts in Michigan will not consider fault in making a decision on whether there should be a divorce. b. Not only do you not have to allege fault, you are not permitted to do so 1. Not allowed to mention in Complaint or in Open Court c. Policy: Grounds not necessary because it leads to couples disliking each other. d. Courts may consider fault as it applies to property division 1. This must be raised in a separate manner 1. Must be able to prove allegation Must relate to property! Tie fault to financial matters 2. Asking the court to divide the property unequally? o May see 60/40 (about as far as the court will go as to diving it unequally, however) a. No court will ever divide it 20/80; it will possibly be 5%, 10% off an equal balance o Benefit: Hope that property is divided unequally in favor of your client o Disadvantage: Having to prove what you allege! 3. Case law gave the court the option of considering fault with regards to marital property. A statute did not give the court this power. 4. Term for Foul: Meretricious Behavior 1. Must prove by: It is up to the court to decide meretricious behavior 5. Separate portion of complaint that says that during the portion of the marriage, the person was engaged in certain things that caused impact on the marriage. 6. Ask the court to consider fault when they look at the marital estate 1. Courts will look at criminal behavior (things that cost a lot of money) 2. Drug use (may have eat up savings) 3. Adulterous Relationships easy trail to create 4. Excessive gambling does hurt people e. Courts may consider fault in custody or alimony, however, court probably will not do this.

III.

Marriage to your First Cousin? (short answer) a. In Michigan, you cannot marry your first cousin;

Matthew A. Bradford

Family Law Exam

Professor Howard

1. However other states allow you to be able to marry your first cousin b. If first cousins in Michigan desire to marry, then they need to go to a state that allows marriage of first cousins. They can then go back to MI. Their marriage will then be considered valid in Michigan because it will be given Full Faith and Credit in MI and Michigan will therefore have to recognize it. c. You can marry your first cousin in Kentucky or Maryland. d. Full Faith and Credit Example where MI will have to recognize the validity of your marriage to your cousin 1. If you marry your first cousin in Kentucky or Maryland, states that allow you to marry your first cousin, and then you move to Michigan, then that marriage in Kentucky or Maryland, will be valid under Full Faith and Credit. IV. Exception to Full Faith and Credit a. Same-Sex Marriages 1. Offends social instabilities (subject to social instability) 2. Connecticut, Massachusetts, and California all recognize same sex marriages. Age a. If someone is underage will the marriage be recognized in Michigan? 1. No, this is not recognized in Michigan 1. There are not any states that permit that. Common Law Marriage Michigan stopped recognizing Common Law Marriage in 1957. 1. In Michigan, the parties will be just a couple of people that live together. If you are in a state that recognizes Common Law Marriage and if the parties hold themselves out as a couple who are married then in all likelihood they will be married at Common Law. Full Faith and Credit also kicks in for Common Law Marriage 1. Michigan will recognize what is a lawful act Stated that Recognize Common Law Marriage 1. Alabama, Colorado, DC, Iowa, Kansas, Montana, Oklahoma, Texas, Utah, South Carolina, Rhode Island and Pennsylvania 2. New Hampshire recognizes Common Law Marriage for the purpose of inheritance only 3. Hold themselves out as a married couple If you meet all of the requirements for a valid legal marriage and if you hold yourself out as a married couple then in those jurisdictions that recognize common law marriage, you would be considered married at common law. You cannot avoid the capacity requirements of marriage by entering into a common law marriage i. If you lack the capacity to marry then you lack the capacity to marry in any format

V.

VI.

Matthew A. Bradford

Family Law Exam

Professor Howard

If you enter into a common law marriage in a state that recognizes common law marriage that state will look at economic and social indicators or factors to determine if actually married. i. Economic Indicators / Factors (look at all of these factors to see if they consider themselves married) 1. Right to file a joint tax return 2. Own property together as husband and wife 3. Beneficiary on Life Insurance Policy 4. Insurance benefits from an employer, health insurance benefits, etc. (Health Insurance Form who is to be covered, relationship as spouse ii. Social Indicators / Factors 1. Having children together (not so much anymore) 2. Hold themselves out as husband and wife in social settings a. Introducing your partner as your spouse i. Outward indication that you consider yourselves married and intend society to think so. 3. Everyday words that use to describe someone youre involved with but not married example - sweetheart Time Limits i. No magic period of time ii. Case Law looks at this issue! How do you get out of a Common Law Marriage? i. Divorce (no such thing as common law divorce) ii. Death iii. No such thing as common law divorce iv. If you are married at common law, you are married v. If your spouse dies, then you are considered a widow vi. If valid in Iowa, will be recognized as common law marriage in MI 1. Full Faith and Credit will recognize a common law marriage! vii. If you want to separate then you have to get a divorce

VII.

Void Marriages If there is a void marriage, then you will not see an annulment proceeding Definition: A void marriage is one that has a defect that goes to capacity; A void marriage is one that the law says that the defect is so serious or so substantial that that marriage never could come into existence A void marriage has a defect to marry If you lack one of the following standards, then the marriage could be void: i. The two most common defects to void a marriage 1. Already being married to someone else at the time married newer spouse; and 2. Incest (if you are related) 3. Also, in some jurisdictions, an underage female that goes ahead and gets married; that marriage is void

Matthew A. Bradford

Family Law Exam

Professor Howard

ii. If you lack one of these, then the marriage is void. The ability to challenge a void marriage rests not only with the two parties themselves but with third parties i. The ability to challenge the validity of the marriage survives the death of either party of the marriage and even both of them 1. Where you usually see this issue being raised is during a probate setting when a third party, a child, is challenging the validity of this marriage. If the challenge is raised, there is only one defense that would prove the validity of the marriage THE TRUTH IS THE ONLY DEFENSE If someone challenges it ex) because still married to someone else and you can produce the marriage license (no other way to challenge) Need some proceeding, documentation, to terminate a void marriage

VIII. Voidable Marriages Definition: Voidable marriages are those that have a defect but it does not go to capacity; i. It goes to a concept of voluntariness, mutual agreement, fraud ii. Only affects the partners Seek an Annulment Proceeding (Lead to annulment procedure) Only the partners can raise the issue of a voidable marriage 1. No one else is affected by fraud as the two in the marriage so only then can raise those issues! 2. Only the partners to the marriage can challenge a voidable marriage 1. This is because only they would know about the issues Defenses 1. The Truth 2. Contract defenses, such as Laches or Estoppel There has to be fraud and it has to be such that it induced the person to marry or had they known about it they would not have married. The Court looks at a number of different things as it relates to fraud. The Law presumes Two Things 1. Married couple will have sex. 2. Right to expect that they will have children. Too late to complain after 40 years (of not having intercourse). 1. No requirement of time, but the longer you put up with it, it becomes unrealistic to expect it. Fraud in the Inducement to Marry 1. False Claim of Pregnancy 1. For example, if she knows that she is not pregnant and she says that she is then that is fraud 2. Also, if she is indeed pregnant and she knows she is but she knows that it isnt his child and tells him that it is, then that is also fraud. 1. He wouldnt have married her if he had not known that she was pregnant.

Matthew A. Bradford

Family Law Exam

Professor Howard

2. Sexually Transmitted Disease 1. If conceal STD then fraud in the inducement. 3. Concealed inability to Procreate 1. Law presumes couple will have intercourse and law presumes that children will be a possibility 2. Because of this, if you enter into the marriage and know that you are physically incapable of having children then that is fraud in the inducement to marry. 3. Must share the fact that you cannot have children! 4. Concealed intent to consummate the marriage 1. For example, if you enter into the marriage knowing that you will never have sex and you do not tell your partner then that is fraud in the inducement to marry. 1. Law presumes that things like that will happen in marriage 2. You can agree to not do those things but if one party does not think anything is wrong then that is fraud in the inducement to marry. 3. As to this issue, the court will look at whether they may have had sex before the marriage. 4. Look at: What was her frame of mind going into the marriage? 5. Not getting around to having sex in the marriage will not be enough as to make it voidable. 5. Marriage entered into by force or duress (missing the element of a mutual, voluntary agreement) 6. Shotgun Marriage 1. For example, Nevada allows the annulment for not being of sound mind 1. Being drunk is not a basis for annulment but it is a basis for annulment in Nevada Procedure is very similar to a divorce You file a complaint for an annulment 1. With a no fault you do not have to prove anything (divorce), with annulment, you have to prove fraud in the inducement 1. For example for fraud in the inducement with respect to concealing the inability to procreate, you must prove the following elements: 1. Has to allege fraud in the inducement to marry 2. Has to allege that she knew that she could not have children 3. That she concealed information prior to marriage 4. He would not have married her had he known that she could not have children. 2. If you allege one of these in complaint, then you would have to prove it. Not easy to prove. Other than that, annulment and divorce proceeding are similar, and the result is the same.

Matthew A. Bradford

Family Law Exam

Professor Howard

The end result is a judgment of annulment; it is a finding of the court that the particular thing (the marriage) never existed. Children of an annulled marriage are legitimate children; court will protect the legitimacy of the children Some case law that causes property to be divided unequally No time period but be reasonable Benefit: Bottom line: This marriage never existed - Important for some people to say that they have never been married, legally able to say that; whether or not it makes it easier to get an annulment from the catholic church. Annulment Proceeding (begin w/ filing complaint similar to divorce) 1. Must allege nature of fraud and be able to prove it 2. Court enters annulment and divorce never exists 3. If property divided the same as divorce 4. Children court will protect, may still be a child support order 5. There is still a waiting period before finalized 60 days