Family Law for the Paralegal Third Edition CHAPTER

Family Law for the Paralegal Third Edition CHAPTER 4 Annulment Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

What Is an Annulment? • An annulment is the legal procedure for declaring that a "marriage" is null and void from its inception. – It essentially establishes by civil law that the marriage never existed. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

What Is an Annulment? • A religious annulment nullifies a marriage for religious purposes only. – The parties remain married under the civil law until the marriage is annulled by legal process. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

What Is an Annulment? • An annulment is the "other side of the marriage coin" in the sense that it addresses situations in which one of the requirements for a entering a valid marriage was not satisfied. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • Annulment – One or both parties claim the purported marriage does not exist. – The ground exists at the inception of the "marriage. " – An annulment declares the marriage null and void from the outset (ab initio). – Some rights previously terminated upon the "marriage" may be revived. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • In some states, rights to property acquired during the marriage may be extinguished and in others they may be preserved using equitable remedies. • Absent a statute, there is usually no right to spousal support following an annulment. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • If the parties filed joint tax returns in the 3 years prior to the annulment, they must each file amended returns. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • Divorce – Divorce severs a marriage the parties acknowledge exists. – In the vast majority of cases, the cause for divorce arises after the marriage was established. – Divorce terminates a marriage as of the date of the divorce judgment. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • Divorce – Traditionally after divorce, the parties have a continuing legal status as former spouses with respect to custody, support, and property division. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • Alimony and other benefits flowing from a prior marriage usually are not revived following divorce. • In a divorce, marital property is usually divided based on community property or equitable distribution principles. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Primary Differences Between Annulment and Divorce • In some states, spousal support may be awarded based on one party's need and the other party's ability to pay. • Divorced spouses may file a joint tax return for the year in which their divorce is granted assuming they are married for some portion of that year. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Difference Between a Void and a Voidable Marriage • Void Marriage – Was never valid because it involves a union prohibited by law § Such as when one party is already married to another person still living Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Difference Between a Void and a Voidable Marriage • Voidable marriage – Remains valid until it is rescinded in an action typically by a party who has been wronged. – If no action is taken to annul the marriage, it will remain valid. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Difference Between a Void and a Voidable Marriage • Some states do not distinguish between void and voidable marriages. • In some of the states that do, it may not be necessary to seek a legal declaration of nullity in the case of a void marriage for the "marriage" to be deemed legally invalid. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment • Although grounds for annulment vary state to state, they typically fall into four categories: 1. Grounds related to technical procedural requirements for a valid marriage set by state statute/regulation 2. Grounds related to legal capacity to marry based on state marital restriction laws Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment • Although grounds for annulment vary state to state, they typically fall into four categories: 3. Grounds related to consent/intent to marry 4. Grounds related to physical factors and sexual conduct established by statute and/or case law Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment • These technical procedural requirements must be met for a "valid" marriage to exist: – An application for and issuance of a license to marry signed under pain and penalty of perjury by persons eligible to marry – A marriage certificate Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment • These technical procedural requirements must be met for a "valid" marriage to exist: – A ceremony performed by someone licensed – Return of an executed marriage certificate to the appropriate keeper of legal records. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Legal Capacity to Marry • Nonage – Below the minimum age to marry without parental consent or judicial approval • Consanguinity – Too closely related by blood under state law Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Legal Capacity to Marry • Affinity – Too closely related by marriage under state law • Bigamy/polygamy – Entering a subsequent marriage while a prior marriage of one or both parties is still in effect Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Legal Capacity to Marry • Since the Obergefell decision in 2015, all states must permit both heterosexual and same-sex couples to marry Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Intent to Marry • Fraud – A party made a false statement of a material fact with an intent that the other party rely on the statement to his or her detriment by entering a marriage. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Intent to Marry • The fraud must go to "the essentials of marriage" (having children, etc. ) and the courts generally must be able to find that the innocent party would not have entered the marriage were it not for the fraud. – See Paralegal Application 4. 1 on page 118 for a description of the Elements of Fraud. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Intent to Marry • Lack of consent – There was no shared intent at the time of the marriage to share the rights and duties of marriage (due to mental incapacity, intoxication, etc. ). Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Intent to Marry • Duress – A threat of harm was made that compelled a party to enter a marriage contrary to his or her free will or judgment. • Undue influence – A party entered a marriage contrary to his or her free will or judgment in response to another's improper use of power or trust. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds for Annulment Related to Intent to Marry • Underage – At the time of the marriage a party was of an age when parental consent or judicial approval was required to enter a valid marriage Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds Related to Physical Factors and Sexual Conduct • Disease – When a party to a marriage conceals from his or her spouse the existence of an incurable sexually transmitted disease, an annulment may be granted in some circumstances. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds Related to Physical Factors and Sexual Conduct • Impotence – If not known prior to the marriage, inability to have sexual intercourse is a ground for annulment in some jurisdictions, although failure to consummate a marriage is not necessarily a ground. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Grounds Related to Physical Factors and Sexual Conduct • Lack of consummation – A willful failure or refusal to consummate a marriage and/or cohabit without good cause may be grounds for annulment in a minority of states. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Compliance with state statutes governing marriage – The defendant complied with the requirements for a valid marriage in the state where the marriage was entered. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Ratification of the marriage by subsequent conduct – For example, the plaintiff continued to live with an initially underage defendant after he or she reached the permissible age to marry. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Consummation of the marriage – Though not necessarily dispositive, consummation is considered evidence of an intent to be married. • Laches – The plaintiff "slept on his or her rights" and unreasonably delayed in bringing the action thereby prejudicing the defendant's rights. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Equitable estoppel – The plaintiff should not be allowed to assert his or her claim because it will be unfair to the defendant who, for example, may have relied on acts or representations of the plaintiff and could not have known the true facts. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Judicial estoppel – The plaintiff should not be allowed to prevail because he or she seeks to gain an unfair advantage by making inconsistent statements to the court on the same issue in different lawsuits. – See Case 4. 2 Pickard v. Pickard (2006) on page 123 -124 of the text. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Potential Defenses to an Annulment Action • Res judicata – The matter has already been decided in another judicial proceeding such as a divorce action. • Unclean hands – The plaintiff should not be granted relief because he or she acted wrongfully, unfairly, or illegally. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • For the parties: – Although the states vary, the general rule is that property division and spousal support provisions do not apply as they would following a divorce although some courts provide for support by statute or by applying equitable principles. § See, for example, Case 4. 3 Williams v. Williams (2004) on pages 125 -127 of the text in which Nevada's high court adopted the putative spouse doctrine in the annulment context. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • For the parties: – The states vary with respect to whether or not a prior alimony award will be revived following an annulment, but the majority rule is that it will not. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • An annulment decree may revive a party's legal status and rights in some respects such as entitlement to Social Security and worker's compensation death benefits flowing from a prior marriage. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • For the children: – In most states, children born to marriages that are subsequently annulled are deemed "legitimate" under state law. They are typically described as "children born out of wedlock. " – Courts in annulment actions will usually make orders for the care, custody and maintenance of the parties' minor children. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • For the children: – Children of annulment may need to establish legal parentage to establish inheritance rights or to file wrongful death or workman's compensation claims for injury to a parent. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Consequences of an Annulment • For the children: – Children of annulled marriages are required to go through extra bureaucratic steps to establish their rights to citizenship or a variety of federal dependent-based benefits. – When the marriage of a minor child is annulled, the duty of his or her parents to pay child support is revived. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • Annulment procedures vary from state to state. • The initial pleading may be called a Complaint, Petition, Libel, among others depending on the jurisdiction. • In some cases, a party may file a declaratory judgment action seeking clarification with respect to the validity of his or her marriage. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • Once filed, the process is essentially the same as for other civil actions: service, answer, related motions, discovery, negotiation, hearing/trial (in which the court may address related issues such as children, property, and support), decree. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • The burden of proof is on the person challenging the validity of the marriage given the strong public policy favoring marriage. • The standard of proof is usually clear and convincing evidence. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • Parties with standing to bring an annulment action include: – The parties (although some states provide that only an innocent party can file) – A parent or guardian on behalf of a minor – A conservator or guardian on behalf of a ward Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • Parties with standing to bring an annulment action include: – Sometimes the administrator or executor of a decedent's estate – In the case of a void marriage, children and certain other third parties Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

Procedure for Obtaining an Annulment • An annulment action usually cannot be brought after the death of a party if the marriage was followed by cohabitation and the birth of children. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

The Paralegal's Role in an Annulment Case • The paralegal's role in an annulment case is essentially similar to the role played in other kinds of cases with respect to basic case management and drafting tasks (including pleadings, motions, discovery requests, memoranda, correspondence, etc. ). Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

The Paralegal's Role in an Annulment Case • The paralegal plays an important role in gathering information and documentation to support the client's case. Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved

The Paralegal's Role in an Annulment Case • Research is a critical function in annulment cases which sometimes involve choice of law and conflict of law issues, i. e. which law will govern various aspects of the action? Family Law for the ICD-10 -CM/PCS Coding: Paralegal, A Map Third Edition to Success Lorraine M. Papazian-Boyce Mary E. Wilson Copyright © 2017 by Pearson Education, Inc. All Rights Reserved