Questions & Answers Series

Family Law Topics: Divorce; Marriage and Fraud; Property; Support

Property

Question:

Which of the following would be an example of dissipation of marital assets?

(A) Marie buys a valuable painting with marital funds for investment purposes that she enjoys but her husband, Samuel, does not.

(B) Lonnie buys an expensive gift for his mother-in-law to make her like him. She throws it away and tells him he is a good-for-nothing louse. 

(C) Winnie uses substantial marital assets to buy stock in a company that goes bankrupt after substantial accounting errors are made public.

(D) Realizing that his marriage is on the rocks, Bobby spends thousands of dollars to buy cocaine for himself and his friends to make himself feel better.

Answer:
Answer (D) is the best answer. This is an example of dissipation. See In re Marriage of Shuster, 586 N.E.2d 1345, 1360 (Ill. App. 1992) ("Dissipation of marital assets occurs when a spouse (1) uses marital property (2) for his or her own benefit for a purpose unrelated to the marriage (3) at the time when the marriage is in serious jeopardy or undergoing an irreconcilable breakdown.").

Answer (A) is incorrect. While Samuel might not enjoy the painting, it may well be a good investment and thus would not constitute dissipation. Dissipation involves the frivolous spending of marital assets. See Bojrab v. Bojrab, 786 N.E.2d 713, 726 (Ind. App. 2003).

Answer (B) is incorrect. While the result may not have been desired, this would not count as dissipation. Promoting good relations with one's in-laws would promote the marriage and would seem unlikely to be attempted when the marriage was coming to an end. See Bratcher v. Bratcher, 26 S.W.3d 797, 799 (Ky. App. 2000) (To establish dissipation, one must establish that the "dissipation occurred during a separation or when dissolution was pending and that there was a clear intent on the part of the dissipator to deprive the spouse of marital assets.").

Answer (C) is incorrect. Here, there seems to be a good faith attempt to increase marital wealth which is unsuccessful because of unanticipated difficulties. It would have been different if the investment were made in highly speculative stocks. See Gadomski v. Gadomski, 664 N.Y.S.2d 886, 888 (App. Div. 1997) (husband dissipated assets when investing in highly speculative stocks).

Support

Question:

Spousal support pendente lite is

(A) temporary alimony designed to give one of the spouses support while he or she gets training to be qualified to enter the job market.

(B) support for one of the spouses during the period in which the rights and responsibilities arising out of the divorce will be decided. 

(C) support which is just enough for the recipient spouse to be able to survive on.

(D) support for the spouse that is held in abeyance until an important factual matter is resolved.

Answer:
Answer (B) is the best answer. See Maynard v. Maynard, 399 A.2d 900, 901 (Md. App. 1979) ("an award of alimony pendente lite is a monetary payment pending the outcome of litigation which has been instituted but which has not been concluded").

Answer (A) is incorrect. What is described is rehabilitative support. See Eagerton v. Eagerton, 328 S.E.2d 912, 914 (S.C. App. 1985).

Answer (C) is incorrect. The amount of the award is a separate matter. See Knott v. Knott, 806 A.2d 768, 784 (Md. App. 2002) (pointing out that pendente lite orders "are designed to provide for purely temporary needs on a short term basis, whereas the provisions for support in a final judgment of divorce are perforce intended to be more permanent and cover equally essential but less frequent recurring living expenses"). 

Answer (D) is incorrect. The pendente lite award is supposed to provide income while matters are being decided.

Divorce

Question:

A no-fault divorce can be obtained

(A) whenever both parties agree that the marriage is no longer viable.

(B) only when neither party has committed a marital fault.

(C) when, e.g., the parties have lived separate and apart for the amount of time required by statute.

(D) only when neither party blames the other for the breakdown of the marriage.

Answer:
Answer (C) is the best answer. This is a paradigmatic example of a ground that does not impute fault to either party.

Answer (A) is incorrect. This is false. Even if the couple has agreed that their marriage is over, they still must meet one of the grounds established by the state, e.g., living separate and apart for the relevant period. See, e.g., Jackson v. Jackson, 284 A.2d 654 (Md. App. 1971) (couple denied divorce because they failed to meet the statutory requirements for living separate and apart).

Answer (B) is incorrect. This is false. A couple might be able to get a divorce on no-fault grounds even if both have committed marital faults. See, e.g., Davis v. Davis, 377 S.E.2d 640 (Va. App. 1989).

Answer (D) is incorrect. This is false. Each party may blame the other for the breakdown of the marriage but they nonetheless might make use of a no-fault ground like irreconcilable differences. See, e.g., Neidviecky v. Niedviecky, 657 N.W.2d 255 (N.D. 2003) (divorce granted on basis of irreconcilable differences, although husband treated wife badly and wife was unfaithful to husband).

Marriage and Fraud

Question:

When asking her to marry him, Bobby mentioned to Billie Joe that he had been a star football player in college. Billie Joe, who had always wanted to marry a football player, agreed to marry Bobby. Years later, after they had had three children together, Billie Joe found out that the only sport Bobby had played in college was foosball, and that he had never been very good at it. She immediately left him and went to court to have the marriage declared null and void. 

Which of the following is true?

(A) Billie had no need to go to court to have the marriage declared void, since it was void from the beginning because it was based on a lie.

(B) Billie will probably be successful because the majority of states will allow an individual to have a marriage declared void if the partner knowingly made a material misrepresentation that resulted in the celebration of the marriage in the first place.

(C) Billie will probably be unsuccessful because it is unlikely that the court would find that this misrepresentation went to one of the essentials of marriage.

(D) Billie will be unsuccessful because marriages cannot be declared void once children are born to the marriage.

Answer:
Answer (C) is the best answer. See Husband v. Wife, 257 A.2d 765, 768 (Del. Super. 1969) (discussing the "orthodox rule that only such fraud as goes to the very essentials of the marriage relation will suffice as ground for annulment"). 

Answer (A) is incorrect. This is false. As a general matter, a marriage based on fraud is at most voidable and is not void. See, e.g., Anonymous v. Anonymous, 85 A.2d 706, 715 (Del. Super. 1951) ("A marriage procured by fraud is, at most, a voidable marriage, as distinguished from a void marriage.").

Answer (B) is incorrect. This is false because most states require that the fraudulent misrepresentation not only be material but essential to the marriage. See Houlahan v. Horzepa, 135 A.2d 232, 234 (N.J. Super. Ch. 1957) ("The fraud required to annul consummated marriage must be of an extreme character and in an essential of the marriage relation.").

Answer (D) is incorrect. This rule of law is inaccurate. A marriage can be declared void even if children have been born of the union. Cf. Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex. 1966) (voidable marriage declared void while mother pregnant, thereby making child born out of wedlock).